Haverstick v. Pa. State Police, 1042 C.D. 2020

CourtCommonwealth Court of Pennsylvania
Writing for the CourtOPINION BY JUDGE McCULLOUGH
Parties Matthew HAVERSTICK, Petitioner v. PENNSYLVANIA STATE POLICE, Respondent
Docket Number1042 C.D. 2020
Decision Date12 April 2022

273 A.3d 593

Matthew HAVERSTICK, Petitioner
v.
PENNSYLVANIA STATE POLICE, Respondent

No. 1042 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued December 13, 2021
Decided April 12, 2022


James G. Gorman, III, Philadelphia, for Petitioner.

Nolan B. Meeks, Deputy Chief Counsel, Harrisburg, for Respondent.

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE McCULLOUGH

Matthew Haverstick (Requester) petitions for review of the September 21, 2020 final determination of the Office of Open Records (OOR) that granted in part, denied in part, and dismissed as moot in part his request for certain information from the Pennsylvania State Police (PSP) under the Pennsylvania Right-to-Know Law (RTKL).1 The issues in this case are whether Requester waived his objection to documents that the PSP provided him on the closing date of the record in the appeal before the OOR and, if he did not, whether the PSP could redact documents or portions of those documents as records that are non-responsive to the request. Upon review, we conclude that Requester did not waive his objection to the belatedly produced records and that non-responsiveness is not a legal basis upon which to redact an otherwise disclosable public record. Accordingly, we affirm in part, reverse in part and remand.

Background

This case presents predominately procedural issues under the RTKL and the specifics of the request and the substantive content of the documents are largely irrelevant. On June 1, 2020, Requester submitted a request to the PSP, seeking four classes of documents. More specifically, Requester sought documents that reflected communications between the PSP and the Gaming Control Board (Item 1), the PSP and the Department of Revenue (Item 2), the PSP and an individual acting on behalf of a casino (Item 3), and the PSP and the Pennsylvania Liquor Control Board (Item 4), with respect to "skill games" as that term is understood in light of this Court's decision in POM of Pennsylvania, LLC v. Department of Revenue , 221 A.3d 717 (Pa. Cmwlth. 2019) (en banc ). (Final Determination at 1-2.)

On July 22, 2020, following Requester's agreement to an extension of time for the PSP to respond beyond the 30-day statutory extension, see section 902(b)(2) of the RTKL, 65 P.S. § 67.902(b)(2), the PSP granted the request in part and denied it in part. With respect to the denial, the PSP argued that it did not possess records responsive to Items 1 and 4 and asserted that some records responsive to Items 2 and 3 were protected by the attorney-client privilege and the attorney work-product doctrine. On August 12, 2020, Requester appealed to the OOR, challenging the denial as to Items 1, 2, and 4 and setting forth grounds for disclosure. Requester did not appeal the PSP's response to Item 3 of the request. Subsequently, the OOR invited both parties to supplement the record and directed the PSP to notify any third parties of their ability to participate in the appeal. See section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). (Final Determination

273 A.3d 595

at 2; Reproduced Record (R.R.) at 3a-5a, 8a-16a, 25a-28a.)

On August 25, 2020, Requester notified the OOR that he had not received a docketed appeal packet and agreed to extend the deadlines to accommodate all parties’ participation in the matter. On that same date, the OOR informed the parties that the record would close on September 2, 2020, and a final determination would issue on September 21, 2020. On September 2, 2020, Requester filed a position statement. The PSP also filed its position statement on September 2, 2020. In its position statement, the PSP submitted a statement made under the penalty of perjury by its agency open records officer, William Rozier, to support its assertion that no records existed in response to Items 1 and 4 and that the records withheld in response to Item 3 were protected by the attorney-client privilege and attorney work-product doctrine. (Final Determination at 2-3; R.R. at 37a-148a.)

Also, on September 2, 2020, the date on which the record was scheduled to close, the PSP provided Requester, for the first time, with additional documents responsive to those sought in Item 2 (Records). Specifically, the PSP submitted the Records with its position statement. Moreover, with regard to the Records, Rozier, in his verified statement mentioned directly above, attested as follows: "[U]pon further review of records responsive to Item 2 of the request, I determined that some responsive email communications are not exempt from disclosure. I provided those records to [ ] Requester on September 2, 2020. Non-responsive communications in those records have been redacted." (Final Determination at 10; R.R. at 144a, 149a-66a.)

On September 11, 2020, the OOR sent an email to the parties, informing the attorney for the PSP that it required some additional evidence regarding the PSP's claim that certain withheld documents were protected from disclosure by the attorney-client privilege and the attorney work-product doctrine. In this email, the OOR instructed the PSP to "provide a response in the form of an affidavit by September 15, 2020." (R.R. at 167a.) The PSP submitted a supplemental affidavit from Rozier, as well as a supplemental privilege log, to the OOR on September 15, 2020. (R.R. at 168a-73a.)

On September 21, 2020, the OOR issued its final determination. Relevant to this appeal, the OOR concluded: "During the appeal, the PSP provided [the Records] a[s] responsive to Item 2 of the request. Rozier affirmed that non-responsive communications in [the Records] have been redacted and Requester has not objected to such. As such, the appeal as to [the Records] provided on appeal is dismissed as moot." (Final Determination at 10.)2

273 A.3d 596

Subsequently, on October 21, 2020, Requester filed the present petition for review, challenging the September 21, 2020 final determination of the OOR in this Court.3

Discussion

In his appellate brief, Requester raises two general issues for our review, asking whether: (1) "Under [s]ection 1101(a)(1) of the [RTKL], when a government agency belatedly produces redacted records, is it appropriate for the OOR to issue a determination as to those belatedly produced records before the requester's 15-day statutory appeal deadline has lapsed"; and (2) "Under [s]ection 708 of the [RTKL], is ‘non-responsiveness’ an appropriate basis to redact responsive records"? (Requester's Br. at 7.) Subsumed within the first—and, to an extent, the second—issue is the subsidiary question of whether Requester failed to properly preserve an objection to the Records during the proceedings below.

Was Requester Statutorily Entitled to a 15-day Period to Object to the Additional Records and, if not, was He Afforded a Sufficient Opportunity in which to Lodge an Objection

Requester argues that the OOR erred in issuing a final determination and concluding that any appeal with respect to the Records was moot because he did not object to them before the OOR. Relying on the 15-day deadline set forth in section 1101(a)(1) of the RTKL, 65 P.S. § 67.1101(a)(1), and our unreported decision in Buehl v. Pennsylvania Department of Corrections, 2015 WL 5458813 (Pa. Cmwlth., No. 198 C.D. 2015, filed July 27, 2015) (unreported), Requester contends "that there are two separate events that trigger appeal rights: the date the request is denied and the date [a] [r]equester receives the records." (Requester's Br. at 15.) From this, Requester maintains that he should have had 15 days to appeal and challenge the PSP's redaction of parts of the Records, which would have been September 23, 2020, and faults the OOR for issuing a "premature" final determination on September 21, 2020.

Relatedly, Requester contends that he had no meaningful opportunity to review the Records and lodge an objection to the redactions before the OOR because he received the Records on the date the record closed. Advancing a public policy argument, Requester further stresses that "[t]he core purpose of the RTKL is to ensure access to agency records" and contends that the OOR's determination that any appeal from the Records was moot "plainly goes against the...

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