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Montgomery County v. Paul Iverson

August 15, 2012

MONTGOMERY COUNTY
v.
PAUL IVERSON, APPELLANT



The opinion of the court was delivered by: Renee Cohn Jubelirer, Judge

Argued: May 16, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge

OPINION BY JUDGE COHN JUBELIRER

Paul Iverson (Requestor) appeals from the Order of the Court of Common Pleas of Montgomery County (trial court) that reversed the Final Determination of the Office of Open Records (OOR). The OOR's Final Determination granted Requestor's appeal of the denial of his request for records (Request) by Montgomery County (County). The trial court reversed the OOR's Final Determination that the County was not justified in denying the Request on the basis that it was insufficiently specific, per Section 703 of the Right to Know Law*fn1 (RTKL), 65 P.S. § 67.703. On appeal, Requestor argues that: the Request was sufficiently specific; the fact that the County's IT infrastructure is insufficient to easily meet the Request is irrelevant; and the County's denial of the Request effectively limits the number of documents a requestor may request, in violation of Section 1308 of the RTKL, 65 P.S. § 67.1308.

On December 3, 2010, Requestor submitted his Request by email to the County. The Request stated:

Pursuant to section 102 of the Commonwealth of Pennsylvania's right-to-know law, I am requesting an electronic copy of all email records to and from the mail domain, to and from the , , and domains, WHERE The email subject and body contain the following terms: Newton Fox Chase Fox Chase-Newton R8 HS-1 Pennypack Trail Greenway Pa-tec Bryn Athyn Pitcairn Parkhouse Lorimer Bethayres (Request, R.R. at 11a.) On December 10, 2010, the County notified Requestor that it would require additional time to review the Request. On January 10, 2011,*fn2 the County denied the Request (Denial), stating: your request is not sufficiently specific for the following reasons:

1. You did not identify a time period for which you are seeking emails.

2. You did not identify County senders/recipients for the emails you are seeking.

3. You did not identify the subject matter for the emails you are seeking.

(Denial, R.R. at 15a.) Requestor appealed the Denial to the OOR. In the appeal to the OOR, the County argued, in part, that complying with the Request would be impracticable. The OOR issued its Final Determination holding that the Request was sufficiently specific because it allowed the County to determine which records were being requested, and that the County's difficulty in producing the requested records would not alter their character as public records. The County appealed to the trial court, which held a hearing.

At the hearing, the County presented testimony from the County's Open Records Administrator, Burt Thomas Noonan, and the County's Infrastructure Development Manager, Anthony Olivieri. Crediting the testimony of the County's witnesses, particularly Mr. Olivieri, the trial court held that the Request was insufficiently specific because, in order to search the County's archived emails in the manner requested, the County would have to purchase additional, expensive computer hardware and even with the new equipment, the search itself would take weeks, not counting the time that would be necessary for individuals to review each email to determine what privileges or exemptions might apply. Requestor now appeals to this Court.*fn3

On appeal to this Court, Requestor argues that: (1) his Request was sufficiently specific; (2) if the County's IT infrastructure is unable to handle the Request, the County should upgrade its infrastructure or change the way it handles its emails in order to be able to comply with such requests; and (3) the trial court's holding violates Section 1308's provision that an agency may not limit the number of documents a requestor may request.

We first address Requestor's argument that the Request was, in fact, sufficiently specific because it allowed the County to ascertain what records he was requesting. Section 703 of the RTKL provides, in relevant part, that a request for records "should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested." 65 P.S. § 67.703. An open-ended request that gives an agency little guidance regarding what to look for may be so burdensome that it will be considered overly broad. Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa. Cmwlth. 2011). A request that is more narrow, however, may be sufficiently specific even though it requests broad categories of records. Easton Area School District v. Baxter, 35 A.3d 1259, 1265 (Pa. Cmwlth. 2012). In addition, the specificity of a request must be construed in the request's context, rather than envisioning everything the request might conceivably encompass. Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 516-17 (Pa. Cmwlth. 2010).

In Pennsylvania State Police, a requestor sought "[a]ny and all records, files, or manual(s), communication(s) of any kind, that explain, instruct, and or require officer(s) and Trooper(s) to follow when stopping a Motor Vehicle, pertaining to subsequent search(es) of that Vehicle, and the seizures of any property, reason(s) therefore (sic) taking property." Id. at 515-16 (emphasis in original) (alteration in original). This Court held that the part of the request seeking "any and all records, files, or communications of any kind," was not sufficiently specific, but that the part of the request seeking "'manual(s),'" in the context of vehicle stops and seizures of property meant "'manual(s)' relating to vehicle ...


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