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Capinski v. Upper Pottsgrove Township

Commonwealth Court of Pennsylvania

June 14, 2017

James Capinski, Appellant
v.
Upper Pottsgrove Township

          Argued: September 13, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge (P) HONORABLE ANNE E. COVEY, Judge

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE

         James 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.

         On July 1, 2014, Capinski, using the Township's "Record Request Form, " requested the production of documents under authority of the Right-to-Know Law.[1] 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

         Reproduced 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.

         On 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 possession.
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].

         Final Determination of Office of Open Records at 5-6; R.R. 51-52 (emphasis added). Neither Capinski nor the Township appealed the final determination.

         On 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.

         Carol 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 follows:

[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 records?
[Lewis]: I did.
[Counsel for the Township]: What was the result of your effort?
[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 "financial records."

         Lewis 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[2] 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 ...

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