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Commonwealth of Pennsylvania Office of the Governor v. Sean Donahue and the Office of Open Records

January 23, 2013

COMMONWEALTH OF PENNSYLVANIA OFFICE OF THE GOVERNOR, PETITIONER
v.
SEAN DONAHUE AND THE OFFICE OF OPEN RECORDS, RESPONDENTS



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

Argued: December 10, 2012

BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge (P.) HONORABLE P. KEVIN BROBSON, Judge

OPINION BY JUDGE BROBSON

Before the Court are the cross-applications for summary relief filed by Petitioner Office of the Governor (the Office) and Respondent Office of Open Records (OOR). The Office seeks a declaratory judgment that under Section 901 of the Right-to-Know Law (RTKL)*fn1 the five-day timeframe within which an agency is required to respond to a written request for records begins on the day on which an agency's open-records officer receives the request. The Office initiated this action in response to a decision of OOR, which concluded that the five-day timeframe within which an agency is required to respond to a written request for records begins on the day on which any agency employee receives the request. We now grant the Office's application for summary relief and deny OOR's cross-application for summary relief.

On March 7, 2012, Sean Donahue (Donahue) submitted a written request for records pursuant to the RTKL via e-mail to the Office, seeking various budgetary and employment records. (OOR Opinion at 1.) On March 19, 2012, the Office of General Counsel (OGC) issued a letter to Donahue, stating that on March 12, 2012, Donahue's request was received by the open-records officers of the Office and other agencies to which the request was also directed, but that the request was not directly received by the open-records officers from Donahue. (Id. at 2.) The letter further provided that OGC was issuing a response on behalf of the agencies, granting the request in part and denying the request in part for various reasons. (Id.)

On March 29, 2012, Donahue timely appealed to OOR. (Id.) In addressing Donahue's appeal, OOR determined that Donahue's request was deemed denied. (Id. at 5.) OOR stated that under Section 901 of the RTKL, "[i]f the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied." (Id.) OOR reasoned that Section 703 of the RTKL*fn2 provides that "[a] written request must be addressed to the open-records officer designated pursuant to [S]section 502 [of the RTKL],"*fn3 and that "[e]mployees of an agency shall be directed to forward requests for records to the open-records officer." (Id.) OOR determined that Donahue sent the request on March 7, 2012, to several recipients, including an employee of the Office, with the subject line of the e-mail providing "FOIA & Right to Know Request---Multiple Agency---(Regarding Luzerne County)." (Id.) OOR also noted that the body of the e-mail included a salutation addressed to the Office. (Id.) OOR, therefore, concluded that any Office employee receiving the e-mail had an obligation to forward the e-mail to the Office's open-records officer to issue a response within five business days (i.e., on or before March 14, 2012). (Id.)

OOR recognized that the Office's open-records officer attested that the Office did not receive a copy of the request until March 12, 2012, but OOR cited one of its own opinions for the proposition that "[an agency's] error in processing [a request] does not alter the agency's responsibility to timely respond under the RTKL." (Id. at 6 (alterations in original).) OOR reasoned that the request showed that it was e-mailed to an Office employee and that the e-mail indicated that the request was made pursuant to the RTKL. (Id.) OOR further reasoned that the affidavit did not indicate that the e-mail sent on March 7, 2012, was not received by the Office. (Id.) Thus, OOR determined that the Office received the request on March 7, 2012, and that the request clearly put the Office and its employees on notice that a response under the RTKL was required within five business days. (Id.) OOR concluded that because the Office did not issue a response by March 14, 2012, the request was deemed denied. (Id. at 5.) Ultimately, however, OOR denied Donahue's appeal, concluding that the request was insufficiently specific. (Id. at 8.)

On May 24, 2012, the Office filed the subject action with this Court, seeking, in part, a declaration that OOR is misinterpreting the RTKL with respect to the commencement of the five-day response time listed in Section 901 of the RTKL.*fn4

The purely legal issue now before the Court is whether Section 901 of the RTKL requires an agency to respond to a written request for records within five days of the request's receipt by the agency's open-records officer or by any agency employee.*fn5

The Office contends, inter alia, that the plain language of Section 901 of the RTKL is clear and unambiguous, providing that the five-day timeframe within which an agency must respond to a written request for records commences when the "written request is received by the open-records officer for an agency."

OOR presents several arguments supporting the conclusion that an agency's response time commences when any agency employee receives the request. OOR contends that its interpretation is the only logical, internally consistent reading of Section 901 of the RTKL, as it is in accordance with the plain language of Section 901's provisions. Furthermore, OOR argues that in Pennsylvania Gaming Control Board v. Office of Open Records, 48 A.3d 503 (Pa. Cmwlth. 2012) (PGCB), this Court held that the five-day response time listed in Section 901 commences upon receipt of a request by an agency. Among other policy arguments, OOR contends that the Office's interpretation would prohibit a requester from knowing when the deadline to appeal begins to run and would prevent OOR from knowing when an appeal is timely. Moreover, OOR essentially argues that the Office's interpretation would make the commencement of the response time dependent on agency discretion and would incentivize agencies to delay forwarding requests in order to gain more time to respond or enable agencies to refuse to respond until the agency's open-records officer receives the request.

At the outset, we note that Section 502 of the RTKL requires all agencies to designate an open-records officer. 65 P.S. § 67.502(a)(1). Furthermore, an agency's open-records officer is the only person authorized to handle requests made pursuant to the RTKL. Id. § 67.502(b); PGCB, 48 A.3d at 509. With this in mind, we now consider the proper interpretation of Section 901 of the RTKL. That section provides, in relevant part:

Upon receipt of a written request for access to a record, an agency shall make a good faith effort . . . to respond as promptly as possible under the circumstances existing at the time of the request. . . . The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency. If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied. 65 P.S. § 67.901.

When interpreting a statute, this Court is guided by the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, which provides that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa. C.S. § 1921(a). "The clearest indication of legislative intent is generally the plain language of a statute." Walker v. Eleby, 577 Pa. 104, 123, 842 A.2d 389, 400 (2004). "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. C.S. § 1921(b). Only "[w]hen the words of the statute are not explicit" may this Court resort to statutory construction. 1 Pa. C.S. § 1921(c). "A statute is ambiguous or unclear if its language is subject to two or more reasonable interpretations." Bethenergy Mines Inc. v. Dep't of Envtl. Prot., 676 A.2d 711, 715 (Pa. Cmwlth.), appeal denied, 546 Pa. 668, 685 A.2d 547 (1996). Moreover, "[e]very statute shall be construed, if possible, to give effect to all its provisions." 1 Pa. C.S. § 1921(a). It is presumed "[t]hat the General Assembly intends the entire statute to be effective and ...


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