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Office of District Attorney of Philadelphia v. Ryan Bagwell Office of District Attorney of Philadelphia

Commonwealth Court of Pennsylvania

February 16, 2017

Office of the District Attorney of Philadelphia, Appellant
v.
Ryan Bagwell Office of the District Attorney of Philadelphia, Appellant
v.
Ryan BagwellCity of Philadelphia, Appellant
v.
Ryan Bagwell City of Philadelphia
v.
Ryan Bagwell Appeal of: Office of District Attorney of Philadelphia

          Submitted: October 7, 2016

          BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

          OPINION

          JAMES GARDNER COLINS, Senior Judge

          On February 17, 2016 Judge Linda Carpenter of the Court of Common Pleas of Philadelphia County (Trial Court) issued an opinion and order affirming the March 23, 2015 final determination of the Office of Open Records (OOR) that ordered the production of certain documents responsive to a request made by Ryan Bagwell (Requester) on September 29, 2014 (Request I) pursuant to the Right to Know Law[1] (RTKL). The City of Philadelphia (City) and the Office of the District Attorney of Philadelphia (District Attorney) appealed the Trial Court's order to this Court and the appeals, docketed at Nos. 435 and 473 C.D. 2016, were consolidated for review.

         Prior to the February 17, 2016 order, Judge Carpenter of the Trial Court also issued orders on October 23, 2015 and on December 2, 2015 affirming a separate but related request for records made by Requester on October 2, 2014 (Request II), and issued a civil penalty pursuant to Section 1305(a) of the RTKL. The District Attorney appealed the October 23, 2015 and December 2, 2015 orders issued by the Trial Court to this Court and the appeals, docketed at Nos. 2627 and 2641 C.D. 2015, have been consolidated for review.

         On October 7, 2016, the two sets of consolidated appeals from the Trial Court were submitted on briefs[2] for disposition by this Court and, due to the interrelated nature of the consolidated appeals, the following opinion will address this Court's reasons for affirming the Trial Court's orders in the two consolidated appeals.[3]

         I. Background

         Request I

         On September 29, 2014, Requester submitted the following enumerated request for records to the City pursuant to the RTKL:

1. a document or documents that identify all backups of the [City's] Lotus Notes e-mail system that were created between January 1, 2013, and August 31, 2013 and currently exist;
2. all policies and procedures in effect from January 1, 2013 through August 31, 2013 that pertain to the backup and archiving of the [City's] Lotus Notes e-mail system;
3. all policies pertaining to [City] Internet and e-mail use that were in effect from January 1, 2013 through August 31, 2013;
4. all letters, e-mails and memos sent to the [District Attorney] in July and August 2013 regarding the [District Attorney's] conversion from using the Lotus Notes e-mail system to the Microsoft Exchange e-mail system;
5. all records of network traffic emanating from the workstation of [District Attorney] employee Frank Fina between July 1, 2013 and September 31, 2013, including, but not limited to, website browsing history;
6. records of inquiries from the [District Attorney] about searching the [City's] Lotus Notes and Exchange e-mail systems between July 1, 2013 and September 31, 2014;
7. all records of technical support inquiries by [District Attorney] employee Frank Fina from January 1, 2013 through September 31, 2013, and;
8. all [City] record retention policies in effect from January 1, 2013, through September 31, 2014.

(Nos. 435/473 CD. 2016: Certified Record (C.R.) Records Request I, Reproduced Record (R.R.) at 14a (emphasis added).) Following an extension, the City denied the request as a whole as "an improper attempt to circumvent the Court's jurisdiction over the discovery process, " and as relating to a judicial order, and denied Item Nos. 1, 2, a portion of 5, 6 and 7 on the basis that no records existed which were within the City's possession, custody or control, and further denied Item No. 5 on the basis that the use of the term "network traffic" was insufficiently specific. (Nos. 435/473 CD. 2016: C.R. November 19, 2014 City Response to Records Request, R.R. at 16a-23a.) On November 20, 2014, Requester appealed the City's denial to OOR.[4]

         On December 10, 2014, the City alerted Requester and OOR that records responsive to Item Nos. 1, 2 and portions of 5 and 7 do not exist, but that records responsive to Item No. 6 had been located; however, the City stated that the records responsive to Item No. 6 were protected from disclosure by the attorney work product doctrine and attorney-client privilege, as well as the internal predecisional deliberations exception and due to the fact that the records were created in connection with litigation. (Nos. 435/473 CD. 2016: C.R. December 10, 2014 City Letter Brief to OOR.) On December 11, 2014, OOR required the City to submit a privilege log no later than December 16, 2014 identifying the records responsive to Item No. 6 and the reason for withholding each record. (Nos. 435/473 C.D. 2016: C.R. OOR Email Request for Privilege Log and City Response.) On December 19, 2014, the City asserted in an email response to OOR that OOR was without authority to require the City to submit a privilege log, however, the City produced a privilege log nonetheless; the City also withdrew its assertion of attorney-client privilege.[5] (Id.; C.R. Privilege Log.) On January 5, 2015, OOR required the City to produce the records responsive to Item No. 6 for in camera inspection by the close of business on January 16, 2015. (Nos. 435/473 C.D. 2016: C.R. OOR January 5, 2015 order.)

         On March 23, 2015, OOR issued a decision granting Requester's appeal in part and denying it in part. (Nos. 435/473 C.D. 2016: C.R. OOR Decision, R.R. at 24a-37a.) In its decision, OOR rejected the City's assertion that litigation between Requester and the District Attorney served as a bar to production of documents responsive to Requester's RTKL request and that a judicial order denying access to documents sought through the discovery process was determinative of whether the same documents were publicly accessible under the RTKL. (Id. at 6-8, R.R. at 29a-31a.) OOR also concluded that Item No. 5 in Requester's request for responsive documents was sufficiently specific under the RTKL. (Id. at 9-11, R.R. at 32a-34a.) Furthermore, OOR concluded after in camera review of the records responsive to Item No. 6 that six of the documents were subject to redaction under the work product doctrine but that the remainder must be disclosed. (Id. at 11-14, R.R. at 34a-37a.) Finally, OOR concluded that the City had met its burden of demonstrating that records responsive to Item Nos. 1, 2 and portion of 5 and 7 do not exist. (Id. at 8, R.R. at 31a.) The City and the District Attorney appealed OOR's decision to the Trial Court.[6]

         The Trial Court affirmed OOR's decision in a February 17, 2016 decision and order holding that OOR did not err in concluding that Item Nos. 5 and 6 were not protected from disclosure, and ordering disclosure of all documents responsive to Items No. 5 and 6 of Requester's September 29, 2014 RTKL request to the City.[7] (Nos. 435/473 C.D. 2016: Trial Court Decision and Order.) The City and the District Attorney appealed the Trial Court's order to this Court and have limited the issue for our review to whether emails responsive to Item No. 6 of Requester's September 29, 2014 RTKL request are attorney information related to pending or impending litigation. The Trial Court issued a 1925(a) opinion on March 31, 2016.

         Request II

         On October 2, 2014, Requester submitted the following enumerated request for records to the District Attorney pursuant to the RTKL:

1. All record retention policies followed by the [District Attorney] between January 1, 2013 and October 1, 2014;
2. All policies and procedures pertaining to the backup and archiving of [District Attorney] e-mail servers that were in effect between July 1, 2013 and October 1, 2014;
3. All policies governing employee use of [District Attorney] computers and e-mail systems between July 1, 2013 and October 1, 2014;
4. All e-mails BJ Graham Rubin and Frank Fina exchanged with each other between July 1, 2013 and November 30, 2013 pertaining to my RTKL request that was received by the [District Attorney's] Open Records Officer on July 22, 2013;
5. All e-mails BJ Graham Rubin and Seth Williams exchanged with each other between July 1, 2013 and November 30, 2013 pertaining to my RTKL request that was received by the [District Attorney's] Open Records Officer on July 22, 2013;
6. All e-mails sent between Seth Williams and Frank Fina between July 1, 2013 and October 1, 2014 regarding Mr. Fina's correspondence with Judge Barry Feudale;
7. All e-mails, memos and letters exchanged by the [District Attorney] and the [City's] Office of Innovation and Technology between July 1, 2013 and October 1, 2014 pertaining to searching for e-mails on the [City's] e-mail servers and/or backup copies of the [City's] e-mail servers;
8. All e-mails, letters and memos pertaining to the [District Attorney's] transition from Lotus Notes e- mail platform to the Microsoft Exchange e-mail platform between January 1, 2013 and December 31, 2013;
9. All e-mails sent or received by Seth Williams between January 1, 2014 and October 1, 2014 pertaining to RTKL legislation in the Pennsylvania General Assembly, including but not limited to, Senate Bill 444.

(Nos. 2627/2641 C.D. 2015: C.R. Records Request II (emphasis added).) Following an extension, on November 10, 2014, the District Attorney denied the request with respect to Item Nos. 1-3 on the grounds that the request related to litigation involving the District Attorney and Requester, and specifically to items sought in a motion to compel filed by Requester that was denied by judicial order. (Nos. 2627/2641 C.D. 2015: C.R. November 10, 2014 District Attorney Response to Records Request, R.R. at 152a-154a.) The District Attorney further denied the request with respect to Item Nos. 4, 5, 6 and 9 on the basis that no records existed which were within the District Attorney's possession, custody or control. (Id.) Finally, the District Attorney denied the request with respect to Item Nos. 7 and 8 on the basis that the request was insufficiently specific and overly broad. (Id.) On November 12, 2014, Requester appealed to OOR.

         On November 21, 2014, the District Attorney alerted OOR that it was producing records responsive to Item No. 3 of Requester's request, but that it maintained that Item Nos. 4, 5, 6 and 9 do not exist within the District Attorney's possession, custody or control, Item Nos. 7 and 8 were insufficiently specific to respond to, and maintained that, despite its production, Item No. 3 was not subject to access pursuant to a judicial order in ongoing litigation. (Nos. 2627/2641 C.D. 2015: C.R. November 21, 2014, District Attorney Brief to OOR.)

         On January 12, 2015, OOR granted Requester's appeal in part, and denied it in part.[8] (Nos. 2627/2641 C.D. 2015: C.R. OOR Decision at 1, R.R. at 224a.) OOR concluded that the District Attorney had met its burden to demonstrate that records related to Item Nos. 4, 5 and 9 do not exist in the District Attorney's possession, custody or control. (Id. at 6, R.R. at 229a.) OOR further concluded that, with respect to Item No. 6, the District Attorney had construed the request too narrowly and failed to meet its evidentiary burden of proof to demonstrate that the records sought did not exist. (Id. at 6-7, R.R. at 229a-230a.) Next, OOR concluded that records responsive to Item Nos. 1 and 2 were not barred from disclosure by litigation and, because no privileges or exemptions were asserted, must be disclosed. (Id. at 7-10, R.R. at 230a-233a.) Finally, OOR concluded that Item Nos. 7 and 8 were sufficiently specific and that the District Attorney must produce responsive records. (Id. at 10-12, R.R. at 233a-235a.) The District Attorney appealed OOR's decision to the Trial Court. On September 9, 2015, one day prior to argument before the Trial Court, the District Attorney informed Requester that it was turning over records responsive to Item Nos. 1 and 2 of Request II.[9]

         On October 23, 2015 the Trial Court issued an opinion and order affirming OOR's decision and holding that OOR did not err in concluding that the intended use of responsive records, even where those records had been the subject of discovery disputes in litigation between the same parties, had no bearing on whether the documents were publicly accessible records subject to disclosure under the RTKL. (Nos. 2627/2641 C.D. 2015: Trial Court Op. at 3-5.) Next, the Trial Court held that OOR did not err in concluding that Item Nos. 7 and 8 were sufficiently specific and that the District Attorney was obligated to disclose responsive records. (Id. at 6-7.) Accordingly, the Trial Court ordered the District Attorney to "promptly disclose all documents responsive to Requests 1, 2, 7 and 8 as ordered for disclosure by the OOR's decision of January 12, 2015, " and issued a Rule to Show Cause why attorney's fees, costs and/or penalties should not be awarded pursuant to Sections 1304 and 1305 of the RTKL, 65 P.S. §§ 67.1304-1305.

         On December 2, 2015, following a hearing, the Trial Court issued an order finding that "the [District Attorney's] denial of [Requester's Request II Item Nos.] 1 and 2 was in bad faith, " and imposed a civil penalty of five hundred dollars ($500). (Nos. 2627/2641 C.D. 2015: Supplemental Record (S.R.) December 1, 2015, Hearing Transcript (H.T.).) The District Attorney appealed to this Court for review of the Trial Court's October 23 and December 2, 2015 orders and, on March 31, 2016, the Trial Court issued an opinion in support of affirmance. We would be remiss if we did not note that in its 1925(a) opinion, the Trial Court specifically noted the District Attorney's questionable representation of precedent before OOR and the Trial Court. (Nos. 2627/2641 C.D. 2015: 1925(a) Op. at 4-5.) In addition, the Trial Court reasoned that the imposition of a $500 civil penalty pursuant to Section 1305(a) of the RTKL was warranted because the District Attorney's initial response to Requester and continued refusal to disclose Item Nos. 1, 2, 7 and 8 following OOR's final determination, stood in clear contravention of the precedent of the courts of this Commonwealth and, therefore, constituted bad faith. (Id. at 8-10.)

         Before this Court, the District Attorney argues that the Trial Court erred in imposing a penalty under Section 1305(a) of the RTKL and that Item Nos. 7 and 8 of Requester's Request II are insufficiently specific, as the items seek "years' worth of technology-related correspondence between unidentified employees of the [District Attorney] and the [City]." (Nos. 2627/2641 C.D. 2015: District Attorney Brief at 19.)

         Mandamus Action

         On July 22, 2013, prior to the matters currently before this Court, Requester submitted a RTKL request to the District Attorney, seeking:

[A]ll e-mails that were sent or received by Frank G. Fina between December 1, 2012 and July 15, 2013, and were sent to or from the following individuals:
1. Louis Freeh
2. Tom Cloud
3. Greg Paw
4. Barry Feudale
5. Randy Feathers

(OOR Final Determination at 1, Docket No: 2013-1586.) On August 23, 2013, the District Attorney denied the request on the basis that it did not seek "records" as defined by Section 102 of the RTKL, 65 P.S. § 67.102. (Id. at 2.) Requester appealed the denial to OOR. (Id.) Before OOR, the District Attorney submitted a position statement reasoning that Requester's RTKL request did not implicate public records of the District Attorney as the request related to the investigation of Jerry Sandusky conducted by the Office of the Attorney General. (Id. at 2-3)

          Requester submitted a response, arguing that the burden was on the District Attorney to prove that records requested pursuant to the RTKL were not public and that the District Attorney erred in modifying the request by adding a subject matter, specifically investigations related to Sandusky. (Id. at 4.) The District Attorney submitted an additional response, arguing that Requester's RTKL request had been insufficiently specific and, therefore, it had been necessary to interpret the request as relating to the Sandusky investigation conducted by the Office of the Attorney General. (Id. at 4.)

         Following further development of the record, OOR issued a final determination on November 4, 2013 concluding that Requester's July 22, 2013 request had been sufficiently specific and that the request sought "records" within the meaning of the RTKL. (Id. at 6-10.) Accordingly, OOR granted Requester's July 22, 2013 RTKL request and required the District Attorney to provide all responsive records within thirty days. (Id. at 10.)

         On December 30, 2013, Requester filed a complaint in mandamus in the Trial Court seeking to compel the District Attorney to comply with OOR's November 4, 2013 order to provide all records responsive to Requester's July 22, 2013 RTKL request. See Ryan Bagwell v. R. Seth Williams, In his Official Capacity as District Attorney and Philadelphia District Attorney's Office, (Pa. Cmm. Pl. No. 3553, December Term, Case ID: 131203553) (Bagwell v. Williams) (complaint). During the course of Requester's mandamus action, Requester filed a motion to compel the District Attorney to provide answers to interrogatories, which included, inter alia, the following:

1. Provide any or all policies of the [District Attorney], or any office or agency whose policies to which the [District Attorney] must adhere, related to archiving, preserving, backing up or destruction of e-mail communications or e-mail data files or their contents on the District Attorney's office e-mail system.
2. As to data backups performed on all computer systems currently in use or since December 1, 2012 identifying the following:
a. All procedures and devices used to back up the software and the data, including but not limited to name(s) of backup software used, the frequency of the backup process, the type of backup drives, including name and ...

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