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Paint Twp. v. Clark

Commonwealth Court of Pennsylvania

February 5, 2015

Paint Township, Appellant
v.
Robert L. Clark

Submitted: June 6, 2014.

Page 797

Appealed from No. 239 C.D. 2013. Common Pleas Court of the County of Clarion. Judge Arner, J.

William E. Hager, III, and Stephanie R. Hager, New Bethlehem, for appellant.

Robert L. Clark, Pro se.

Craig J. Staudenmaier, Harrisburg, for amicus curiae Pennsylvania Freedom of Information Coalition.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge. OPINION BY JUDGE McCULLOUGH[1].

OPINION

Page 798

PATRICIA A. McCULLOUGH, Judge.[1]

In this Right-to-Know Law (RTKL)[2] case, Paint Township (Township) appeals from the October 21, 2013 order of the Court of Common Pleas of Clarion County (trial court) directing the Township to retrieve data from the then publicly-funded cell phone of Randy Vossburg, the chairman of the Township's Board of Supervisors (Supervisor Vossburg), and provide the retrieved records to Robert L. Clark (Requester). The trial court also ordered the Township to provide Requester with phone records concerning Township business after Supervisor Vossburg's publicly-funded cell phone number was privatized and paid for in part by the Township. We affirm in part and vacate and remand in part.

Facts and Procedural History

On November 28, 2012, Requester, the chairman of the Township's Board of Auditors, submitted a RTKL request and sought the following records:

[The] Township's cell phone contract with Verizon Wireless including any service or equipment changes to the contract.
The name of the Township official or employee authorizing each contract change.
Detailed phone bills for Township cell phones including the date, time, source, destination and duration (or size) of all incoming or outgoing voice, text, picture, and video messages.
The content of all incoming or outgoing text, picture, or video messages.
The content of application related data stored on the cell phone or available from Verizon Wireless, including browser history, address books, and Internet connection logs for the phone assigned [to Supervisor Vossburg].

( Reproduced Record (R.R.) at 13a.)

The Township's open records officer, Jacqui Blose (Blose), responded on December 3, 2012, and requested a thirty-day extension. Blose did not respond within the thirty-day period, and Requester's request was deemed denied. Requester then appealed the denial to the Office of Open Records (OOR).

Before the OOR, the Township provided an unsworn position statement, alleging that the Township could not obtain any responsive records from Verizon Wireless and that Supervisor Vossburg's cell phone was privatized prior to Requester's request. The Township also stated that it would submit a signed affidavit that the requested records do not exist in its possession or control. Ultimately, the OOR found the Township's evidence insufficient to establish that responsive records do not exist and granted Requester's appeal on February 4, 2013. (R.R. at 28a-32a.)

The Township then appealed to the trial court, alleging that it ceased providing a publicly-funded cell phone to Supervisor Vossburg in August/September 2012, at which point he entered into a private contract with Verizon Wireless. The Township also argued that cell phone records were not in its possession and/or do not exist. (R.R. at 1a-10a; R.R. at 65a-70a.)

In turn, Requester asserted that the Township did not conduct a good faith effort to determine whether the requested records existed, whether they were public records, or whether they were in its possession, custody, or control. (R.R. at 74a.)

On June 7, 2013, the trial court entered the following order:

Page 799

1. [The] Township shall not sell or dispose of any of its cell phones until [the] court enters a final Order in this appeal.
2. Within thirty (30) days from today, [the] Township shall provide copies of the following records to [Requester] covering the period January 1, 2012 through November 28, 2012:
a. The Township's cell phone contract with Verizon Wireless including any service or equipment changes to the contract.
b. The name of the Township official or employee authorizing each contract change.
c. Detailed phone bills for Township cell phones including the date, time, source, destination and duration of all incoming and outgoing voice, text, picture, and video messages and, except for communications between the Supervisors themselves, the Township shall redact all information which identifies the other parties and their phone numbers.
d. The content of all incoming and outgoing text, picture, or video messages which relate to the business of the Township. The Township is not required to provide the content of communications which do not relate to Township business.
e. The content of all application related data stored on the cell phone or available from Verizon Wireless, including browser history, address books, and internet connection logs for the phone assigned [to Supervisor Vossburg], except the Township shall redact any information that would identify other parties.
If the Township cannot obtain records, it shall file an appropriate affidavit or otherwise comply with [the] requirements of the [RTKL].

( R.R. at 163a-64a.)

In response, Blose submitted a notarized affidavit, under the penalty of perjury, dated July 8, 2013. In this affidavit, Blose attested that information and application-related data for Supervisor Vossburg's publicly-funded cell phone, including browser history, address books, and internet connection logs, could not be obtained from Verizon Wireless and do not exist in the custody, possession, or control of the Township. Blose further stated ...


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