Commonwealth v. Records
| Decision Date | 11 June 2012 |
| Citation | 48 A.3d 503 |
| Parties | COMMONWEALTH of Pennsylvania, PENNSYLVANIA GAMING CONTROL BOARD, Petitioner v. OFFICE OF OPEN RECORDS, Respondent. |
| Court | Pennsylvania Commonwealth Court |
OPINION TEXT STARTS HERE
Denise L. Miller–Tsudhy, Assistant Chief Counsel, Harrisburg, for petitioner.
Dena Lefkowitz, Chief Counsel, Harrisburg, for respondent.
John J. Talaber, Assistant Counsel, Harrisburg, for amicus curiae Pennsylvania Board of Probation and Parole.
Michael D. Fabius, Philadelphia, for intervenor Valley Forge Convention Center Partners, LP.
BEFORE: LEADBETTER, President Judge 1, and McGINLEY, Judge, and PELLEGRINI, Judge, and COHN JUBELIRER, Judge, and SIMPSON, Judge, and LEAVITT, Judge and McCULLOUGH, Judge.
OPINION BY Judge LEAVITT.
The Pennsylvania Gaming Control Board (Gaming Board) petitions for review of a decision of the Office of Open Records (Open Records) ordering the Gaming Board to release certain documents requested by James D. Schneller (Schneller). Open Records held that Schneller's request was governed by the Right–to–Know Law 2 even though his request did not mention the Right–to–Know Law or use the Gaming Board's form adopted for record requests. We affirm in part and vacate in part.
The procedural history is as follows. On March 20, 2009, Schneller, a member of “Eastern Pennsylvania Citizens Against Gambling,” sent an e-mail to Catherine Stetler in the Gaming Board's Communications Office.3 Schneller requested copies of “communications” between the Gaming Board and several applicants for gaming licenses and copies of the financial data that each applicant provided to the Gaming Board. Schneller also asked to be allowed to speak at the Gaming Board's next public hearing. In its entirety, Schneller's e-mail stated:
Att: Mrs. Stetler
Pennsylvania Gaming Control Board
P.O. Box 69060
Re: Application of Valley Forge Convention Center Partners, LLP, Application of Bushkill Group, Inc., Petition of HSP Gaming, LP, Petitions of Sands Bethworks Gaming LLC, and Philadelphia Entertainment and Development Partners, L.P.
Dear Mrs. Stetler:
I am writing to repeat my verbal and written requests of February 2009 for copies of the communications sent to the Category 3 license applicants pertaining to the directive of the Board issued on January 21, 2009, that new financial data be submitted, and their responses thereto, including the financial data.
I am also writing to request to speak at the public hearing scheduled for March 25th, 2009, on the topic of public concerns regarding the pending applications for Category 3 licenses, in the event that those applications are scheduled for any discussion or proceeding on that date.
Thus I ask that 72 or 48 hours' notice be granted us of any inclusion of said topics on the agenda. Thank you for your assistance.
Sincerely,
James D. Schneller
cc: Cyrus R. Pitre, Douglas Harbach, Raymond Quaglia Esquire, William Downing III Esquire
Reproduced Record at 6a–7a (R.R. ––––).
By return e-mail on March 24, 2009, Stetler informed Schneller that he would be allowed to speak at the Gaming Board's public hearing the following day. However, Stetler did not respond to Schneller's request for “communications” and “financial data,” nor did she forward Schneller's request to the Gaming Board's Open Records Officer. When Schneller did not hear from the Gaming Board by March 30, 2009, he deemed his request for information to be denied and appealed to Open Records.4
In his appeal to Open Records, Schneller asserted that the Gaming Board had denied his request for public records improperly under the standards in the Right–to–Know Law.5 The Gaming Board responded that Schneller did not present a proper Right–to–Know Law request.
Before Open Records, the Gaming Board argued that Schneller could not appeal the “denial” of his document request because he had not presented a valid Right–to–Know Law request in the first place. At the time of Schneller's request, the Gaming Board's “Right to Know Law Policy and Procedure” stated that “written requests” must:
1. Be addressed to the Board's Open Records Officer at:
303 Walnut Street Strawberry Square
Verizon Tower, 5th Floor
Harrisburg, PA 17101–1825
(717) 346–8350(fax)
pgcbrtkl requests@ state. pa. us
Requests received in other offices will be forwarded to the Open Records Officer; however, the request will not be considered received until the Open Records Officer has received the request.
2. State that the request is being made pursuant to the [Right–to–Know Law];
3. Be submitted in writing by mail, by facsimile, in person, or by e-mail;
4. Be made on the form designated on the Board's website www. pgcb. state. pa. us or the form provided by the Office of Open Records;
5. Be sufficiently specific to enable the Board to ascertain which records are being requested; and
6. Be from a person that is a legal resident of the United States.
R.R. 30a–31a (emphasis added).6 Because Schneller's request did not state it was a Right–to–Know Law request and was not presented on the Gaming Board's form for such requests, the Gaming Board argued it had no duty to respond. Accordingly, Schneller had not received a deemed denial that could be appealed to Open Records.
Open Records held otherwise. It reasoned that “[the Gaming Board] cannot simply choose to ignore a citizen's written request for records because it does not conform with its policies and/or procedures.” R.R. 5a. Open Records noted that there is no statutory requirement that a person must cite to the Right–to–Know Law in a request for access to public records. To the contrary, a request need only be in writing for a requester to invoke the remedies in the Right–to–Know Law, including an appeal to Open Records. Section 702 of the Right–to–Know Law, 65 P.S. § 67.702.7 Further, Open Records noted that Section 703 mandates that “[e]mployees of an agency shall be directed to forward requests for records to the open-records officer.” 65 P.S. § 67.703. Indeed, the Gaming Board's own policy promised that “[r]equests received in other offices will be forwarded to the Open Records Officer.” R.R. 30a. In other words, it did not matter that Schneller's request was submitted to the Communications Office instead of to the Open Records Office; his request should have been forwarded to the Open Records officer under the Gaming Board's own policy. Open Records held that the Gaming Board's failure to respond to Schneller's request constituted a deemed denial. Further, because the Gaming Board did not offer any substantive defenses to Schneller's request for records, Open Records ordered the Gaming Board to release the requested records within 30 days. The Gaming Board then petitioned for this Court's review of Open Records' decision.8
On appeal, the Gaming Board presents two issues for our consideration.9 First, the Gaming Board argues that Open Records erred in concluding that Schneller made a valid Right–to–Know Law request. Second, even assuming Schneller did make a valid Right–to–Know Law request, the Gaming Board argues that Open Records erred in ordering the disclosure of the records sought by Schneller because they are exempt from disclosure.10
We begin with the Gaming Board's contention that it may ignore a written request that does not conform to its policy, which is available on its website. Schneller's written request failed to conform to the Gaming Board's policy in two ways: (1) it did not cite to the Right–to–Know Law and (2) it was not submitted on either the Gaming Board's request form or Open Records' uniform request form. Accordingly, the Gaming Board believes it had no obligation to respond. The Gaming Board further argues that if it has to treat “informal” requests for information as Right–to–Know Law requests, then it, and every agency, will be crippled by a “flood of requests.”
Sweeping amendments to the Right–to–Know Law went into effect on January 1, 2009, designed 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, 990 A.2d at 824. To that end, the legislature has established a rebuttable presumption that documents in the possession of a Commonwealth agency are public records. Section 305(a) of the Right–to–Know Law, 65 P.S. § 67.305(a).11 The burden of provingthat a record is exempt from public access is on the Commonwealth agency. Section 708(a)(1) of the Right–to–Know Law, 65 P.S. § 67.708(a)(1).12
The Right–to–Know Law authorizes an agency to respond to requests for public records whether presented orally or in writing. Section 702 of the Right–to–Know Law, 65 P.S. § 67.702.13 However, “[i]f the requester wishes to pursue the relief and remedies provided for in [the Right–to–Know Law], the request ... must be ... written.” Id.
At issue is the meaning of Section 703 of the Right–to–Know Law, which establishes the requirements of a written request for access to records. It states as follows:
A written request for access to records may be submitted in person, by mail, by e-mail, by facsimile or, to the extent provided by agency rules, by any other electronic means. A written request must be addressed to the open-records officer designated pursuant to section 502. Employees of an agency shall be directed to forward requests for records to the open-records officer. A written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested and shall include the name and address to which the agency should address its response. A written request need not include any explanation of the requester's reason for requesting or intended use of the records unless otherwise required by law.
65 P.S. § 67.703 (emphasis added). The “written...
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