Smith Butz, LLC v. Pa. Dep't of Envtl. Prot.

• Decision Date: 17 June 2016
• Docket Number: No. 2026 C.D. 2015,2026 C.D. 2015
• Citation: 142 A.3d 941
• Parties: SMITH BUTZ, LLC, Petitioner v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent.
• Court: Pennsylvania Commonwealth Court

142 A.3d 941

SMITH BUTZ, LLC, Petitioner

v.PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent.

No. 2026 C.D. 2015

Commonwealth Court of Pennsylvania.

Argued April 11, 2016.

Decided June 17, 2016.

John M. Smith, Canonsburg, for petitioner.

Forrest M. Smith, Assistant Counsel, and Greg K. Venbrux, Assistant Counsel, Pittsburgh, for respondent.

BEFORE: PATRICIA A. McCULLOUGH, Judge, and MICHAEL H. WOJCIK, Judge, and ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION BY Senior Judge ROCHELLE S. FRIEDMAN

.

Smith Butz, LLC (SB) petitions for review of the September 17, 2015, final determination of the Office of Open Records (OOR), which dismissed SB's appeal from the Pennsylvania Department of Environmental Protection's (DEP) open records officer's (Records Officer) decision informing SB that it did not have in its possession, custody, or control the records requested under the Right–to–Know Law (RTKL).¹ We affirm.

On June 11, 2015, the Records Officer received SB's RTKL request² seeking:

All records associated with [the] August 30, 2010 Notice of Violation [ (NOV)³ ] for Yeager Impoundment, with said [NOV] relating to 1. Failure to properly store, transport, process or dispose of a residual waste; and 2. Failure to properly control or dispose of industrial or residual waste to prevent pollution of the waters of the Commonwealth.

This request seeks all records, including but not limited to records associated with any investigations, complaints and the resolution of the [NOV].

(RTKL Request Form at 1.)

By letter dated July 16, 2015, the Records Officer responded to SB, stating that DEP “does not have the records that you request in its possession, custody or control.”⁴ (Records Officer Decision, 7/16/15, at 1.) Further, “ ‘[i]t is not a denial of access [to records] when an agency does not possess records and [there is no] legal obligation to obtain them.’ ” (Id. (citation omitted).) On July 21, 2015, SB appealed to the OOR.

Before the OOR, SB argued that an August 30, 2010, NOV exists because: (1) it is listed on DEP's eFACTS⁵ system, (2) it is referenced in a May 2015 study on hydraulic fracturing conducted by the United States Department of Environmental Protection,⁶ and (3) a small leak related to the Yeager Impoundment was referenced in an August 30, 2010, e-mail between two representatives of Range Resources–Appalachia, LLC (Range Resources), the operator of the Yeager Impoundment.

On July 21, 2015, the OOR invited the parties to supplement the record. On July 30, 2015, DEP submitted a position statement and two attestations, arguing that no responsive records exist. DEP included an attestation signed under penalty of perjury from Jeffrey Brown, a file clerk in its Southwest Regional Office (Office), who affirmed that he searched the records in the Office and questioned Office personnel, including Dan Counahan, who supervises Bryon Miller, the DEP inspector who inspected the Yeager Impoundment on August 30, 2010. Brown concluded that “while ... inspector ... Miller described violations in the ‘Violations Details' section of the eFACTS system as the result of his August 30, 2010, inspection of the Yeager Impoundment, no records exist responsive to [SB's] request.” (Brown Attestation at 2.) DEP also submitted a similar attestation from Eric Gustafson, the Program Manager of the Bureau of the Oil and Gas Operation's Southwest District. Gustafson attested that he conducted a thorough search for the requested records and determined that DEP did not possess an August 30, 2010, NOV. (Gustafson Attestation at 2.)

On that same date, SB submitted a memorandum of law in support of its appeal and several exhibits. SB argued that DEP's evidence is insufficient because DEP only searched the Office and did not provide an attestation from Miller.

On August 12, 2015, the OOR reopened the record for the parties to clarify whether “an August 30, 2010[NOV] was issued related to the Yeager Impoundment; and [whether] ... the record exists in another [DEP] location, including [DEP's] Harrisburg offices.” (OOR Final Determination at 3.) The OOR invited DEP to submit evidence from Miller explaining why an NOV does not exist. (Id. )

On August 21, 2015, DEP submitted Miller's attestation, signed under penalty of perjury, which states in part:

4. On or about August 24, 2010, Carla Suszkowski of Range Resources ... telephoned me and stated that approximately four to five barrels of clarified brine were released from secondary containment near the Yeager Impoundment in Amwell Township, Washington County.

5. As a result of this telephone call, I entered into DEP's eFACTS system the “Violation Details” which [SB's] request lists as numbers 1 and 2.

6. I did not draft or issue a [NOV]. While I entered violation details into the eFACTS system due to the release at the Yeager Impoundment site, and though I intended to issue a [NOV], various factors precluded me or anyone else at DEP from issuing a [NOV].

7. Nowhere in my eFACTS entry did I indicate that I issued a [NOV].

8. If DEP had issued a [NOV] on August 30, 2010, regarding the Yeager Impoundment, I am the DEP staff person who would have sent it or I would know if someone else had done so, including staff in DEP's Central Office in Harrisburg or staff in my other DEP office.

9. I know of no other DEP employee who drafted or issued a [NOV].

10. Had another DEP employee issued a [NOV], I would be aware because I am the individual responsible for inspecting surface activities at oil and gas well sites for the geographic area that includes the Yeager Impoundment.

11. Had a [NOV] been issued, I would be responsible for subsequent inspections ensuring that any violation was rectified and brought into compliance with [the] Commonwealth['s] statutes and regulations. At no time did I conduct, nor was I requested to conduct, any inspection of the Yeager Impoundment to ensure compliance subject to a [NOV].^[7]

12. Had a [NOV] been issued, a file would have been created to store records regarding the [NOV]. No such file related to a[NOV] exists because no [NOV] was ever issued.

13. Because DEP did not issue a [NOV] on August 30, 2010, no records responsive to [SB's] request exist in DEP's possession, custody or control, including that of DEP's Central Office in Harrisburg and any other DEP office.

14. Because I was previously out of the office on leave, I was not able to complete this affidavit until this time; nor was I able to advise DEP and Bureau staff in a timely fashion that their file search was unnecessary because the requested [NOV] was never issued.

(Miller Attestation at 1–2.)

On that same date, SB filed a supplemental statement with exhibits, providing further background and context concerning its RTKL request. (SB Supplement, 8/21/15, at 1–8.) SB submitted the supplement to “demonstrate[ ] [DEP's] motivation to seemingly ‘misplace’ the August 30, 2010[NOV].” (Id. at 2.) In support of its argument, SB attached, among other items, three transcripts from other DEP hearings involving other parties.⁸ (Id. at 4; Exs. C, D, F.)

The OOR determined that, while Miller's attestation does not elaborate on the reasons he or anyone else with DEP failed to issue an NOV, the evidence submitted by DEP credibly demonstrated that DEP did not issue an August 30, 2010, NOV related to the Yeager Impoundment. Thus, the OOR determined that the requested records did not exist and denied SB's appeal. SB now petitions this court for review.⁹

SB contends that the OOR erred in concluding that DEP sustained its burden to demonstrate that no responsive records exist under the RTKL. We disagree.

Section 703 of the RTKL states that a “written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.” 65 P.S. § 67.703

. Upon receipt of the RTKL request, the agency must then “make a good faith effort to determine whether it has ‘possession, custody[,] or control of the identified record.’ ” Department of Corrections v. Disability Rights Network of Pennsylvania, 35 A.3d 830, 832 (Pa.Cmwlth.2012) (citation omitted). If the agency responding to the RTKL request determines that the record does not exist, it has “[t]he burden of proving [that the] record does not exist.” Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa.Cmwlth.2011). “[A]n agency may satisfy its burden of proof that it does not possess a requested record with either an unsworn attestation by the person who searched for the record or a sworn affidavit of nonexistence of the record.” Id.; see

Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa.Cmwlth.2010) (finding that an unsworn attestation and a notarized affidavit swearing to the non-existence of a record were enough to satisfy the department's burden of demonstrating the record's non-existence). In the absence of any competent evidence that the agency acted in bad faith or that the agency records exist, “the averments in [DEP's] affidavits should be accepted as true.” McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 382–83 (Pa.Cmwlth.2014).

Here, SB requested “[a]ll records associated with [the] August 30, 2010[NOV] for [the] Yeager Impoundment.... This request seeks all records, including but not limited to records associated with any investigations, complaints and the resolution of the [NOV].” (RTKL Request Form at 1.)

Initially, SB asserts that the NOV exists based upon DEP entries on its eFACTS system. Our review of the record, however, reveals no credited testimony or evidence that would support such a finding. The record reveals that a representative from Range Resources self-reported a violation at the Yeager Impoundment on August 24, 2010, and, as a result, Miller entered the violation details into the eFACTS system. Miller attested that he did not issue an NOV and there is no indication on the eFACTS system that an NOV was issued. Further, two other attestations submitted into...