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Department of Transportation v. Earle Drack

March 27, 2012

DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
EARLE DRACK, RESPONDENT



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Submitted: November 10, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge*fn1 HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION BY JUDGE BROBSON

Petitioner Department of Transportation (DOT) petitions for review of an order of the Pennsylvania Office of Open Records (OOR).*fn2 OOR's order granted the appeal of Earle Drack (Drack), in part, and dismissed the remainder of his appeal as moot. Drack sought review of DOT's response to his request for records relating to a speed control device referred to as ENRADD EJU-91 (ENRADD). Specifically, OOR's order directed DOT to provide Drack with access to unredacted documents, which DOT had previously provided to Drack in redacted format. We affirm.
The procedural history is significant to the resolution of this matter, and we summarize that history below. In a letter DOT received on January 3, 2011, Drack requested, under the Right-to-Know-Law (RTKL):*fn3 (1) copies of all DOT correspondence regarding ENRADD; (2) copies of all versions of calibration procedure used for ENRADD; and (3) copies of all versions of operator's and/or training manuals for ENRADD. (Reproduced Record (R.R.) at 10a.)
DOT responded to Drack's request by letter dated January 10, 2011. (R.R. at 12a.) In that letter, DOT informed Drack that it was exercising its right under Section 902(a)(4) of the RTKL*fn4 to take an additional thirty (30) days (until February 9, 2011) to respond to Drack's request "in order to make a legal determination whether the documents requested are subject to access under the RTKL." (Id.) DOT mailed a letter to Drack on February 9, 2011. (R.R. at 14a.) In that letter, DOT states that, based upon its election to use the RTKL's thirty-day extension, its "final response is due . . . on or before February 9, 2011" and, that "[t]his response is provided pursuant to that requirement." (Id. (emphasis added).) The letter inconsistently provides, however:

This is an interim response to indicate that your request will be granted, insofar as it covers public records under the RTKL that are described with sufficient specificity. We reserve the right, in our final response, to assert any exceptions to production under the RTKL, such . . . as but not limited to, 65 P.S. §§ 67.708(b)(3)(i) and 65 P.S. §§ 67.708(b)(4).

However, our records show that you owe money in the total amount of $16.38, relating to two other requests to [DOT] . . . . Pursuant to Section 901 of the RTKL and our agency RTKL Policy . . . this amount must be paid before we can process your RTKL request to this agency.

Once payment is received [DOT] will process your request further and will proceed to: 1) make a final determination as to what records, if any, are public records under the RTKL; 2) begin search and retrieval of those records; 3) perform any required redaction; and 4) advise you as to a date by when the records will be produced.

If full payment is not received for your prior RTKL requests to [DOT] by March 3, 2011, we will consider the request to be withdrawn for lack of payment.

Further, nothing in this letter shall be construed as a waiver of any available exceptions under the RTKL. (Id. (emphasis added).) The letter also advised Drack that he had a right to appeal DOT's response to OOR, and that, in such an appeal, Drack would be required to offer reasons to OOR why he believed DOT was wrong to require pre-payment. (R.R. at 22a.)

On February 22, 2011, Drack appealed DOT's February 9, 2011 response to OOR. (R.R. at 16a--22a.) In his appeal, Drack noted that the only reason DOT provided in its January 10, 2011 response for exercising its right to a thirty (30)-day extension under Section 902(a)(4) of the RTKL, was to enable DOT to make a legal determination as to whether the requested records were subject to access under the RTKL. (R.R. at 17a.) Drack noted that DOT inconsistently characterized its February 9, 2011 letter as both an interim and final response to his request. (Id.) Drack asserted that DOT had misinterpreted the RTKL:

If [DOT] wished to delay processing my request until the $16.38 was paid, the time to say that was in the initial response within 5 days as described clearly in Section 902(a)(6) and 902(b). The law has no provision for "re-starting the clock" AFTER the 5-day and 30-day intervals, which is what [DOT] appears to be trying to do. Since [DOT] did not raise the issue of the outstanding $16.38 in their initial response, as required by law if that issue is to be raised in regard to the instant request, then it cannot be raised after the 30-day final response period has been exhausted. (Id. at 17a-18a (emphasis in original).) Based upon this reasoning, Drack argued that OOR should regard DOT's February 9, 2011 response as a deemed denial based upon untimeliness because DOT did not address his request on the merits in that letter. (R.R. at 18a.) Based upon DOT's inaction, Drack contended, OOR should direct DOT to produce the requested records. (Id.)

In accordance with OOR's appeal procedures, OOR sent a form letter to Drack and DOT on February 22, 2011, advising the parties that the record in the appeal would be closed in seven days and advising DOT that it must provide a factual and legal basis for its denial of Drack's request. (R.R. at 24a.) Additionally, the form letter advised that "any exceptions not raised in the agency's original response to the request are waived. See Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010). New grounds raised in the appeal will not be considered." (Id.)

In its submission to OOR, DOT relied upon its view that, because Drack had an outstanding balance on previous RTKL productions from DOT, Section 901 of the RTKL did not impose upon DOT a requirement to review and produce in response to Drack's request until Drack paid for his previous requests. DOT asserted that its approach fully complied with the RTKL and that, once Drack paid his balance for the previous requests, during the pendency of this appeal before OOR, DOT timely provided Drack with redacted records in response to his request. DOT indicated that when it produced the required records, it redacted some of the records based on its belief that the records were protected by the attorney-client privilege.

In its initial decision, entitled "Amended Final Determination," the Appeal Officer reasoned that, although Section 901 of the RTKL provides an agency with the authority to refuse to provide a requester with access to requested documents until the requester pays for the records produced, pursuant to Section 1307(h) of the RTKL, an agency may not "refuse to process a request or identify grounds for withholding records prior to payment of fees unless the copy fees exceed $100." (R.R. at 66a.) The Appeal Officer noted that, although DOT did not provide a substantive ground for providing redacted records to Drack in its February 9, 2011 response, DOT offered the attorney-client privilege as a substantive ground during the course of the appeal. The Appeal Officer, however, concluded that DOT failed to provide an evidentiary and/or legal basis in support of its claim relating to the attorney-client privilege. Thus, the Appeal Officer concluded that DOT was required to provide Drack with unredacted copies of the records it produced in response to Drack's request.

DOT filed a petition for reconsideration with OOR, raising several issues: (1) whether OOR improperly addressed issues in its consideration of Drack's appeal that Drack did not raise and which Drack should have raised in an appeal from DOT's later substantive response to Drack's request; (2) whether OOR erred in its application of the law regarding the attorney-client privilege; (3) whether OOR erred in concluding that the RTKL's pre-payment provision does not apply to forestall a response to a current record request based upon a requester's unpaid balance to the agency; and (4) whether OOR ...


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