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Bowling v. Office of Open Records

Supreme Court of Pennsylvania

August 20, 2013

BRIAN BOWLING, Appellee
v.
OFFICE OF OPEN RECORDS, Appellant, PENNSYLVANIA EMERGENCY MANAGEMENT AGENCY, Intervenor

Argued September 13, 2011

Page 454

Appeal from the Order of the Commonwealth Court at No 936 CD 2009 dated February 5, 2010 reversing and remanding the order of the Office of Open Records at No. AP 2009-0218 dated April 17, 2009. Appeal Allowed March 8, 2011 at 158 MAL 2010. Intermediate Court Judges: Bonnie Brigance Leadbetter, President Judge, Dan Pellegrini, Renee Cohn Jubelirer, Robert E. Simpson, Johnny J. Butler, JJ.990 A.2d 813 (Pa.Cmwlth. 2010).

For PA School Board Association, AMICUS CURIAE: Emily J. Leader, Esq., PA School Board Association, Inc.

For Pennsylvania Emergency Management Agency, INTERVENOR: Andrew H. Cline, Esq., PA Department of Transportation; Patrick Anthony Kane III, Esq.; Jose E. Morales, Esq.; Tammi Brooke Snyder, Esq., PA Emergency Management Agency.

For Office of Open Records, APPELLANTS: Dena Lefkowitz, Esq., Office of Open Records; Terry Lee Mutchler, Esq., Pennsylvania Office of Open Records; J. Chadwick Schnee, Esq.

For Brian Bowling, APPELLEE: David Alan Strassburger, Esq., Strassburger, McKenna, Gutnick & Gefsky.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ. MR. JUSTICE McCAFFERY. Former Justice Orie Melvin did not participate in the decision of this case. Messrs. Justice Saylor, Eakin and Baer join the opinion. Mr. Justice Saylor files a concurring opinion. Mr. Chief Justice Castille files a dissenting opinion. Madame Justice Todd files a dissenting opinion.

OPINION

Page 455

[621 Pa. 137] MR. McCAFFERY, JUSTICE

We granted allowance of appeal in this case under the Right-to-Know Law (" RTKL" ), Act of February 14, 2008, P.L. 6, 65 P.S. § § 67.101 - 67.3104, to determine the standard and scope of review that apply when a court reviews a final determination of the Office of Open Records (the " OOR" or " Appellant" ).

Background of " Right-to-Know" Legislation in Pennsylvania

The RTKL, which became effective on January 1, 2009, is the statute providing for access to public records in Pennsylvania. It was preceded by the Act of June 21, 1957, P.L. 390, as amended, 65 P.S. § § 66.1-66.9, which was known as the Right-to-Know Act (" RTKA" ). In 2002, the RTKA was substantially overhauled by the Act of June 29, 2002, P.L. 663 (repealed). The revised RTKA remained in effect through 2008.

Before the RTKA was amended in 2002, a requester seeking access to a government record in Pennsylvania bore the burden of demonstrating that the record was a " public record" and that the requester was entitled to see it. Tribune-Review Publishing Co. v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112, 115 (Pa. 2003); Rowland v. Public School Employees' Retirement System, 885 A.2d 621, 627 (Pa.Cmwlth. 2005). The responding agency was under no time limit within which it had to respond to a request for access. If [621 Pa. 138] the agency in possession of the record denied access, the recourse for a requester wishing to challenge such denial was to take an appeal to court. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844, 849 n.9 (Pa. 1958). Appellate review was specified by statute to encompass a determination of whether the agency's denial was for " just and proper cause under the terms of" the RTKA. LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449, 458 n.13 (Pa. 2001), citing 65 P.S. § 66.4 (repealed); Dynamic Student Services v. State System of Higher Education, 548 Pa. 347, 697 A.2d 239, 242 (Pa. 1997). If the court determined that the agency's denial was without " just and proper cause," it could " enter such order for disclosure as it may [have] deem[ed] proper." 65 P.S. § 66.4 (repealed).

As indicated above, in 2002, the General Assembly amended the RTKA, revamping the procedures to be followed for obtaining access to public records. A streamlined, expeditious set of procedures for accessing public records was created, but the burden still rested upon the requester to establish that requested records were public records that he or she was entitled to inspect. LaValle, supra at 458. However, agencies were required to respond to a request in 5 days (for Commonwealth agencies) or 10 days (for non-Commonwealth agencies), with an additional 30 days available in some circumstances. 65 P.S. § 66.3-3(a) (repealed). A requester could file exceptions with the agency head within 15 days, could expect a final decision 30 days later, and then had 30 days to file an appeal in court. 65 P.S. § § 66.3.5, 66.4 (repealed). Prior to determination, the agency head or his or her designee was authorized to conduct a hearing. 65 P.S. § 66.3.5(b) (repealed).

Significantly, as part of this revamping, the amended RTKA deleted the requirement that a reviewing court determine whether denials of access to requested records were for " just and proper cause." For appeals to the Commonwealth Court from Commonwealth agency decisions, no

Page 456

standard or focus of review was articulated. See 65 P.S. § 66.4(a) (repealed). However, for appeals from decisions of non-Commonwealth agencies, " a requester [was] entitled to a reasoned decision [621 Pa. 139] containing findings of fact and conclusions of law based on the evidence as a whole which clearly and concisely state[d] and explain[ed] the rationale for the decisions so that all [could] determine why and how a particular result was reached." 65 P.S. § 66.4(b) (repealed). In either case, the agency had the opportunity to respond " in accordance with applicable court rules," and " [t]he record before a court [was to consist of] the request, the agency's response, the requester's exceptions, if applicable, the hearing transcript, if any, and the agency's final determination, if applicable." 65 P.S. § 66.4(c) and (d) (repealed).

Because the RTKA, as amended, jettisoned the " just and proper cause" standard but failed to articulate any standard of review of Commonwealth agency decisions, the Commonwealth Court determined that it should address petitions for review from RTKA decisions of such agencies pursuant to Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, which sets forth the " traditional," or so-called " deferential," approach to disposing of appeals from Commonwealth agencies. Parsons v. Urban Redevelopment Authority of Pittsburgh, 893 A.2d 164, 167 n.2 (Pa.Cmwlth. 2006); Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897, 899 n.3 (Pa.Cmwlth. 2006); Martella v. Department of Transportation, 841 A.2d 633, 635 n.9 (Pa.Cmwlth. 2004).[1] Section 704 provides:

The court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been [621 Pa. 140] violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

2 Pa.C.S. § 704.[2]

The Commonwealth Court arrived at this determination despite the fact that the RTKA, as amended, explicitly stated: " The provisions of 2 Pa.C.S. (relating to administrative law and procedure) shall not apply to this act." 65 P.S. § 66.9 (repealed). The Commonwealth Court " reasoned that [this] exclusion only applied to those chapters of the Administrative Agency Law relating to practice and procedure, i.e., Chapter 5, and not the remaining chapters, in particular, Chapter 7 (relating to judicial review). Thus, [the Commonwealth Court's] standard of review ... is whether constitutional rights have been violated, whether an error of

Page 457

law has been committed or whether findings of fact are supported by substantial evidence." Hartman, supra at 899 n.3.

In 2008, the General Assembly enacted the RTKL, which replaced the RTKA and provided for significantly broadened access to public records. Under the new law, agency records are presumed to be public records, accessible for inspection and copying by anyone requesting them, and must be made available to a requester unless they fall within specific, enumerated exceptions or are privileged. 65 P.S. § § 67.305(a), 67.701(a), 67.708(b) (listing categories of records that are exempt from public access). To justify a determination to deny a requester access to a requested record, the relevant government agency bears the " burden of proving ... by a preponderance of the evidence" that an exception applies. 65 P.S. § 67.708(a).

The RTKL identifies four types of public agencies: Commonwealth agencies, local agencies, legislative agencies, and [621 Pa. 141] judicial agencies. See 65 P.S. § § 67.301-304. The RTKL then provides that each agency, of whatever type, must appoint an " open-records officer" who issues the agency's interim and final determinations on requests for access to public records of that agency, providing a written description of the requested record(s) and written specific reasons if a requester is denied access. 65 P.S. § § 67.502, 903(2).

Of central significance to the instant case, the RTKL also established a new Commonwealth agency, the Office of Open Records, within the Department of Community and Economic Development. Among its many functions, the OOR provides information relating to the implementation and enforcement of the RTKL, issues advisory opinions to agencies and requesters, provides training courses to agencies and public officials, and provides informal mediation programs to resolve disputes under the RTKL. 65 P.S. § 67.1310(a)(1), (2), (3), (4), and (6). In addition, with respect to most Commonwealth agencies and local agencies, where requesters challenge denials of access, the OOR assigns appeals officers to review the challenges. 65 P.S. § § 67.503(a) and 67.1310(a)(5). However, judicial agencies, legislative agencies, the Attorney General, State Treasurer, and Auditor General (all Commonwealth agencies); and the district attorneys of each county (all local agencies), shall designate their own appeals officers to hear appeals from the respective agency's determinations. 65 P.S. § 67.503(a)-(d). Thus, appeals from final determinations of these latter agencies are not heard by the OOR.

When an agency has denied access to requested records, the requester may file an appeal with the OOR, or with an appeals officer directly if the agency is one that appoints its own appeals officers, wherein the requester " shall state the grounds upon which the requester asserts that the record is a public record ... and shall address any grounds stated by the agency for delaying or denying the request." 65 P.S. § 67.1101(a)(1). The appeals officer may hold a hearing, but is not required to do so, and the appeals officer's decision whether or not to hold a hearing is not appealable. 65 P.S. § § 67.1101(b)(3), 1102(a)(2). The appeals officer may admit [621 Pa. 142] testimony, evidence, and documents that he or she believes to be reasonably probative and relevant to an issue in dispute. 65 P.S. § 67.1102(a)(2). The appeals officer must issue a final determination on the matter within 30 days, and provide a written explanation of the reason for the decision. 65 P.S. § 67.1101(b)(1). However, if the appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied. 65 P.S. § 67.1101(b)(2). The appeals

Page 458

officer's determination is a final order. 65 P.S. § 67.1101(b)(3). No further administrative appeal is provided for in the RTKL. Additionally, the RTKL requires that OOR appeals officers be attorneys who receive special training in order to serve in such capacity. 65 P.S. § 67.1310(a)(5).

Decisions of OOR appeals officers are reviewable upon petitions for review -- to the Commonwealth Court when the matter arises from a determination made by a Commonwealth agency, or to the court of common pleas when the matter arises from a determination made by a local agency (the Commonwealth Court and the courts of common pleas will often hereinafter be collectively referred to as the " Chapter 13 courts," in reference to the chapter of the RTKL in which their relevant duties are discussed).[3] 65 P.S. § § 67.1301-1302. In another departure from the RTKA, the RTKL requires both the Commonwealth Court and the courts of common pleas to render decisions that " contain findings of fact and conclusions of law based upon the evidence as a whole. [Such] decision[s] shall clearly and concisely explain the rationale for the decision." 65 P.S. § § 67.1301(a); 67.1302(a) (emphasis added). When review is sought in court, the RTKL specifies that " [t]he record before a court shall consist of the request, the agency's response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer." 65 P.S. § 67.1303(b).

[621 Pa. 143] Additionally, the RTKL provides that the Chapter 13 courts may award attorneys' fees to or impose sanctions upon requesters or civil penalties upon agencies after the court has made relevant factual findings supporting such awards, sanctions, or penalties. 65 P.S. § § 67.1304-1305.

Similarly to the RTKA, the RTKL provides: " [t]he provisions of 2 Pa.C.S. (relating to administrative law and procedure) shall not apply to this act unless specifically adopted by regulation or policy." 65 P.S. § 67.1309. Further, the RTKL authorizes government agencies, including the OOR, to promulgate regulations and adopt appeal procedures in order to implement the provisions of the RTKL. 65 P.S. § § 67.504(a) and 67.1102(b).

Factual and Procedural Background

In the instant case, Appellee, an employee of the Pittsburgh Tribune-Review, requested access to records from the Pennsylvania Emergency Management Agency (" PEMA" ). Specifically, Appellee sought access to records of invoices and contracts relating to equipment and services that PEMA had purchased using grant funds from the federal Department of Homeland Security. PEMA provided access to the records, but first redacted the identities of the recipients of the goods and services purchased. It redacted this information based upon the exemptions set forth in 65 P.S. § 67.708(b)(2) (for " record[s] maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that if disclosed would be reasonably [621 Pa. 144] likely to jeopardize or threaten public safety or preparedness or public protection activity ... ." ), and (b)(3)(ii) (for " record[s], the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure,

Page 459

facility or information storage system" ). PEMA determined that disclosure of the identities was critical information that revealed gaps, vulnerabilities and emergency response capabilities in the Commonwealth, and that disclosure would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activities.

Appellee appealed, and an OOR appeals officer, without holding a hearing, but after requesting and receiving memoranda of law from Appellee and PEMA, issued a final written determination that redaction of the information was proper. Appellee petitioned for review in the Commonwealth Court, before which PEMA appeared as an intervenor.

The Commonwealth Court reversed and remanded in an en banc published opinion. Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth. 2010).[4] Before it addressed whether redaction of the information was proper, the Commonwealth Court addressed the appropriate standard of review it was to apply. PEMA had argued for the so-called " deferential" standard for reviewing determinations of administrative agencies: i.e., whether substantial evidence in the record supported the findings of fact, whether errors of law were committed, or whether constitutional rights were violated. Appellee had argued that a de novo standard of review applied. The Commonwealth Court ultimately concluded that the applicable standard was the de novo standard, requiring that, within the court's appellate jurisdiction, it must independently review the OOR's orders and could substitute its own findings of fact for those of the agency. Id. at 818.[5]

The court first noted that Section 1301(a) of the RTKL requires decisions of the reviewing court to contain findings of fact and conclusions of law based on the evidence as a whole. [621 Pa. 145] Id., citing 65 P.S. § 67.1301(a). It interpreted this language as imposing on the court an express duty of fact-finding that is " consistent with a standard similar to de novo review." Id. The court further noted the language of Section 1309, which provides: " [t]he provisions of 2 Pa.C.S. (relating to administrative law and procedure) shall not apply to this act unless specifically adopted by regulation or policy." Id. The court interpreted this language to constitute an express direction of the General Assembly that the framework for reviewing agency decisions set forth in 2 Pa.C.S. § 704, and advanced by PEMA, does not apply to disputes under the RTKL.[6] The court did not address

Page 460

those decisions made under the RTKA coming to a ...


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