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Glunk v. Department of State

Commonwealth Court of Pennsylvania

October 17, 2014

Richard P. Glunk, Petitioner
v.
Department of State, Respondent

Submitted June 27, 2014

Page 606

Appealed from No. AP-2012-1121. Office of Open Records.

Richard P. Glunk, Pro se.

Thomas A. Blackburn, Senior Counsel-In-Charge, Harrisburg, for respondent.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Page 607

PATRICIA A. McCULLOUGH, Judge

Richard P. Glunk, M.D. (Requester) petitions, pro se, for review of the January 29, 2014 final determination of the Office of Open Records (OOR), granting in part and denying in part his request for certain information from the Department of State (Department) under the Pennsylvania Right-to-Know Law (RTKL).[1]

Facts and Procedural History

Requester is licensed to practice medicine by the State Board of Medicine (Board). Following an investigation by the Department, a prosecuting attorney filed disciplinary charges against Requester for allegedly engaging in unprofessional conduct when treating three patients. The Board eventually dismissed the charges in February 2009. Thereafter, Department prosecutors filed additional charges against Requester, contending that he engaged in immoral conduct by attempting to influence a Board member in the prior disciplinary matter. A hearing examiner, Joyce McKeever, Esquire, presided over the case, and, on December 1, 2010, found that Requester had engaged in immoral conduct and imposed as a sanction a sixty-day license suspension, a $5,000.00 civil penalty, and fifty hours of continuing education. On December 20, 2010, Requester filed a motion to reopen the record, but the case was assigned to another hearing examiner because McKeever was on vacation at that time. The new hearing examiner denied Requester's motion.

On June 26, 2012, Requester submitted twelve RTKL requests for information to the Department. In request 1, Requester sought " [a]ll communications to and from Mark Greenwald[2] that refer to [Requester] or involve [Requester] in any way, including, but not limited to, emails, letters, phone records, notes, memos, messages" (Request 1). In requests 2 through 8 and 10, Requester sought the same information contained in his first request, but from different people, namely Kerry Maloney[3] (Request 2); Edward Rendell[4] (Request 3); Basil Merenda[5] (Request 4); Peter Marks[6] (Request 5); the Board and/or its members (Request 6); David Grubb[7] (Request 7); Andrew Demarset[8] (Request 8); and Joyce McKeever[9] (Request 10).

Page 608

In requests 9, 11, and 12, Requester sought: " [a]ll records regarding vacation time for Joyce McKeever for the time period 12/01/2010 through 01/31/2011. Including but not limited to schedules, requests, memos" (Request 9); " [a]ll records, notes, memos, drafts, etc. of or regarding final order and adjudication of Joyce McKeever regarding [Requester]" (Request 11); and " [a]ll communications regarding recusal of [the Board] in case regarding [Requester]" (Request 12).

On July 9, 2012, Requester asserted that he had not received a timely response from the Department, within five business days of his requests or July 3, 2012,[10] resulting in deemed denials, and he filed twelve appeals with the OOR, which were consolidated. By letter dated July 10, 2012, the OOR notified the parties that Requester's appeals were received. On July 16, 2012, the Department advised the OOR that it had, in fact, responded to Requester's requests by letter dated July 3, 2012, in which it notified Requester that, under section 902(b)(1) and (2) of the RTKL, it was extending its deadline to respond to the requests to August 3, 2012.[11] After receiving the Department's correspondence, the OOR issued a final determination on July 18, 2012, dismissing Requester's appeals as premature because the Department had until August 3, 2012, to respond to Requester's requests.

On August 2, 2012, the Department replied to Requester's requests and asserted the following grounds for denial: records responsive to Requests 1, 2, 4, 5, 7, and 8 were exempt from disclosure as noncriminal investigation documents pursuant to section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17); records related to Requests 3, 4, and 5 were not in the Department's possession, custody, or control, and an agency is not required to create a record that does not exist under section 705 of the RTKL, 65 P.S. § 67.705; records responsive to Requests 4, 5, 6, 9, 10, and 11 were exempt from disclosure under the predecisional deliberation exception in section 708(b)(10) of the RTKL, 65 P.S. § 67.708(b)(10); Requests 4, 5, 6, 9, 10, and 11 were exempt from disclosure under the notes and working papers exception in section 708(b)(12) of the RTKL, 65 P.S. § 67.708(b)(12); Request 5, 6, and 12 were protected from disclosure by the attorney-client privilege and/or the attorney-work product doctrine under section 305(a)(2) of

Page 609

the RTKL, 65 P.S. § 67.305(a)(2); some of the records responsive to Request 5 were not in the possession of the Department because they were transitory records disposed of in accordance with the Department's record retention policy under section 507 of the RTKL, 65 P.S. ยง 67.507; and, finally, Request 9 was granted for records regarding vacation times, but denied for schedules, vacation requests, and memos, because this information was protected by the personal security ...


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