Robert T. McClintock, Appellant
Coatesville Area School District
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.
COHN JUBELIRER, JUDGE.
Robert T. McClintock (Requester) filed four Right-to-Know Law (RTKL) Requests for records from the Coatesville Area School District (District). The District did not respond to his Requests within five business days; therefore, under the RTKL,  his Requests were "deemed denied." Receiving no response, Requester first appealed to the Office of Open Records (OOR), which partially granted his Requests, and then to the Court of Common Pleas of Chester County (trial court), which affirmed the OOR's Final Determination, and now to this Court. Requester argues that the District's failure to respond at all to his initial RTKL Requests should result in the waiver of the District's right to raise any exceptions set forth in Section 708(b) of the RTKL as defenses to his Requests on appeal. However, based upon our Supreme Court's recent decision in Levy v. Senate of Pennsylvania, ___ Pa. ___, 65 A.3d 361 (2013), we conclude that a deemed denial does not result in a deemed waiver. Accordingly, we affirm.
Requester submitted four Requests for records to the District on March 10, 2011, seeking documents relating to Graystone Academy Charter School (Graystone). The District did not respond to the Requests within five business days as required by Section 901 of the RTKL; Requester therefore filed four separate appeals with the OOR dated March 18, 2011. (Appeals to OOR, R.R. at 23a-31a.) The OOR consolidated the appeals and invited the parties to submit information in support of their respective positions regarding the Requests. (OOR Letter to Parties, April 7, 2011, at 1-2.)
Responding to the appeal, the District: (1) agreed to provide some of the requested documents; (2) stated that some of the requested documents did not exist; and (3) refused to produce the remaining requested documents based upon the noncriminal investigation exception of the RTKL,  the predecisional deliberations exception of the RTKL,  and attorney-client privilege. (Final Determination at 2; District Letter to OOR, March 28, 2011, C.R. at Item 13; District's Brief in Opposition to OOR Appeal at 2, C.R. at Item 16.) The District provided the affidavit of Dr. Angelo Romaniello, Jr., Assistant Superintendent and Administrative Liaison to the Board, in support of its refusal to provide Requester access to the requested documents. (Final Determination at 3; District's Brief in Opposition to OOR Appeal, Ex. A, C.R. at Item 16.)
Requester filed a reply with the OOR. (Final Determination at 4; Requester's Reply Brief, C.R. at Item 17.) Among other arguments, Requester contended that the District had waived all exceptions from disclosure as provided for in Section 708(b) of the RTKL as a result of the deemed denial of the Requests, or, in the alternative, that the District had not proven that the records were not subject to disclosure under the RTKL. (Final Determination at 4-5; Requester's Reply Brief, C.R. at Item 17.)
Upon review, the OOR first held that the District's failure to respond to the Requests did not result in the waiver of the District's right to assert a reason for denying the Requests on appeal. (Final Determination at 7.) Based upon this Court's decision in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010), the OOR rejected Requester's contention that permitting the District, after it failed to timely respond to the Requests, to assert reasons for denying the Requests on appeal to the OOR "'does not allow for an expeditious resolution of the dispute.'" (Final Determination at 5 (quoting Signature Information, 995 A.2d at 513).) Recognizing that, pursuant to Signature Information, an agency may not alter its reason for a denial between the initial denial and the appeal, the OOR determined that because the denial in this matter was a "deemed" denial, the District did not alter its grounds for denial, but instead "set forth grounds during the appeal that the Requester had the opportunity to address." (Final Determination at 7.)
The OOR then evaluated the merits of the denial of the Requests and ordered the disclosure of some, but not all, of the records to which the District had denied access. (Final Determination at 8-9.) Requester appealed the OOR's Final Determination to the trial court, again contending that all records sought had to be provided because the District waived all exceptions from disclosure provided by the RTKL when its failure to timely respond to the Requests resulted in an automatic deemed denial. The trial court distinguished this Court's decision in Signature Information and rejected Requester's contention. The trial court further held that the OOR properly denied the Requests for the records that remained in dispute. This appeal followed.
On appeal, Requester does not challenge the OOR's Final Determination on the merits of the District's denials. The only issue before us is whether a failure to respond to a RTKL request, which is considered a "deemed denial" under Section 901, results in a deemed waiver by an agency of all the exceptions set forth in Section 708(b) as defenses on appeal to the OOR. Section 901 provides that the time for an agency to respond to a RTKL request "shall not exceed five business days from the date the written request is received" and if the agency fails to respond within five business days, "the written request for access shall be deemed denied." 65 P.S. § 67.901.
In Signature Information, the requester submitted a request to the township seeking real estate tax information. The township denied the request, giving as its reason that the information was available on the county's website. The requester appealed the denial to the OOR, which permitted the parties to submit additional information. At that point the township asserted, for the first time, that it denied the request pursuant to Section 705 of the RTKL, 65 P.S. § 67.705, and alleged that it was not required to create a record that did not exist. The OOR ordered the township to disclose the records and the township appealed to the trial court, which held, inter alia, that the township was not limited to its initial reason for denying the RTKL request.
On appeal, we reversed the decision of the trial court, holding that the RTKL does not permit an agency that has given a specific reason for a denial to assert a different reason on appeal. Signature Information, 995 A.2d at 514. We pointed out that an agency must include specific reasons for denying a RTKL request pursuant to Section 903(2) of the RTKL,  and that an appeal of such denial to the OOR must address any grounds set forth by the agency for the denial pursuant to Section 1101(a)(1) of the RTKL. Id. at 513. We reasoned that "[if] an agency could alter its position after the agency stated it and the requester addressed it in an appeal, then the requirements in [S]ections 903(2) and 1101(a)(1) of the [RTKL] would become a meaningless exercise." Id. at 514. We further reasoned that "permitting an agency to set forth additional reasons for a denial at the appeal level does not allow for an expeditious resolution of the dispute" as required by Section 1102(b)(3) of the RTKL.
After the current matter was appealed to this Court, our Supreme Court issued its decision in Levy. There, a journalist sought, through a RTKL request, "documents relating to the legal representation of Senate Democratic Caucus employees." Levy, ___ Pa. at ___, 65 A.3d at 363. The Senate open records officer provided the documents with portions redacted based upon attorney-client privilege. Id. at ___, 65 A.3d at 364. On appeal to the Senate Appeals Officer, the Senate, for the first time, asserted additional alternate reasons for non-disclosure of the redacted portions. Id. at ___, 65 A.3d at 365. The Senate Appeals Officer determined that portions of the redacted documents were protected by attorney-client privilege but "that the Senate failed to demonstrate the necessary factual predicate for assertion of" the alternate reasons for non-disclosure. Id.
Upon review by this Court, we held, based upon Signature Information, that the Senate had waived all its alternate reasons for redacting documents relating to Senate members' hiring outside attorneys by failing to raise them in its initial written denial of Levy's RTKL request. Id. at ___, 65 A.3d at 367. The Supreme Court reversed our holding and held that this Court's "per se waiver rule set forth in Signature Information and its progeny is unnecessarily restrictive." Id. at ___, 65 A.3d at 383. The Levy decision specifically abrogated our holding in Signature Information that "an agency waives any reasons for non-disclosure not raised in its initial . . . written response" to a RTKL request. Id.
Although Requester recognizes the Supreme Court's decision in Levy, he urges this Court to revive the Signature Information waiver rule for this case because, here, the District ignored the RTKL Requests and provided no reason at all for its failure to provide the requested documents. Requester argues that where an open records officer acknowledges receipt of a request, yet ignores the request and provides no response, such blatant disregard for the right of public access to public records must be sanctioned by applying the Signature Information rule. Requester also argues that by permitting the District to assert the exceptions set forth in Section 708(b) of the RTKL on appeal of a deemed denial violates the RTKL's requirements that procedural matters be resolved fairly and expeditiously, and that the open records officer make a good faith effort in responding to a RTKL request.
In reaching its holding in Levy, the Supreme Court thoughtfully considered the concerns that Requester now raises before this Court. Finding the statutory language ambiguous, the Supreme Court weighed the "overriding purpose of the RTKL" of "ensuring expanded and expedited transparency in our government" and the "legislative intent to shield numerous categories and subcategories of documents from disclosure in order to protect, inter alia, the Commonwealth's security interests and individuals' privacy rights." Levy, ___ at ___, 65 A.3d at 382. The Supreme Court reasoned that "adoption of the Signature Information [r]ule undermines the specific legislative intent to shield these documents from disclosure, merely as a consequence of an open records officer's failure to list a legitimate reason for non[-]disclosure on the agency's initial written denial." Id. Recognizing that the deemed denial provisions, inter alia, set forth ...