Argued March 12, 2014
Appealed from No. AP 2013-1232. State Agency: Office of Open Records.
Thomas P. Howell, Assistant Counsel, Harrisburg, for petitioner.
Frederick N. Frank, Pittsburgh, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE SIMPSON. DISSENTING OPINION BY PRESIDENT JUDGE PELLEGRINI. Judge Leavitt joins in this dissent.
ROBERT SIMPSON, Judge
This Right-to-Know Law (RTKL) appeal involves the impact of a federal law on the public status of records. William Heltzel, a Senior Investigative Reporter for Public Source (Requester), sought records relating to hazardous chemicals from the Department of Labor and Industry (L& I). L& I asserted the records were protected by exceptions in Section 708(b) of the RTKL, 65 P.S. § 67.708(b), related to safety and physical security.
The Office of Open Records (OOR) issued a final determination ordering disclosure of certain records. Specifically, it deemed the information " public" under the federal Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § § 11001-11050, as a matter of law. Because it decided the federal statute established the public nature of the information,
OOR did not apply the RTKL exceptions in Section 708(b).
L& I appeals, asserting the request did not meet the criteria established in EPCRA as preconditions for access. L& I argues OOR lacked jurisdiction to apply EPCRA, and it erred in failing to apply the RTKL exceptions to protect the records. Upon review, we vacate OOR's determination and remand for disposition in accordance with this opinion.
Pursuant to the RTKL, Requester sought Pennsylvania's Tier II hazardous chemicals inventory database (Tier II Database) from L& I (Request). Requester argued disclosure was mandatory because EPCRA classified Tier II information as public records.
EPCRA contains reporting requirements for facilities that store hazardous chemicals. It requires any owner or operator of a facility to submit a hazardous chemical inventory form (Inventory Form) to: (1) the appropriate local emergency planning committee; (2) the state emergency response commission; and, (3) the local fire department with jurisdiction over the facility. 42 U.S.C. § 11001. The Hazardous Material Emergency Planning and Response Act (Hazmat Act) designates the Pennsylvania Emergency Management Council (Council) as the state emergency response commission.
Pursuant to a delegation by the Pennsylvania Emergency Management Agency (PEMA), the primary agent of the Council, L& I collects the Inventory Forms and responds to related requests for information. Section 201 of the Hazmat Act, 35 P.S. § 6022.201(g)(7). L& I receives information requests under the state Hazmat Act and the state Worker and Community Right-to-Know Act, Act of October 5, 1984, P.L. 734, as amended, 35 P.S. § § 7301-7320. In concert, these acts inform the public about hazardous materials in their local communities.
L& I denied the Request based on the public safety exception in Section 708(b)(2) of the RTKL, 65 P.S. § 67.708(b)(2), and the physical security exception in Section 708(b)(3) of the RTKL, 65 P.S. § 67.708(b)(3). L& I also advised that the request did not comport with a request for information under EPCRA because it did not specify a storage facility, as EPCRA requires in Section 312, 42 U.S.C. § 11022.
Requester appealed to OOR, arguing EPCRA identified the information contained in the Tier II Database as public record.
On appeal, L& I submitted two affidavits to OOR in support of the exceptions. Carol Freeman, of the Bureau of Occupational and Industrial Safety, (Freeman) is responsible for collection and retention of the Inventory Forms. Captain Garret Rain is Director of the Domestic Security Division within the Pennsylvania State Police, Bureau of Criminal Investigation (Rain). The Domestic Security Division primarily focuses on preventing, planning, responding to and recovery from natural disasters, and acts of terrorism. L& I also submitted the instructions for the Tier II Inventory Forms.
Freeman attested Pennsylvania collects the chemical inventory information under EPCRA in the Tier II Database. All chemical storage facilities are required to submit information regarding their location
and the chemicals they store on Tier II Inventory Forms. The Tier II Database " is a compendium of all Tier II reports [Inventory Forms] from each reporting entity in the Commonwealth. In total, providing the access sought by [Requester] would reveal the ... hazardous materials information for over 11,000 actively reporting facilities." See Freeman Affidavit, Reproduced Record (R.R.) at 13a.
More specifically, the Tier II Inventory Form identifies the precise location of the storage facility, the amount of chemicals and hazard potential, the storage mechanisms and conditions, the chemical status and particulars about security and contact information. On the Tier II Inventory Form, there is a section where the owner/operator of the facility may mark the information for a specific chemical " confidential."  When location information is marked confidential, it is maintained separate from information that is available to the public. For storage facilities that are unmanned and in remote locations, Pennsylvania law requires that reporting entities provide detailed site plans, access points and specific locations of the chemicals reported by latitude and longitude.
Rain attested he " presumes" the Tier II Database contains specific information related to the location and type of facility, types of chemicals stored or produced at the facility and names of contacts. See Rain Affidavit, R.R. at 11a. With these " presumptions in mind," he believed the release of the Tier II Database would allow criminal actors to gather intelligence on prospective sites and provide a " ready ability to identify, locate, select, and target locations for attack or tampering and expedite their planning cycle." Id. He also stated disclosure endangers the physical plants and infrastructure because criminal actors may conduct initial stage surveillance of the sites for terrorist attacks. He speculated that the release of the facility contact information may also enable targeting of facility owners, managers and their families for kidnapping or terrorism.
Requester claims that PEMA acknowledges Tier II information is public record. Further, non-disclosure of the information poses a greater risk because the public may unwittingly become injured. Significantly, Requester cited only EPCRA as conferring public status upon the records, arguing the federal statute supersedes the RTKL and any exceptions thereunder.
Based on the written submissions, OOR issued a final determination directing disclosure of the Tier II Database, with the exception of information facility owners marked confidential. OOR reasoned that the Section 708(b) exceptions did not protect the records because EPCRA renders the information public. Specifically, OOR held that Section 324 of EPCRA, 42 U.S.C. § 11044(a),
requires Tier II information to be made available to the general public.
L& I filed a petition for review, challenging OOR's authority to construe a federal statute. L& I also argued OOR erred in neglecting to analyze whether the records were protected, at least in part, under Section 708(b) of the RTKL prior to ordering their disclosure. Requester responded that OOR correctly construed EPCRA to confer public nature on the records. OOR filed a brief as a friend of the court pertaining to its authority.
As to factual disputes, this Court may exercise functions of a fact-finder, and has the discretion to rely upon the record created below or to create its own.
Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013). As to a question of law under the RTKL, our scope of review is plenary.
Dep't of Corr. v. Office of Open Records, 18 A.3d 429 (Pa. Cmwlth. 2011).
There are two issues before this Court, and both involve pure questions of law that do not implicate our potential role as the fact-finder. First, does OOR possess the authority to grant access to records predicated on its construction of a federal statute as to the public nature of the record requested? Second, did OOR correctly construe EPCRA as establishing the public nature of the records requested, superseding the exceptions contained in the RTKL? We address each question in turn.
A. OOR Jurisdiction and Authority
L& I contends OOR lacks authority to determine the public nature of records under federal law. L& I asserts the interpretation of any statute other than the RTKL is beyond OOR's purview; therefore, OOR's determination that the records are subject to disclosure based on its construction of EPCRA is unauthorized.
This Court rejects L& I's position. The RTKL contemplates OOR's interpretation of statutes other than the RTKL when evaluating the public nature of records. Otherwise, it would not define " public record" in a way that implicates other laws. See Section 102 of the RTKL, 65 P.S. § 67.102 (defining a public record, in part, as a record not exempt from disclosure " under any other Federal or State law ..." ).
Moreover, Section 305 of the RTKL provides that records in possession of a Commonwealth agency like L& I are presumed to be " public" unless they are: (1) exempted by Section 708 of the RTKL; (2) protected by a privilege; or (3) exempted " under any other Federal or State law or regulation or judicial order or decree." 65 P.S. § 67.305 (emphasis added). Thus, analyzing whether a record is public entails the application of other laws, including federal statutes like EPCRA. By necessity, OOR construes federal statutes. See
Northside Urban Pathways Charter Sch. v. State Charter Sch. Appeal Bd., 56 A.3d 80 (Pa. Cmwlth. 2012) (implied powers flow from statutory authority).
OOR is the body created to adjudicate disputes concerning denials of agency records requested under the RTKL. Section 1310 of the RTKL, 65 P.S. § 67.1310; see also Section 503(a) of the RTKL, 65 P.S. § 67.503(a) (OOR designates appeals officers for Commonwealth and local agencies). The RTKL thus vests OOR with jurisdiction over challenges to the public
nature of records in possession of a Commonwealth agency.
Bagwell v. Dep't of Educ., 76 A.3d 81 (Pa. Cmwlth. 2013) (OOR has proper jurisdiction over appeals from Commonwealth agency's denial of a right-to-know request).
Quite simply, without construing federal statutes that pertain to the public or nonpublic nature of records, OOR cannot perform a core adjudicatory function. Indeed, this Court repeatedly recognizes OOR's interpretation of federal statutes in determining the public nature of records. See, e.g.,
Easton Area Sch. Dist. v. Express Times, 41 A.3d 977 (Pa. Cmwlth. 2013) (OOR construed Family Education Rights and Privacy Act, FERPA, 20 U.S.C. § 1232g,);
Fort Cherry Sch. Dist. v. Acton, 38 A.3d 1092 (Pa. Cmwlth. 2012) (OOR construed FERPA and 42 U.S.C. § 300gg);
Fort Cherry Sch. Dist. v. Coppola, 37 A.3d 1259 (Pa. Cmwlth. 2012) (OOR interpreted 26 U.S.C. § 6103(a) to exempt 1099s);
Office of the Budget v. Campbell, 25 A.3d 1318 (Pa. Cmwlth. 2011) (same as to W-2s).
Because it is charged with determining the public nature of records requested under the RTKL, OOR enjoys the authority to interpret federal statutes that involve public records and public access to agency information.
Both parties assert EPCRA applies to the requested records here. Therefore, OOR could not avoid interpreting EPCRA to determine the public nature of the records.
L& I cites Advancement Project v. Department of Transportation,
60 A.3d 891 (Pa. Cmwlth. 2013), to support its position that OOR lacks authority to grant access to records under a federal statute. Ironically, Requester also cites this case as exemplifying the necessity for OOR to construe federal law. We examine the case.
In Advancement Project, a requester sought certain information from drivers' licenses, including names, addresses, and dates of birth. Relevant here, this Court recognized that federal law, the Driver's Privacy Protection Act, 18 U.S.C. § § 2721-2725 (DPPA), prohibited release of the requested information.
However, the requester argued that the federal statute did not protect the records because her request fell within one of the statutory exceptions to non-disclosure. In particular, because she sought the information for research purposes, the requester argued the DPPA did not bar her access. Essentially, the requester asked OOR to honor the terms of the federal statute and to decide her request as though OOR administered the DPPA. This Court held OOR lacked the authority to administer another statute, and its preconditions to access.
Contrary to L& I's characterization of Advancement Project, this Court did not hold that construing the DPPA exceeded OOR's authority or jurisdiction. Nevertheless, L& I's point that OOR lacks the authority to enforce or administer a federal statute, and means of public access thereunder, is well-taken. As discussed more fully below, OOR possesses only the ...