Wednesday, June 12, 2013

Open Records - DPW

Barnett v. DPW -  Cmwlth. Court – June 12, 2013


Requester filed the Request with DPW seeking access to information about data on phone calls to the County Assistance Office(s), Statewide Customer Service Center(s) or the Philadelphia Customer Service Center, including but not limited to, caller wait times, calls answered, calls unanswered due to system overflow, calls not able to be placed into a queue, and calls rerouted…and similar information.

Our Supreme Court recently reaffirmed its holding “that the objective of the RTKL ‘is to empower citizens by affording them access to information concerning the activities of their government.’” Levy v. Senate of Pennsylvania, ___ Pa. ___, ___, ___ A.3d ___, ___ (No. 44 MAP 2012, filed April 24, 2013), slip op. at 32.  (quoting SWB Yankees LLC v. Wintermantel, ___ Pa. ___, ___, 45 A.3d 1029, 1042 (2012)). Our Supreme Court has also held that the significant changes to the RTKL enacted in 2008 “demonstrate a legislative purpose of expanded government transparency through public access to documents.” Id. at ___, ___ A.3d at ___, slip op. at 33. “[C]ourts should liberally construe the RTKL to effectuate its purpose of promoting ‘access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.’” Id. (quoting Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa. Cmwlth. 2011) (citation omitted)).

Among the sections of the RTKL that have been cited “as supporting a legislative intent for broader public access” is the section at issue in this matter, Section 1101(a), 65 P.S. § 67.1101(a), which authorizes a requester to appeal an agency denial to the OOR.  Section 1101(a)(1) provides that, if “a written request for access to a record is denied or deemed denied, the requester may file an appeal with the [OOR] . . . within 15 business days.” 65 P.S. § 67.1101(a)(1). “The appeal shall state the grounds upon which the requester asserts that the record is a public record . . . and shall address any grounds stated by the agency for . . . denying the request.” Id. (emphasis added).

In Department of Corrections, this Court examined “the clear and unambiguous language chosen by the General Assembly in Section 1101(a) of the RTKL” and held that it is “statutorily required that a requester specify in [an] appeal to [OOR] the particular defects in an agency’s stated reasons for denying a RTKL request.”6 Department of Corrections, 18 A.3d at 434. We held further that “[b]y concluding that this requirement is mandatory we are not requiring a requester to prove anything; the provision merely places a burden on a requester to identify flaws in an agency’s decision denying a request.” Id. (emphasis in original).

With the foregoing in mind, we now turn to the issue of whether Requester’s written OOR Appeal in this case is deficient for failing to address grounds stated by DPW for denying Requester’s RTKL Request.  The OOR erred by summarily dismissing Requester’s OOR Appeal on the basis that it did not address DPW’s reasons for denying the Request. As shown by Requester’s OOR Appeal does address the reasons given by DPW in denying his RTKL Request, and includes his arguments as to why those reasons are flawed.. . . Although Requester does not discuss any specific subsections of Section 708(b) of the RTKL, this does not render the OOR Appeal deficient. Requester’s statement in his OOR Appeal that the records are public records that “do not qualify for any exemptions under [S]ection 708, are not protected by privilege, and are not exempted under any Federal or State law or regulation,” is sufficient under these circumstances. (OOR Appeal at 2, R.R. at 2a.)

Requester also adequately challenges DPW’s conclusion that the information sought does not fall within the meaning of the RTKL’s definition of “aggregated data.” Requester alleges that the “ticket reports” he seeks are a compilation of information contained in the “trouble tickets,” and that the records are not client-specific but, instead, constitute “aggregated data.”  To the extent Requester is correct, the omission of any discussion of the legal authorities set forth in Attachment A to DPW’s Response, which describe exemptions for individuals’ information, rather than aggregated data, does not render his OOR Appeal deficient.

Finally, Requester’s failure to address DPW’s “Omnibus Responses” or the various state and federal statutes or regulations listed in DPW’s Response to paragraph 1 of the Request does not render Requester’s OOR Appeal deficient. DPW included the “Omnibus Responses” and these other legal authorities because this Court “has held that, if an agency fails to raise a defense in its final response letter, the agency has waived its opportunity to do so and is barred from raising a new defense at the time of an appeal.”  As DPW only included its “Omnibus Responses” and these additional legal authorities as a precaution against waiver, we will not deem Requester’s OOR Appeal deficient for not addressing these precautionary grounds for denial. To hold otherwise would thwart the mandate that we are to liberally construe the RTKL in order to effectuate its purpose. Levy, ___ at ___, ___ A.3d at ___, slip op. at 33.

Accordingly, we vacate the OOR’s August 7, 2012 Final Determination and remand this matter to the OOR to consider Requester’s appeal and DPW’s reasons for denying Requester’s RTKL Request.

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