July 9, 2015
PG Publishing Company, Inc. d/b/a the Pittsburgh Post-Gazette, Petitioner
Governor's Office of Administration and the Pennsylvania Department of Education, Respondents
Argued, June 18, 2015.
As Amended July 10, 2015.
Court of ORIGINAL JURISDICTION.
Frederick N. Frank, Pittsburgh, for petitioner and intervenors PA Media Group d/b/a The Patriot-News and PennLive, Texas-New Mexico Newspapers Partnership and LNP Media Group, Inc.
Jullia A. Sheridan, Chief Counsel, Harrisburg, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P.), HONORABLE P. KEVIN BROBSON, Judge.
The Governor's Office of Administration (GOA) and the Pennsylvania Department of Education (PDE) filed preliminary objections to PG Publishing Company, Inc. d/b/a The Pittsburgh Post-Gazette (PG Publishing)'s amended petition for review. For the reasons that follow, we sustain the GOA and PDE's demurrers and dismiss PG Publishing's amended petition for review with prejudice.
PG Publishing filed an amended petition for review in the nature of a complaint in mandamus (amended PFR) challenging the GOA's and PDE's e-mail-retention policies under the Right-to-Know Law (RTKL) and Section 701( l ) of the Administrative Code of 1929 (Administrative Code). According to PG Publishing, an e-mail retention policy established by GOA and followed by the Commonwealth's executive-branch agencies, including PDE, affords each employee discretion to determine whether an e-mail constitutes a " public record"  that should be saved under the RTKL or if it may be deleted as a
" transitory" or " non-record."  (Am. PFR ¶ ¶ 5, 38.)
According to PG Publishing, if an employee determines that an e-mail has no value as a " public record" under the RTKL, it is deleted from the employee's inbox and five days later is permanently deleted from the executive agency's server, with no possibility of recovery. ( Id. ¶ ¶ 6-7.) To this extent, Chapter 9, Section 10 of the State Records Management Manual (M 210.7) provides:
E-mail messages and attachments received or sent (incoming or outgoing) that meet the definition of records must be retained and disposed of in accordance with agency-specific and/or general retention and disposition schedules
approved by the Executive Board. E-mail messages, in and of themselves, are not a single record series. Retention periods will vary depending upon the function and content of the individual message. E-mail messages and attachments that meet the definition of records must meet the retention requirements for the same type of record (record series) as listed on an approved records schedule. For example, if the E-mail message constitutes correspondence relating to a specific program activity, it would be retained for the same length of time as other records in that series.
According to Management Directive 210.13,` E-mail messages and attachments that do not meet the definition of records and are not subject to litigation or other legal proceedings should be deleted immediately....
State Records Management Manual (M 210.7), Chapter 9-10 (Am. PFR, Ex. A, at 9-10.)
By way of example, PG Publishing notes that it filed a RTKL request with PDE seeking correspondence pertaining to Mr. Tomalis's work as a special advisor on higher-education issues, in response to which only five e-mails sent by Mr. Tomalis were provided. (Am. PFR ¶ 40.) During a subsequent interview, then-Acting Secretary of Education, Carolyn Dumaresq, indicated that she may have saved additional e-mails sent to her by Mr. Tomalis. ( Id. ¶ 42.) When questioned as to why those e-mails were not provided in response to the request, Secretary Dumaresq's spokesman, Tim Eller, stated that only Mr. Tomalis's e-mail inbox was searched, and then-Acting Secretary Dumaresq stated that Mr. Tomalis likely deleted the e-mails because he no longer needed them. ( Id. ¶ ¶ 41, 43.) In this way, PG Publishing further alleged that the discretion provided to PDE employees in classifying documents and, therefore, determining the disposal schedule to which they are subject does not conform to the system established by GOA, as evidenced by the fact that two employees disagreed over their classification. ( Id. ¶ ¶ 60-70.)
PG Publishing asserts that the subject e-mail retention policies vitiate the public's rights under the RTKL because they enable the GOA and PDE to destroy e-mails that could be the subject of litigation under the RTKL without recourse in the event that the OOR or courts ultimately determine that an agency has not satisfied its burden in proving that a requested e-mail is not a public record. ( Id. ¶ ¶ 39, 45, 47.) Accordingly, PG Publishing sought to enjoin the GOA from destroying e-mails after five days, to compel it to maintain records on its central server for at least two years, and to direct it to inform all agencies that no e-mails may be destroyed until preserved on the central server. ( Id. ¶ 71(a)(i)-(3)). It further sought an order enjoining PDE employees from purging their e-mails on a daily basis and compelling the PDE's RTKL Officer to search GOA's archived server with regard to each RTKL request received. ( Id. ¶ 71(b)(i)--(ii)).
In response, the GOA and PDE filed preliminary objections seeking dismissal of the amended PFR because: (1) PG Publishing lacks capacity to sue insofar as it lacks standing to maintain its mandamus action because it asserts only a generalized grievance shared by the public at large; (2) the RTKL does not establish a record-retention policy for any government entity and, therefore, does not provide a right to relief; (3) PG Publishing failed to assert that any e-mail was not properly preserved pursuant to the GOA's record-retention policy and is not entitled to relief under the Administrative Code; (4) since
PG Publishing has not demonstrated a clear right to relief under the RTKL or the Administrative Code, an action in mandamus cannot lie; and (5) sovereign immunity bars PG Publishing's lawsuit seeking to compel affirmative action by the GOA and PDE.
In adjudicating preliminary objections alleging a lack of capacity to sue, we must consider the petitioner's standing. Upper Moreland v. Commonwealth, Pennsylvania Dep't of Transp., 48 Pa.Cmwlth. 27, 409 A.2d 118, 119 (Pa.Cmwlth. 1979). Our Supreme Court has explained that the hallmark of standing is that " a person who is not adversely affected in any way by the matter he seeks to challenge is not 'aggrieved' thereby." William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 280 (Pa. 1975). An individual is aggrieved if he has a " substantial, direct and immediate interest in the outcome of the litigation." Fumo v. City of Philadelphia, 601 Pa. 322, 972 A.2d 487, 496 (Pa. 2009). Further:
A " substantial" interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law. A " direct" interest requires a showing that the matter complained of caused harm to the party's interest. An " immediate" interest involves the nature of the causal connection between the action complained of and the injury to the party challenging it. Yet, if that person is not adversely affected in any way by the matter he seeks to challenge[, he] is not " aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be " aggrieved" to assert the common interest of all citizens in procuring obedience to the law.
In re Hickson, 573 Pa. 127, 821 A.2d 1238, 1243 (Pa. 2003) (internal quotation marks and citation omitted) (alteration in original).
Section 1301(a) of the RTKL authorizes a " requester" to file a petition for review in this Court. 65 P.S. § 67.1301(a). Section 102 defines a " requester" as " [a] person that is a legal resident of the United States and requests a record pursuant to this act. The term includes an agency." 65 P.S. § 67.102. Although the RTKL does not define " person," the term must be interpreted as " includ[ing] a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person." 1 Pa. C.S. § 1991 (" The following words and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section...." ). Because PG Publishing falls within the definition of a " person" under 1 Pa. C.S. § 1991 and otherwise satisfies the definition of a " requester" under Section 1301(a) of the RTKL, 65 P.S. § 67.1301(a), it is within the class of people that has standing to maintain a mandamus action to make the agency produce records that it is required to do so by law.
In any event, PG Publishing would have standing to bring this action under the principle set forth in Press-Enterprise, Inc. v. Benton Area School District that the press has standing to assert the public's right of access to government information. 146 Pa.Cmwlth. 203, 604 A.2d 1221 (Pa.Cmwlth. 1992). In Benton Area School District, a newspaper publisher filed suit seeking to invalidate a school board's appointment, alleging that the school board's secret interviews of candidates, secret ballot casting and refusal to advise the press on how each director voted violated the then-current Pennsylvania Sunshine Act of 1986. Id. at 1222-23. After determining that Section 15 of the Sunshine Act conferred standing upon the press, this Court went on to conclude that the press also satisfied traditional standing principles:
The substantial interest of Press-Enterprise in this case stems from the purpose of the Sunshine Act and the press's role in our society. The purpose of the Sunshine Act is to give citizens the opportunity to observe the decision-making process of public agencies. § 2 of the Act, 65 P.S. § 272[, repealed by Act of Oct. 15, 1998, P.L. 729]. The role of the press is to disseminate information; if that information is withheld from the press, many concerned citizens who do not attend public meetings would have no way of informing themselves of their government's activities and the purpose of the statute would be subverted. Thus, the press's interest in this case is different from that of the average citizen because the average citizen does not bear the news media's responsibility of informing the public.
Thus, even under traditional standing principles as stated in William Penn Parking, Press-Enterprise would have standing because of the media's unique role and interest in observing government activity in our democracy.
Id. at 1225.
Notably, the Sunshine Act and the RTKL share similar purposes. While the Sunshine Act provided " citizens the opportunity to observe the decision-making process of public agencies," id. at 1225 (citing Section 2 of the Sunshine Act of 1986, 65 P.S. § 272, repealed by Act of October 15, 1998, P.L. 729), the RTKL seeks to " promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions." Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa.Cmwlth. 2010), aff'd, 621 Pa. 133');">621 Pa. 133, 75 A.3d 453 (Pa. 2013); see also SWB Yankees, LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029, 1042 (Pa. 2012) (noting that the RTKL's purpose is " to empower citizens by affording them access to information concerning the activities of their government" ).
Both statutes promote government transparency and provide the means for citizens and the press to obtain information necessary to secure this end. Indeed, while the Sunshine Law required certain Commonwealth agencies to hold their meetings and votes open to the public, the RTKL requires agencies to provide their records to the public. Because the same interest is implicated in this case as was implicated in Benton Area School District -- namely, the press's " unique role and interest in observing government activity in our democracy" insofar as it is charged with disseminating information to and educating the public -- PG Publishing has standing to maintain this action. 604 A.2d at 1225.
Next, PDE asserts that PG Publishing has failed to establish a right to relief under the RTKL because agencies have no duty under the RTKL to retain records for any period of time. It points to Section 507 of the RTKL providing that " Nothing in this act shall be construed to modify, rescind or supersede any record retention policy or disposition schedule of an agency established pursuant to law, regulation, policy or other directive." 65 P.S. § 67.507; see also Paint Township v. Clark, 109 A.3d 796, 808 (Pa.Cmwlth. 2015) (holding that record retention was not modified by and is expressly recognized by the RTKL).
In short, just as Section 705 of the RTKL, 65 P.S. § 67.705, does not require an agency to create a record which does not exist, Section 507, 65 P.S. § 67.507, does not create a duty on the part of agencies to maintain records if they are destroyed as part of a records-retention policy. Simply, the RTKL governs whether records currently in existence must be disclosed. Because Section 507 of the RTKL provides that nothing in the RTKL affects that policy, PG Publishing has failed to allege facts demonstrating a violation of the RTKL. Therefore, this Count of PG Publishing's PFR must be dismissed.
Nonetheless, if there is no duty under the RTKL, PG Publishing contends in its amended PFR that PDE still must retain the subject e-mails under the Administrative Code. The GOA and PDE further assert that PG Publishing has failed to assert a single instance of failure to adhere to the management directive and accompanying manuals issued by the Governor's Office under Section 701( l ) of the Administrative Code, 71 P.S. § 241( l ). In response, PG Publishing argues that its allegations with regard to Mr. Tomalis demonstrate that PDE is not adhering to the GOA's retention policy or that, at a minimum, the policy provides too much discretion to employees in classifying each record. PG Publishing argues that if a record is improperly disposed of under the disposal schedule, it cannot be recovered and, therefore, employees should not be provided discretion in determining which of the six codes applies to a particular document.
The State Records Management Manual (M 210.7) and related directives provide explicit instruction regarding how to classify documents. As noted above, the guidelines provide express definitions, standards and examples of each classification. Moreover, all Commonwealth employees are to be trained on the policies and how to comply with them. Definitive standards are
provided, and employees are provided little to no discretion in following those policies. Admittedly, the Manual and related guidelines cannot contemplate each and every type of record an employee could possibly encounter and provide separate retention schedules for each. The minor discretion afforded employees in carrying out the mandates of the Manual and other GOA directives is proper and indeed necessary until the GOA employs executive officials or lawyers to review each and every e-mail an employee proposes deleting pursuant to the retention schedule before it is deleted. Because PG Publishing has failed to aver facts sufficient to demonstrate a violation of Section 701( l ) of the Administrative Code, 71 P.S. § 241( l ), its claim is dismissed in this regard.
Moreover, because PG Publishing has failed to establish that it has a clear right to relief under the RTKL or the Administrative Code, it, likewise, has failed to satisfy the legal standard for obtaining a writ of mandamus. See Clark v. Beard, 918 A.2d 155, 159 (Pa.Cmwlth. 2007) ( " [T]he purpose of mandamus is not to establish legal rights, but to enforce those rights which are already established." ).
Accordingly, we sustain the GOA and PDE's preliminary objections and dismiss PG Publishing's amended PFR with prejudice.
AND NOW, this 9th day of July, 2015, upon consideration of the Governor's Office of Administration and The Pennsylvania Department of Education's preliminary objections, the amended petition for review in the nature of a complaint in mandamus filed by PG Publishing Company, Inc. d/b/a The Pittsburgh Post-Gazette, is dismissed with prejudice.