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Commonwealth of Pennsylvania v. Laura Legere and the Times-Tribune

July 31, 2012

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PETITIONER
v.
LAURA LEGERE AND THE TIMES-TRIBUNE, RESPONDENTS



The opinion of the court was delivered by: Judge Covey

Submitted: June 22, 2012

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COVEY

The Department of Environmental Protection (DEP) petitions for review of the Office of Open Records' (OOR) December 5, 2011 final determination, ordering DEP to release all responsive records requested by Laura Legere and The Times-Tribune (collectively, "Legere") under the Right to Know Law (RTKL)*fn1 within thirty days. DEP raises five issues for this Court's review: (1) whether the OOR erred when it concluded that Legere's request was sufficiently specific; (2) whether the OOR should have considered the burden on DEP to locate and produce the records when determining whether Legere's request was sufficiently specific; (3) whether the OOR erred in directing DEP to produce the records when DEP had produced evidence that it conducted a good faith search; (4) whether Section 705 of the RTKL*fn2 excuses DEP's obligation to produce the records; and (5) whether DEP provided sufficient evidentiary support to assert RTKL exemptions. We affirm.

On September 6, 2011, Legere submitted requests under the RTKL to three DEP regional offices, seeking:

All Act 223, Section 208 determination letters issued by the [DEP] since January 1, 2008, as well as the orders issued by [DEP] to well operators in relation to those determination letters, as described in Section 208 of the Oil and Gas Act. ('If [DEP] finds that the pollution or diminution was caused by the drilling, alteration or operation activities or if it presumes the well operator responsible for pollution pursuant to subsection (c), then it shall issue such orders to the well operator as are necessary to assure compliance with subsection (a)').

Reproduced Record (R.R.) at 6a.

On October 13, 2011, DEP's regional offices partially granted the requests, providing access to some responsive records*fn3 and denied the remainder of the requests, stating in part:

[Y]our request is denied in part because, as written, it is not sufficiently specific. Your request for [Section] 208 determination letters issued since January 1, 2008, and the orders issued by [DEP] to well operators in relation to those determination letters, fails to provide specific names, geographic locations, well or permit numbers, and/or complaint numbers. Absent this specific information, we have no systematic way to search for the records that you request.

Namely, our files are not maintained in such a fashion that allows us to look for all Section 208 determination letters and corresponding orders without having the specific information identified above. Consequently, we are unable to determine if other responsive records exist for the time period that you have requested. . . . .

Additionally, some of the records that might potentially be included in your request may also be exempt under the RTKL, for reasons including, but not limited to: Section 708(b)(6) -- personal identification information; Section 708(b)(17) -- complainant and non-criminal-investigative information; Section 708(b)(1)(ii) -- personal security information; Section 708(b)(10)(i)(A) -- internal predecisional deliberations; and Section 708(b)(2,3) -- security information. Furthermore, records may also be exempt as privileged under the attorney-client privilege or attorney-client work product.

R.R. at 16a-17a. DEP's letters from the other two regional offices contained similar language.

By letter dated November 3, 2011, Legere appealed the three responses to the OOR. The OOR consolidated the appeals and permitted both parties to supplement the record. On November 17, 2011, DEP submitted a position statement and three notarized affidavits.*fn4 On December 5, 2011, the OOR issued its final determination, finding: (1) that Legere's appeal is denied with respect to the request from DEP's Northwest Regional Office, since Legere failed to pay the required copying fee*fn5 for the requested records; (2) that Legere's request was sufficiently specific; and (3) that DEP failed to establish that any exemption(s) or privilege protects the responsive records. Accordingly, the OOR ordered DEP to provide all responsive records to Legere within thirty days. DEP appealed to this Court. *fn6

DEP first argues that the OOR erred when it concluded that Legere's request was sufficiently specific under Section ...


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