Argued: June 19, 2013
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge
This is a Right-to-Know Law (RTKL) appeal from a final determination of the Office of Open Records (OOR) that dismissed an appeal on jurisdictional grounds. Ryan Bagwell (Requester) sought records from the Pennsylvania Department of Education (Department), specifically the Secretary of Education (Secretary) in his capacity as an ex officio member of the Pennsylvania State University (PSU) Board of Trustees (Board). Although the request did not expressly refer to the Sandusky scandal, the time frame implicates such records. After initially responding to Requester on the merits, the Department claimed the appeal to OOR should be dismissed for lack of jurisdiction over PSU records.
OOR reasoned it lacked jurisdiction over the appeal because the request sought records of PSU, which is not a defined agency under the RTKL. Requester contends jurisdiction was proper because he made the request to the Department, a Commonwealth agency. He also argues the records are not exempt. Both parties ask this Court to address the exemptions, although OOR did not reach them. Because OOR had jurisdiction, we reverse and remand for further proceedings as to the applicability of the asserted exemptions.
Requester sought records from the Department, specifically "copies of letters, emails, reports and memorand[a] received by Secretary of Education Ronald J. Tomalis that were: (1) received by Secretary Tomalis in April, May, June and July of 2012; (2) sent to Secretary Tomalis during his official capacity as a member of [PSU]'s Board of Trustees; and, (3) sent by any of the below-mentioned individuals who are associated with [PSU] .…" Reproduced Record (R.R.) at 1a-2a (Request). The 38 people identified in the Request are current or former members of the Board, employees of the Board, prior counsel to the Board, a former PSU President, and a spokesperson for the Board.
The Department denied the Request in part on the following grounds: attorney-client and attorney work-product privileges; the Predecisional Deliberative exception in Section 708(b)(10) of the RTKL, 65 P.S. §67.708(b)(10); the Noncriminal Investigative exception in Section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17); and, the Personal Information exception at Section 708(b)(6) of the RTKL, 65 P.S. §67.708(b)(6). The Department provided some responsive records and additional records in redacted form. Significantly, the Department did not challenge whether the records were "of" the Department or contest possession of the records.
Requester appealed to OOR, asserting the Department did not describe the records it withheld. Requester also argued the Department did not explain how the asserted exemptions applied.
The Department submitted a letter memorandum outlining its legal basis for withholding the records. The Department also represented that the only records responsive to the Request are from either a PSU Board member or Board staff. See Department Letter, 8/23/12, (Letter), R.R. at 19a-23a. Counsel signed the Letter below the following statement: "Under penalty of perjury, I swear that the facts set forth herein are true and correct to the best of my knowledge, information and belief." R.R. at 23a. The Department explained the Secretary was the co-chairman of the Board's Special Investigations Task Force (Task Force), created to investigate the allegations underlying the Sandusky scandal. For the first time, in response to Requester's appeal, the Department claimed the records requested are not Department records under the RTKL.
In support of its argument that the records are not "of" the Department, the Department advised it disclosed certain records to Requester before it learned of OOR's decision in another case involving the Governor, and his capacity as a PSU Board member, Schackner/The Pittsburgh Post-Gazette v. Office of the Governor, OOR Dkt. No. AP 2012-0329 (issued Apr. 4, 2012). In Schackner, OOR determined that correspondence between PSU and the Governor, in his capacity as a PSU Board member, were not records because PSU is not defined as an agency under the RTKL. The Department explained the only responsive records were communications from Board members or Board staff to another Board member (i.e., the Secretary); therefore, the correspondence were not Department "records" as defined in Section 102 of the RTKL, 65 P.S. §67.102. Under Schackner, the Department argued, OOR should dismiss the appeal.
In the alternative, the Department asserted the records withheld are protected by the Noncriminal Investigative exception, and attorney privileges because they pertain to the Task Force, and the Secretary's role as its co-chairman. The Department also argued the records are protected by the Predecisional Deliberative exception because the Secretary received the communications "as a Board member for purposes of contemplating or proposing policy or courses of action by the Board." See Letter at 4; R.R. at 22a. Notably, aside from counsel swearing to the content of the Letter, the Department did not submit any evidence in support of its cited exemptions.
In rebuttal, Requester argued the Secretary is part of a Commonwealth agency, and serves on the Board ex officio on behalf of the Department.Therefore, the records qualify as records of an "agency" as defined by the RTKL, and OOR should review the merits. Requester also asked OOR to undertake in camera review of responsive records in accordance with OOR's Interim Appeals Guidelines posted on its website.
OOR issued its final determination dismissing the appeal based on its prior decision in Schackner. OOR did not explain its reasoning beyond its statement that PSU is not an agency subject to the RTKL; thus, its records are outside the scope of the RTKL. Requester appealed to this Court, challenging the dismissal and asserting the public nature of the records.
Procedurally, Requester challenges the sufficiency of the Department's representations in its partial denial. Requester asserts the Department did not comply with Section 903 of the RTKL, 65 P.S. §67.903, in describing responsive records or the exemptions. In addition, Requester claims the Department waived any jurisdictional argument because it responded to the Request on the merits, and did not raise jurisdiction in its initial response.
Substantively, Requester argues the records are "of" an agency because the correspondence at issue was sent to the Secretary in his official capacity as an ex officio PSU Board member. He contends the Secretary holds a position as a member of the PSU Board as a means of the Department overseeing PSU as one of the state-related institutions it regulates. As a consequence, the records evidence the Department's oversight and knowledge of PSU activities. Further, OOR erred in holding the appeal was not within its jurisdiction because the records at issue originated with PSU. He also asserts the records are not protected by any of the exemptions, and the Department did not properly explain or prove any exemption.
Interestingly, the Department changed its theory of the case on appeal to this Court. The Department abandoned its reliance on OOR's reasoning in Schackner. Instead, the Department asks us to affirm on alternate grounds, focusing on the substantive exemptions cited in its initial response to Requester. To the extent it addresses the status of the records as "of" PSU in its brief, the Department contends PSU is a third party that lacks rights under the RTKL, and raises a concern that PSU's records may not be entitled to RTKL-based protection.
A. The Department's Initial Response
At the outset, we address Requester's procedural claims. Requester argues that the Department did not comply with Section 903 of the RTKL (regarding denial of a request). Requester asserts the Department's alleged defective response should preclude it from denying access. Requester also contends the Department waived any argument that the records are "of" PSU, and beyond OOR's jurisdiction because it did not allude to that defense in its initial response.
Section 903(2) of the RTKL requires an agency to set forth "specific reasons for the denial, including a citation of supporting legal authority." 65 P.S. §67.903(2). We acknowledge the Department's partial denial does not adequately describe the responsive records to which the alleged exemptions apply, and it does not correlate exemptions ...