Argued June 18, 2015
Appealed from No. AP 2014-0906. State Agency: Office of Open Records.
Patrick C. Lord, Harrisburg, Assistant Counsel, for petitioner.
Frederick N. Frank, Pittsburgh, for respondent.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE BERNARD L. McGINLEY, Judge (P.), HONORABLE P. KEVIN BROBSON, Judge.
P. KEVIN BROBSON, J.
The Pennsylvania Department of Education (PDE) petitions for review of the Office of Open Records' (OOR) final determination granting the Pittsburgh Post-Gazette's (Requester) request for records under the Right-to-Know Law (RTKL). For the reasons stated below, we reverse.
On August 5, 2014 the Requester filed a RTKL request (Request), seeking " [a]ll of the emails of Acting Secretary of Education Carolyn Dumaresq as they pertain to the performance of her duties as Acting Secretary since she was appointed on Aug. 25, 2014 to date." (Reproduced Record (R.R.) 7a.) On August 8, 2014, PDE called Requester and asked that the Request be clarified " to enable [PDE] to identify with specificity the records being sought." (R.R. 13a.) On August 12, 2014, PDE issued an initial response, notifying Requester that PDE would require up to an additional thirty days to respond to the Request, as provided for in Section 902(b) of the RTKL. By letter dated August 22, 2014, PDE again asked that Requester " clarify your request by providing more information about what records you are seeking, particularly since you request emails for a period of nearly one year." (R.R. 11a.) By letter dated August 25, 2014, Requester declined to clarify the Request. PDE issued its final response on September 11, 2014, denying the Request as insufficiently specific under Section 703 of the RTKL.
Requester appealed PDE's denial to OOR on September 24, 2014. OOR issued a Notice of Appeal the next day, which notified Requester and PDE that any information
or legal argument they wished to submit was due by 5:00 p.m. on October 6, 2014. PDE submitted supplemental information and argument by letter dated October 6, 2014. PDE argued that the Request lacked specificity because it did not specify a subject matter or individual correspondents. PDE further argued that if OOR found the Request was sufficiently specific, PDE should " be given an opportunity, following that determination, to fully prepare the records for review and redaction, and cite all applicable exemptions" and be allowed to require prepayment of fees if the estimate exceeds one hundred dollars. (R.R. 39a.) Requester submitted a reply to PDE's October 6, 2014 letter, which PDE objected to, as it was submitted on October 14, 2014, a week past the October 6, 2014 deadline. OOR declined to consider Requester's reply because it was submitted after the record closed.
OOR issued its final determination on October 24, 2014, in which it held: (1) the Request was sufficiently specific; (2) PDE could not seek prepayment of fees because it failed to include an estimate in its initial response; (3) PDE could not bifurcate the proceedings before OOR-- i.e., PDE was required to assert any applicable exemptions or privileges at the time of the appeal and could not seek to assert them after losing the specificity challenge; and (4) PDE failed to establish that any exemptions or privileges applied to the ...