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Commonwealth v. Office of Open Records

Supreme Court of Pennsylvania

November 10, 2014


Argued May 7, 2014

Page 1277

Appeal from the Commonwealth Court order dated June 11, 2012 at No. 1134 CD 2009, which Affirmed/Vacated/Remanded the order of the Office of Open Records dated May 11, 2009 at No. AP 2009-0281. Intermediate Court Judges: Bonnie Brigance Leadbetter, President Judge, Bernard L. McGinley, Dan Pellegrini, Renee Cohn Jubelirer, Robert E. Simpson, Mary Hannah Leavitt, Patricia A. McCullough, JJ.48 A.3d 503 (Pa. Cmwlth. 2012) .

For The General Assembly of Pennsylvania, Amicus Curiae: Patrick Schaffner Cawley, Esq., Rodney A. Corey, Esq., James Guthrie Mann, Esq., Tara Lynn Smith, Esq., Pennsylvania House of Representatives; J. Andew Crompton, Esq, Claude Joseph Hafner II, Esq., Donna Memmi Malpezzi, Esq., Pennsylvania Senate.

For Greenwood Gaming & Entertainment, Inc., Amicus Curiae, Downs Racing, LP, Amicus Curiae: Robert B. Hoffman, Esq., Eckert Seamans Cherin & Mellott, LLC.

For County Commissioners Association of PA, Amicus Curiae: Adam Gordon Klein, Esq., Smigel, Anderson & Sacks, L.L.P; Robert L. Knupp, Esq.

For Office of General Counsel, Amicus Curiae: Delene Rachel Lantz Johnson, Esq., Governor's Office of General Counsel.

For PA School Boards Association, Amicus Curiae: Emily J. Leader, Esq., PA School Boards Association, Inc.

For Pennsylvania NewsMedia Association, Amicus Curiae: Melissa Bevan Melewsky, Esq.

For Pennsylvania Freedom of Information Coalition, Amicus Curiae: Gayle Chatilo Sproul, Esq., Levine Sullivan Koch & Schulz, L.L.P.

For Valley Forge Convention Center Partners, LP, Intervenor: Michael David Matthews Fabius, Esq., Adrian R. King, Esq., Raymond Adam Quaglia, Esq., Ballard, Apahr, Andrews & Ingersoll, LLP.

For James D. Schneller, Intervenor: Mr. James D. Schneller.

For Pennsylvania Gaming Control Board, APPELLANT: Stephen S. Cook, Esq., Denise Lynne Miller-Tshudy, Esq., Richard Douglas Sherman, Esq., PA Gaming Control Board.

For Office of Open Records, APPELLEE: Charles Rees Brown, Esq., Nathanael J. Byerly, Esq., Dena Lefkowitz, Esq., Terry Lee Mutchler, Esq., J Chadwick Schnee, Esq., Pennsylvania Office of Open Records.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Stevens files a concurring opinion.


Page 1278


In this open-records matter, we are called upon to construe Section 703 of the Right-to-Know Law (RTKL), 65 P.S. § 67.703 (" Section 703" ), setting forth the requirements for written RTKL requests for access to public records, to determine proper application of the provision which directs that all such requests " must be addressed to the open-records officer." For reasons stated below, we hold that in order to establish a valid RTKL request sufficient to trigger appellate rights from a non-response under the RTKL, the requestor must address his request to the respective open-records officer as mandated in Section 703. Accordingly, we reverse.


On March 20, 2009, intervenor James D. Schneller (" requestor" ), of Eastern Pennsylvania Citizens Against Gambling, sent an email to Catherine Stetler, a press aide in the Office of Communications and Legislative Affairs of the Pennsylvania Gaming Control Board (" GCB" ), requesting copies of communications between the GCB and several applicants for gaming licenses, as well as copies of the financial data that each applicant provided to the GCB. He also asked for permission to speak at the GCB's next public hearing, and copied his request to the GCB's Director of Media Relations and Chief Enforcement Counsel. It is undisputed that requestor did not make mention of any open-records officer in his written request. On March 24, 2009, the press aide responded to the written request by return email, wherein she apologized for having been out of the office and attached a public comment sign-up form with instructions to return the completed form for permission to comment at the GCB's public hearing on the following day.

Page 1279

The aide did not otherwise respond to the request for records, and did not forward the request to the GCB's open-records officer.

On March 30, 2009, requestor deemed his records request denied pursuant to 65 P.S. § 67.901, which states: " If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied." Thereafter, requestor filed a timely appeal from the deemed denial with the Office of Open Records (" OOR" ). In opposition, the GCB took the position that there was no deemed denial from which an appeal could rightfully be taken under the RTKL because requestor had not submitted a valid RTKL request to its open-records officer, and therefore, the GCB had no duty to respond concerning the records requested. The OOR disagreed, concluding that the request was not defective under the RTKL, and that the GCB's failure to respond did, in fact, constitute a deemed denial. Further, because the GCB had not offered any substantive defense to the records request, the OOR ordered the GCB to release the records within thirty days.

On appeal, the Commonwealth Court, sitting en banc and dividing 4-3, affirmed the OOR's decision with respect to the validity of the records request, but vacated the OOR's order and remanded the matter for review of the records requested and a proper determination as to whether access to those records is properly granted or denied under the RTKL. Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503 (Pa. Cmwlth. 2012) (hereinafter " PGCB" ). The court majority focused its inquiry upon the second and third sentences of Section 703, which provide: " A written request must be addressed to the [designated] open-records officer . . . . Employees of an agency shall be directed to forward requests for records to the open-records officer." In so doing, the court held that the first of these two sentences " means simply that written requests must be 'directed' to the open-records officer . . . ." PGCB, 48 A.3d at 509. In reaching this conclusion, the court stated: " it is hard to believe that the legislature was concerned with the niceties of the written request salutation. . . . The real purpose of 'addressed to the open-records officer' is to ensure that the requestor does not shop around the agency for an employee sympathetic to his request." Id. at 508-09. In the court majority's view, the word " addressed" is synonymous with the word " directed," and " [t]his is why the statute contains the provision that employees are 'directed' to forward requests to the open-records officer." Id. at 509. Finally, the court stated, without qualification, " We conclude that the General Assembly intended that state and local agencies should presume that written requests for records are Right--to--Know requests." Id. at 510.

In a dissenting opinion joined by Judges McGinley and Cohn Jubelirer, Judge (now President Judge) Pellegrini disagreed with the rationale of the Commonwealth Court majority. In the dissenting view, " Section 703 provides that the requestor has to address the written request to the open records officer[,]" and that only written requests so addressed must be forwarded to the open-records officer by agency employees. Id. at 515 (Pellegrini, J., dissenting, joined by McGinley and Cohn Jubelirer, JJ.). According to that dissent, the Commonwealth Court's Majority Opinion " would make an unaddressed request written on the back of a ...

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