Argued: September 13, 2016
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE P. KEVIN BROBSON, Judge (P) HONORABLE ANNE E.
HANNAH LEAVITT, PRESIDENT JUDGE
Capinski appeals the order of the Court of Common Pleas of
Montgomery County (trial court) denying his petition to
compel compliance with two final determinations of the Office
of Open Records directing Upper Pottsgrove Township to
produce public records requested by Capinski. The trial court
denied the petition because it concluded that the Township
had provided Capinski with all the responsive public records
in its possession and control. The Township agrees with the
trial court's conclusion but also argues that the trial
court lacked jurisdiction to entertain Capinski's
petition. For the reasons that follow, we affirm.
1, 2014, Capinski, using the Township's "Record
Request Form, " requested the production of documents
under authority of the Right-to-Know Law. Capinski
submitted two requests for information about an "Escrow
for Highview Lane." The first request, which attached a
1966 settlement between the Township and the Aetna Casualty
and Surety Company and a 1973 settlement between the Township
and Paul F. Mauer, Jr., stated as follows:
Documents and records for:
A) Collection and deposit of escrow from Penwood Agency
B) Use of escrow from Penwood Agency
C) Current status of escrow from Penwood Agency
Record at 80 (R.R.___). Capinski's second request, which
attached the Township's complaint against the Aetna
Casualty and Surety Company, stated as follows:
Documents and records for:
A) Collection and deposit of escrow from Paul F. Mauer, Jr.
B) Use of escrow from Paul F. Mauer, Jr.
C) Current status of escrow from Paul F. Mauer, Jr.
R.R. 98. On July 25, 2014, the Township wrote to Capinski
explaining that it had searched its records and found no
responsive documents in its possession. On August 6, 2014,
Capinski appealed to the Office of Open Records.
September 30, 2014, the Office of Open Records issued two
final determinations sustaining Capinski's appeal. The
final determinations directed the Township to conduct a
search for responsive public records from third parties that
may hold these records on behalf of the Township. The Office
of Open Records explained:
Based on the materials provided, the Township has
established that no responsive records exist in its
The finding that the Township does not possess responsive
records, however, does not end the inquiry, as an agency is
required to provide public records within its
"possession, custody or control." See
[Section 901 of the Right-to-Know Law, ] 65 P.S.
§67.901; see also [Section 506(d)(1) of the
Right-to-Know Law, ] 65 P.S. §67.506(d)(1) (requiring
agencies to provide records in the hands of third party
contractors) …[Accordingly], [t]he Township is
required under the [Right-to-Know Law] to obtain any
responsive records, if any exist, from its banking
institution and provide them to [Capinski].
Determination of Office of Open Records at 5-6; R.R. 51-52
(emphasis added). Neither Capinski nor the Township appealed
the final determination.
January 21, 2015, Capinski filed "a Petition to Enforce
the Office of Open Records' Determinations" pursuant
to Section 1302 of the Right-to-Know Law. The petition sought
the Township's production of public records in accordance
with the final determinations, attorney fees and civil
penalties. On August 19, 2015, the trial court conducted an
evidentiary hearing on Capinski's petition.
Lewis, the Township's Manager and Open Records Officer,
testified about her search for the requested records. She
explained that Capinski and the Township had been engaged in
litigation, in the course of which the Township provided
numerous documents to Capinski. After verifying with the
Township's attorney the list of documents Capinski had
been given, Lewis then searched for documents Capinski did
not have, i.e., documents from third party financial
institutions. She described her search for these records as
[Counsel for the Township]: What was your understanding of
what Mr. Capinski was seeking to obtain through the
Right-to-Know requests that were submitted ...?
[Lewis]: Bank records pertaining to the two escrows which
would include cancelled checks, statements, receipts, things
of that sort.
[Counsel for the Township]: Did you try to find those
[Lewis]: I did.
[Counsel for the Township]: What was the result of your
[Lewis]: I found nothing at the Township building.
* * *
[Lewis]: I didn't expect to find the records, although I
did look, because most Townships follow the document
destruction put forth by the Historical Museum Commission,
and I know our Township also follows that. That outlines that
most financial records -- all financial records are
destroyed, are only kept for seven years.
R.R. 122-23. On cross-examination, Lewis conceded that
Capinski's Right-to-Know requests did not use the term
further testified about her search method for responsive
public records held by third parties, as directed in the
final determinations of the Office of Open Records:
I researched through the minutes to find out what
depositories the Township used at that time. And then, from
there, I researched where those banks are today. I found out
that both banks had been taken over in the '70s by
different depositories. And then, after that, I lost track of
who took over from there.
So, therefore, I went and I talked to our current depository,
which is Fulton Bank, to find out what best practices are in
banking institutions, what happens to ...