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Home My WebLink About11-9255f' ft JACQUELINE M. VERNEY ESQ. SUPREME COURT ID NO. 23167 44 SOUTH HANOVER ST CARLISLE PA 17013 717-243-9190 ATTORNEY FOR PETITIONER CHARLES BRESLIN, Petitioner V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents 9 : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA No. 2011-#53--CIVIL ACTION-LAW APPEAL FROM DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN :RECORDS RULE TO SHOW CAUSE AND NOW, this A, day of 3?e co-? , 2011, upon consideration of the foregoing petition, it is hereby ordered that: 1. A rule is issued upon the respondents to show cause why the Petitioner is not entitled to the relief requested; 2. The Respondents shall file an answer to the petition within Z o days of this date; 3. The Petition shall be decided under Pa.R.C.P. No. 206.7; 4. Depositions shall be completed within (.0 days of this date; 5. Argument shall be held on Mta,M 2 , "12 - in Courtroom _ of the Cumberland County Courthouse; aa4 a,#- 1/:** 4 -M- 6. Notice of the entry of this Order shall be provided to all parties by the Petitioner. cc Jacqueline M. Verney, Esquire ? Dickinson Township t? PA Office of Open Records eo fl es ? a),,ol 1a10-Z0111 )e'a BY TH RT: n r M. ? r7l C, T? p _-? r? C7 -,' Susan J. Smith, Esq. Pa.I.D. No. 62531 The Law Office of Susan J. Smith 3009 Market Street Camp Hill, PA 17011 P: 717-763-1650 F: 717-763.1651 Solicitor for Dickinson Township CHARLES BRESLIN, Petitioner V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents FILED-UFFIGE "IF THE. PRQTHONOT -WY 2012 JAN -5 PM 2' 21 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL NO. 2011-9255 RESPONDENT DICKINSON TOWNSHIP'S PETITION TO AMEND RULE TO SHOW CAUSE AND NOW comes Defendant, Dickinson Township, by and through its Solicitor, and petitions the Court to amend the Rule to Show Cause issued in this matter by the Court on December 16, 2011. Petitioner specifically petitions that the Court amend the Rule to Show Cause with respect to depositions. 1. Township incorporates by reference its Answer to the Petition for Review filed concurrently with this Petition to Amend. 2. Petitioner made a request under Pennsylvania's Right to Know Law for the following record: [A] copy of an email addressing township business currently in the possession of former Township Manager Robert Livingston, dated February 9, 2006, Subject: "Sunshine." 3. The Township searched for the record among the paper and electronic records in its possession and advised the Petitioner that it found no record responsive to the request. 4. In consideration of the Petitioner's appeal to the Open Records Office, the Office of Open Records issued a Final Determination. The Office of Open Records opined that: There is no provision in the RTKL that mandates an agency inquire of former employees or former officials as to whether they possess records and the OOR does not interpret Silberstein to require such an inquiry. The Office of Open Records concluded: The Township is required to search for the record by inquiring with any alleged recipients who are current employees or officials and if the record is in the possession of any of those individuals, provide the record to the Requester within thirty (30) days. 5. In compliance with the Final Determination, the Township timely inquired of current employees and officials. Upon being informed by "current employees and officials" that none possessed such a record, the Township so advised the Petitioner. 6. Petitioner may only appeal from the Final Determination to the extent he is aggrieved by it. SWB Yankees LLC v. Wintermantel et al, 999 A.2d 672 (Pa. Cmwlth. 2010); Hertzberg v. Zoning Bd. Of Adjustment of the City of Pittsburgh, 721.A.2d 43, 46 n.6 (Pa. Cmwlth. 1998) ("The core concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge.") 7. Petitioner is aggrieved by the Final Determination and derives standing to appeal only from the Office of Open Records conclusion as a matter of law that the Township is not required to inquire of former officials and employees whether they possess a record. Petitioner identifies this issue in his Petition for Appeal: This is an Appeal from the determination of OOR at Docket No. AP 2011-1369 in that it did not include an order to the township to search for the record by inquiring of former employees if they possessed the record. 8. The issue presented to the Court for review on appeal is a question of law - and one of first impression - as to the scope of search required of an agency by Pennsylvania's Right to Know Law. As a question of law does not involve a question of fact, that portion of the Rule to Show Cause providing for depositions is inappropriate. WHEREFORE, the Township respectfully requests that the Court amend the Rule to Show Cause to omit depositions. A proposed Order is attached for the Court's consideration. Respectfully Submitted, THE LAW OFFICE OF SUSAN J. SMITH Date: January 5, 2012 ,2,a,- yAllk-j Sxfsan J. ,jAith, Esq. Pa.I.D. N6. 62531 3009 Market Street Camp Hill, PA 17011 Solicitor for Dickinson Township CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by ls'-Class Mail: Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for Charles Breslin Date: January 5, 2012 Sus J. Smith Susan J. Smith, Esq. Pa.I.D. No. 62531 The Law Office of Susan J. Smith 3009 Market Street Camp Hill, PA 17011 P: 717-763-1650 F: 717-763.1651 Solicitor for Dickinson Township CHARLES BRESLIN, V. Petitioner DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents FILED-0FROE O THE PR011"H0?" TARY 2u12 JAN -5 PM 2.2 9" CUMBERLAND COE NIT PENNSMANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA : CIVIL NO. 2011-9255 RESPONDENT DICKINSON TOWNSHIP'S ANSWER TO PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS AND NOW comes Defendant, Dickinson Township, by and through its Solicitor, and files this Answer to Petition for Review.] By separate and concurrent filing, Dickinson Township petitions the Court to amend the procedural order on the Rule to Show Cause regarding depositions. The issue presented on appeal (as stated in Paragraph 5 of the Petition for Review) is a matter of law, not fact. By separate and concurrent filing, Dickinson Township motions the Court to strike material in the Petition for Review that is not of record. 1 Petitioner is a Plaintiff in the matter of Charles Breslin, et al. v. Dickinson Township, et al., Case No. 1:09-cv-01396 pending before the United States District Court for the Middle District of Pennsylvania. On December 23, 2011, in a Brief in Support of Their Motion to Dismiss the Report and Recommendation of the Magistrate Judge, Petitioner represented to the Federal Court of having "received information Judge Hess has held solidly for us." A copy of the relevant portion of that Brief is attached and marked as EXHIBIT 1. While Township is aware of this representation, Township has no reason to believe that the Court has prejudged this matter. Admitted. 2. Admitted. 3. Admitted to the extent of the authority by which the OOR is organized and its place of business. It is specifically denied that the Office of Open Records is a proper Respondent. East Stroudsburg University Foundation v. Office of Open Records, et al., 995 A.2d 496, 507 (Pa. Cmwlth. 2010) ("Nothing in Section 1310 of the Right-to-Know Law [citation omitted] which sets forth the duties of the OOR, gives it party standing to defend its decisions an participate as a party in an appeal of one of its decision."). 4. Admitted to the extent that these documents are attached to the Petition for Review. It is specifically denied that Exhibits H and J are of record in the proceedings on the Petitioner's RTK Request or relevant to the issue of law raised in the Petition for Review. 5. Admitted. The Petitioner is aggrieved by the Final Determination and has standing to appeal only from the single issue presented by Petitioner in his Petition for Review, that the Determination in question "did not include an order to the Township to search for the record by inquiring of former employees if they possessed the record" (emphasis in original). The issue presented on appeal is a question of law. 6. Admitted in part, denied in part. For purposes of clarity, the request was for the following record: [A] copy of an email addressing township business currently in the possession of former Township Manager Robert Livingston, dated 9 February, 2006, Subject: "Sunshine". 7. Admitted. 8. Admitted as to the filing of an appeal. Denied as stated as to the grounds for appeal; the appeal speaks for itself. 9. Admitted as to the OOR's invitation to the parties to supplement the record and to the submission of supplemental material by the petitioner. Denied as stated as to the supplement; the supplement speaks for itself. By way of further answer, Petitioner's appeal to the Office of Open Records and supplemental response on appeal (Petition for Review, Exhibits C and E) expanded upon the record sought in the initial RTK Request, by identifying the sender and recipients of the communication and further describing its content. Section 703 of the RTKL requires that a request "should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested." Pennsylvania State Police v. Office of Open Records, 9954 A.2d 515, 516 (Pa. Cmwlth. 2010) (Commonwealth Court held that the General Assembly did not provide for a request to be refashioned on appeal); Susser v. Riverview School District, OOR Docket No. AP 2010-1213 ("The Requester cannot narrow her Request on appeal by narrowing the subject-matter ...."); Evans v. Souderton Area School District, OOR Docket AP 2011-1186 ("[R]equester may not modify or expand upon a request on appeal."); Staley v. Pittsburgh Water and Sewer Authority, OOR Docket No. AP 2010-0275 ("A requester may not modify the original request as the denial, if any, is premised upon the original request as written."). As addressed in footnote 2 of this Answer, this communication (as described by Petitioner in his Appeal to the Office of Open Records and supplemental response on appeal to the Office of Open Records) bears all the hallmarks of an attorney-client privileged communication. 10. Denied as stated as to the "reiterate [ion] of the argument." The Petitioner's supplement speaks for itself. 11. Admitted in part, denied in part. It is admitted that the Township submitted a supplemental response. Petitioner's restatement of the Township's response is specifically denied; the Township's Supplemental Response speaks for itself. By way of further answer, an agency must raise all objections to access to a record when the request is made. Pennsylvania State Police v. Office of Open Records, 995 A.2d 515,517 (Pa. Cmwlth. 2010) ("[A]gencies as a normal practice should raise all objections to access when the request is made if the reason for denying access can be reasonably discerned when the request is made" as an agency is not permitted to alter its reason for denying a request on appeal to the Office of Open Records.) 12. Admitted in part, denied in part. It is admitted that the OOR issued a Final Determination. Petitioner's restatement of the OOR's Final Determination is specifically denied; the OOR's Final Determination and the RTKL speak for themselves. 13. Admitted in part, denied in part. It is admitted that the OOR issued a Final Determination. Petitioner's restatement of the OOR's Final Determination is specifically denied; the OOR's Final Determination and the RTKL speak for themselves. 14. Admitted in part, denied in part. It is admitted that the OOR issued a Final Determination. Petitioner's restatement of the OOR's Final Determination is specifically denied; the OOR's Final Determination speaks for itself. 15. Admitted in part, denied in part. It is admitted that the OOR issued a Final Determination. Petitioner's restatements of argument made in his supplement on appeal, the OOR's Final Determination, and the Township's supplement on appeal are specifically denied; the Petitioner's supplement, the OOR's Final Determination, and the Township's Supplemental Response speak for themselves. The remainder of this paragraph is legal argument to which no further response is required. By way of further argument, Township specifically denies that, at any time, it asserted that the record requested was not a "public record." Office of the Governor v. Bari, 20 A.3d 634, 640 (Pa. 2011) ("The burden of proving that a requested piece of information is a `public record' lies with the requestor.") Rather, the Petitioner's RTK request provided no information as to the sender or recipient of the email so as to permit the Township to reach a conclusion as to whether the record requested was a "public record." 16. Denied as stated. The OOR's Final Determination speaks for itself. 17. Denied as stated. The OOR's Final Determination speaks for itself. 18. Denied as stated. The Petitioner's request and the Township's response speak for themselves. 19. Denied as stated. The OOR's Final Determination speaks for itself. By way of further answer, the OOR determined, as a matter of law, that: There is no provision in the RTKL that mandates an agency inquire of former employees or former officials as to whether they possess records and the OOR does not interpret Silberstein to require such an inquiry. 20. Denied as stated. The OOR's Final Determination speaks for itself. By way of further answer, the Final Determination directed the Township to "search for the record by inquiring with any alleged recipients who are current employees or officials and if the record is in the possession of any of those individuals, provide the record to the Requester within thirty (30) days." The Petitioner's RTK Request did not identify either the sender or the recipient(s) of the email. Section 703 of the RTKL requires that a request "should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested." An RTK request may not be refashioned on appeal. In Pennsylvania State Police v. Office of Open Records, 9954 A.2d 515, 516 (Pa. Cmwlth. 2010), the Commonwealth Court on review of the process laid out in the RTKL for request, response and appeal held that the General Assembly did not provide for a request to be refashioned on appeal. Susser v. Riverview School District, OOR Docket No. AP 2010-1213 ("The Requester cannot narrow her Request on appeal by narrowing the subject-matter ...."); Evans v. Souderton Area School District, OOR Docket AP 2011-1186 ("[R]equester may not modify or expand upon a request on appeal."); Staley v. Pittsburgh Water and Sewer Authority, OOR Docket No. AP 2010-0275 ("A requester may not modify the original request as the denial, if any, is premised upon the original request as written."). Upon issuance of the Final Determination the Township timely inquired of current officials and employees whether they possessed an "email addressing township business currently in the possession of former Township Manager Robert Livingston, dated 9 February, 2006, Subject: "Sunshine". By written response issued to Petitioner on December 14, 2011, the Township advised that no current official or employee possessed such a record. A copy of the response is attached hereto and marked as EXHIBIT 2. 21. This paragraph sets forth legal argument to which no response is required. 22. This paragraph sets forth legal argument to which no response is required. By way of further answer, the Petitioner relies upon Section 507(c) of the RTKL - titled "Agency Discretion" - as legal support for its argument that the OOR erred in not mandating that the Township to search for records from former officials and employees. Enabling authority to exercise discretion is not and cannot be interpreted, as a matter of statutory construction, as a mandatory duty. Petitioner's reliance upon Section 507(d) relating to a "party with whom the agency has contracted to perform a governmental function" is misplaced as there has been no claim made that a contractor possesses the requested record. 23. Admitted to the extent that the RTKL requires a good faith effort in searching for records. The remainder of the paragraph is legal argument to which no response is required. By way of further answer, this argument is irrelevant to the question of law before the Court on appeal, that is, whether the OOR erred in concluding that the RTKL does not required a search for records by former officials and employees. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 23 in its entirety. 24. The paragraph is legal argument to which no response is required. By way of further answer, it is categorically denied that there has been any suggestion of, let alone actual occurrence of, the Township willfully acting in "bad faith." While the Township preserved the issue that the request was facially insufficient in its initial response to the RTK Request, East Stroudsburg University Foundation (An agency responding to a request may not inject a new grounds for its initial response when defending its response on appeal), the Township nonetheless, in an effort to determine the existence of the record sought, considered an earlier request made by a different individual and further performed a search for the record. Contrary to Petitioner's claim, such conduct by the Township particularly evidences an exercise of good faith. By way of further answer, Petitioner's argument is irrelevant to the question of law before the Court on appeal, that is, whether the OOR erred in concluding that the RTKL does not required a search for records by former officials and employees. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 24 in its entirety. 25. The paragraph is legal argument to which no response is required. By way of further answer, Petitioner's argument is irrelevant to the question of law before the Court on appeal, that is, whether the OOR erred in concluding that the RTKL does not required a search for records by former officials and employees. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 25 in its entirety. 26. Section 1304 of the RTKL speaks for itself. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 26 in its entirety. 27. Section 1305 of the RTKL speaks for itself. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 27 in its entirety. 28. Denied as stated. By way of further answer, as Petitioner admits the Solicitor's comment in another RTK matter reflected that individual requester's "own words."2 Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike Paragraph 28 in its entirety. 29. This paragraph is legal argument and plea for relief to which no response is required. Incorporated by reference in its entirety is Township's concurrently filed Motion to Strike. The single issue properly presented on appeal is whether the OOR erred as a matter of law in concluding that the RTKL does not require an agency to inquire of former employees and officials whether they possess a record. Date: January 5, 2012 Respectfully Submitted, THE LAW OFFICE OF SUSAN J. SMITH J. Pa.I.D. No./62531 3009 Market Street Camp Hill, PA 17011 Solicitor for Dickinson Township 2 Petitioner is a Plaintiff in the matter of Charles Breslin et al. v. Dickinson Township et al., Docket No. 1:090cv- 01396 pending before the United States District Court for the Middle District of Pennsylvania. During discovery in the federal case, Petitioner produced a copy of the electronic communication attached hereto and marked as EXHIBIT 3. This communication between Robert Livingston and Plaintiff reveals a portion of the communication of then-Township Solicitor Edward Schorpp to his municipal client to which Petitioner now seeks access to through his RTK Request. On December 23, 2011, Plaintiff submitted a Brief in Support of Their Motion to Dismiss the Report and Recommendation of the Magistrate Judge in the above-referenced case, in which Petitioner admitted to having acquired information from this same communication. The relevant portion of that Brief is attached and marked as EXHIBIT 4. Of note, on August 1, 2011, the federal court entered an Order on Township's request for a Protective Order, which recognized that the Township had not authorized Robert Llvingston to waive attorney- client privilege regarding information obtained during his employment with the Township. The Order is attached and marked as EXHIBIT 5. Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHARLES BRESLIN ET AL. Plaintiffs VS. . DICKINSON TOWNSHIP ET AL. Defendants NO. 1:09-cv-01396 Judge Lawrence Stengel Mag. Martin Carlson JURY TRIAL DEMANDED PLAINTIFFS' BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE 1. Background On March 12, 1993, James R Ross, Esquire filed a reply brief in the case of United States of America versus Thomas Henry and Mowry Mike (Criminal Division No. I:CR-92-308-02). The details of this action are unneeded here, but certain salient facts need to be stated. James Ross was a former U.S. attorney. His reputation as a professional was, and is, as impeccable as his character. Mowry Mike, an Aliquippa, Pennsylvania businessman, was Don Bailey's executive deputy when Bailey served as Auditor General of Pennsylvania. Thomas Henry, represented by Carlson's close friend, Paul Killian (now Chief Counsel for Pennsylvania's Office of Disciplinary Counsel) was a member of the Delaware River Joint Toll Bridge Commission. Mike was accused in a 23 count indictment of a number of crimes. The 1 EXHIBIT 1 Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 11 of 20 During preparation for a response to the R&R counsel asked the plaintiffs, who are extremely capable and accomplished individuals as I'm sure this court would admit, to provide a response. Upon review of the R&R the following excerpt from the plaintiffs' review, with very little editing having been done by counsel, is made a part of this argument, it being difficult to improve upon it: "Regarding Judge Carlson's "Report and Recommendations" of December 5, 2011. As we read the Judge's Report, he is guilty of making unsubstantiated assertions, allowing his animus and personal bias against you to trump objectivity and balance. Some of our comments below are "emotional" in nature and may be of no use - but perhaps they might serve as a "trigger" for a more reasoned legal argument. 1. Judge Kane dismissed a motion that Plaintiff Charles Breslin filed asking her to recuse herself because of a possible perceived personal bias or prejudice concerning a party. She dismissed Breslin's claim as "fanciful and baseless", yet Dr. Robert Thompson's deposition taken in this litigation validated Breslin's recollections at least as to what he had been told about contacting the judge. We did not delay we did what we were morally required to do. 2. More to the point, the court has failed at case management. This litigation has evolved in fits and starts for two and one half years with attorneys for both sides doing their best to get their way as is to be expected That this has gone on for such a long time is an indication that the court has simply allowed it to go on. Rather than calling both parties together for oral arguments as Judge Kane did in the first instance to allow each side to argue their case before the bench, Judge Carlson has made no effort to inform himself on the Supplemental. One would think that before a judge would simply recommend not allowing a supplemental filing; he would make some effort to inform himself of the veracity of the claims in that filing and to give 11 Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 14 of 20 eye to set things up against the plaintiffs. Any fair reading of the testimony would recognize what he and his assistant were doing. It is part of the process. Judge Carlson's claim that plaintiffs impeded an "orderly and fair administration of justice" conveniently overlooks far too many facts in this proceeding, is not only a gross exaggeration, but is prejudicial and inaccurate. 9. Defendants complain that plaintiffs provided too many records. This seems absolutely absurd based upon what you've told us about the number of documents in many cases. We wanted to err on behalf of being fair and open; yet, we have not received a single record from the defendants per our discovery requests aside from minutes of township meetings which we already had. One of the lawyers for the defendants went so far as to claim that his client did not provide records because he did not have any to provide at the time of the request. We knew at the time he made that assertion that the assertion was false because his client had turned records over to the township well after the original request. One more lie told to this court and to us. The township has refused to provide the records. 10. We have been forced to use the RTK law time and time again to acquire public records and, to date, the township has stonewalled several requests for emails directly relevant to this litigation, and emails which pattern analysis suggests contain guidance and recommendations for concealing information of wrongdoing from the public. That is becoming increasingly clear now as we have recently acquired information on an email whereby the solicitor offered to resign. This is the one where Morgenstern falsely claimed attorney-client privilege then turns around and just as falsely claims that poor Livingston stole Township documents. How ridiculous. He was the recipient of an e-mail. Why should claims related to wrong-doing that occurred several years ago be excluded from consideration when we have only recently acquired the factual evidence to confirm and validate those claims? Where is the accountability if it is not in the courts? We note with some interest that Judge Carlson did not cite any statute of limitations. (Don -By the way-we filed a RTK appeal last Wed in the Court of Common Pleas. The state's Office of Open Records has already replied that it will not respond or make an appearance in the case.) However, as you've just received information Judge Hess has held solidly for us. What would the 14 Dickinson Township 0 219 Mountain View Road 0 Mount Holly Springs, PA 17065 Phone: (717) 486-7424 0 Fax: (717) 486-8412 www.dickinsontownshii).org December 14, 2011 Mr. Charles Breslin 11 Minich Drive Carlisle, Pa 17015 RE: Right to Know Request dated September 29, 2011 Dear Mr. Breslin, In compliance with the final determination from the Office of Open Records I have polled current employees and officials regarding the referenced request. No responsive records exist. Attached is an affidavit in support of this position. Respectfully, O Laura Portillo CC p Dickinson Township Open Records Officer 219 Mountain View Road, Mt. Holly Springs, Pa 17065 717-486-7424 EXHIBIT 2 AFFIDAVIT i, affirm that I have done a reasonable search of my personal paper and electronic records for records responsive to the Request and found no records. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unworn falsification to authorities. Date: /00? 2011 COVIly Case 1:09-cv-01396-LFS -MCC Document 223-3 Filed 10/26/11 Page 8 of 49 Phil Thonmon Fes: Phil Thompson [pthompsonCpa.net] Sent: Thursday, September 29, 201111:65 AM To: 'Charles Breslin' Subject: FW: RTK request From: RolpattCat ol.com milt ;Ro att&ao{,com,,, Sent: Sunday, August 14, 20112: 11 PM TO: fM-Wi2son_?apa. v &ddect: Re: RTK request The communication was from Ed to Ray & Dan. He ofhred his resignation. A part of the e-mail is: Dan & Ray, Although i continue to believe that the unique circumstances of Bert's situation, the necessity to not give hers further basis that we are causing her emotional distress and the fact that Tom had no opportunity to vote on Durant's services presented a catch-22, made it inappropriate to publicly identify the personnel position discussed in exec session. Tom was not involved in the decision to obtain services from Durant. This was done by Ray, Dan & Ed with Ed being the contact to Durrant and this was done while Ray was an elected but had not assumed his office. This only confirms that Dan knew about Durant and that he and Ray intsntionelly kept Tom Patterson in the dark while feeding him only selected information. They consistently violated the sunshine law. I believe if you need this you can submit the request and Include my name in the list to be asked for It. Bob Bob Livingston 308 N. Dickinson School Road Carlisle, PA 17015 roloattcdaol.com EXHIBIT 3 Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHARLES BRESLIN ET AL. Plaintiffs VS. DICKINSON TOWNSHIP ET AL. Defendants NO. 1:09-cv-01396 Judge Lawrence Stengel Mag. Martin Carlson JURY TRIAL DEMANDED PLAINTIFFS' BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE 1. Background On March 12, 1993, James R Ross, Esquire filed a reply brief in the case of United States of America versus Thomas Henry and Mowry Mike (Criminal Division No. 1:CR-92-308-02). The details of this action are unneeded here, but certain salient facts need to be stated. James Ross was a former U.S. attorney. His reputation as a professional was, and is, as impeccable as his character. Mowry Mike, an Aliquippa, Pennsylvania businessman, was Don Bailey's executive deputy when Bailey served as Auditor General of Pennsylvania. Thomas Henry, represented by Carlson's close friend, Paul Killian (now Chief Counsel for Pennsylvania's Office of Disciplinary Counsel) was a member of the Delaware River Joint Toll Bridge Commission. Mike was accused in a 23 count indictment of a number of crimes. The 1 EXHIBIT 4 Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 11 of 20 During preparation for a response to the R&R counsel asked the plaintiffs, who are extremely capable and accomplished individuals as I'm sure this court would admit, to provide a response. Upon review of the R&R the following excerpt from the plaintiffs' review, with very little editing having been done by counsel, is made a part of this argument, it being difficult to improve upon it: "Regarding Judge Carlson's "Report and Recommendations" of December 5, 2011. As we read the Judge's Report, he is guilty of making unsubstantiated assertions, allowing his animus and personal bias against you to trump objectivity and balance. Some of our comments below are "emotional" in nature and may be of no use - but perhaps they might serve as a "trigger" for a more reasoned legal argument. 1. Judge Kane dismissed a motion that Plaintiff Charles Breslin filed asking her to recuse herself because of a possible perceived personal bias or prejudice concerning a party. She dismissed Breslin's claim as "fanciful and baseless", yet Dr. Robert Thompson's deposition taken in this litigation validated Breslin's recollections at least as to what he had been told about contacting the judge. We did not delay we did what we were morally required to do. 2. More to the point, the court has failed at case management. This litigation has evolved in fits and starts for two and one half years with attorneys for both sides doing their best to get their way as is to be expected That this has gone on for such a long time is an indication that the court has simply allowed it to go on. Rather than calling both parties together for oral arguments as Judge Kane did in the first instance to allow each side to argue their case before the bench, Judge Carlson has made no effort to inform himself on the Supplemental. One would think that before a judge would simply recommend not allowing a supplemental filing; he would make some effort to inform himself of the veracity of the claims in that filing and to give 11 Case 1:09-cv-01396-LFS Document 249 Filed 12/23/11 Page 14 of 20 eye to set things up against the plaintiffs. Any fair reading of the testimony would recognize what he and his assistant were doing. It is part of the process. Judge Carlson's claim that plaintiffs impeded an "orderly and fair administration of justice" conveniently overlooks far too many facts in this proceeding, is not only a gross exaggeration, but is prejudicial and inaccurate. 9. Defendants complain that plaintiffs provided too many records. This seems absolutely absurd based upon what you've told us about the number of documents in many cases. We wanted to err on behalf of being fair and open; yet, we have not received a single record from the defendants per our discovery requests aside from minutes of township meetings which we already had. One of the lawyers for the defendants went so far as to claim that his client did not provide records because he did not have any to provide at the time of the request. We knew at the time he made that assertion that the assertion was false because his client had turned records over to the township well after the original request. One more lie told to this court and to us. The township has refused to provide the records. 10. We have been forced to use the RTK law time and time again to acquire public records and, to date, the township has stonewalled several requests for emails directly relevant to this litigation, and emails which pattern analysis suggests contain guidance and recommendations for concealing information of wrongdoing from the public. That is becoming increasingly clear now as we have recently acquired information on an email whereby the solicitor offered to resign. This is the one where Morgenstern falsely claimed attorney-client privilege then turns around and just as falsely claims that poor Livingston stole Township documents. How ridiculous. He was the recipient of an e-mail. Why should claims related to wrong-doing that occurred several years ago be excluded from consideration when we have only recently acquired the factual evidence to confirm and validate those claims? Where is the accountability if it is not in the courts? We note with some interest that Judge Carlson did not cite any statute of limitations. (Don -By the way-we filed a RTK appeal last Wed in the Court of Common Pleas. The state's Office of Open Records has already replied that it will not respond or make an appearance in the case.) However, as you've just received information Judge Hess has held solidly for us. What would the 14 Case 1:09-cv-01396-LFS Document 185 Filed 08/01/11 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA CHARLES BRESLIN, et al., Plaintiffs V. DICKINSON TOWNSHIP, et al., Defendants Civil No. 1:09-CV-1396 (Judge Stengel) (Magistrate Judge Carlson) ORDER THE BACKGROUND OF THIS ORDER IS AS FOLLOWS: This case is a civil rights action brought by the plaintiffs against defendants, various local township officials, alleging constitutional First Amendment and First Amendment-retaliation claims. Following contentious discovery proceedings, this case was referred to the undersigned on January 25, 2011, for the purpose of overseeing pre-trial discovery.(Doc. 77.) Presently before the Court is a motion for protective order which requests that we order a deposition witness, Robert Livingston, to completely refrain from testifying regarding events that transpired during township executive sessions, on attorney-client privilege grounds. (Doc. 182.) With respect to this motion IT IS ORDERED as follows: 1. To the extent that the defendants seek to preclude any questioning on this topic, the motion is DENIED. EXHIBIT 5 Case 1:09-cv-01396-LFS Document 185 Filed 08/01/11 Page 2 of 2 2. Instead, the defendants are ORDERED to invoke the attorney-client privilege, as appropriate, with respect to specific questions propounded by the plaintiffs' counsel. The witness is instructed to refrain from answering such questions if an attorney-client privilege objection is raised. To the extent that such issues arise the plaintiff may then file a fully-documented motion to compel, on or before August 15, 2011. So ordered this 1 st day of August, 2011. /s/ Martin C. Carlson Martin C. Carlson United States Magistrate Judge 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by 1st-Class Mail: Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for Charles Breslin Date: January 5, 2012 I Susan J. Smith, Esq. Pa.I.D. No. 62531 The Law Office of Susan J. Smith 3009 Market Street Camp Hill, PA 17011 P:717-763-1650 F: 717-763.1651 Solicitor for Dickinson Township F ILEU-OFFICE fir THE PROTHONOTARY 2012 JAN -5 PM 2: 28 CUMBERLAND COUNTY PENNSYLVANIA CHARLES BRESLIN, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, : PENNSYLVANIA V. DICKINSON TOWNSHIP, and CIVIL NO. 2011-9255 PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents RESPONDENT DICKINSON TOWNSHIP'S MOTION TO STRIKE PORTIONS OF PETITION FOR REVIEW AND NOW comes Defendant, Dickinson Township, by and through its Solicitor, and submits this Motion to Strike Portions of Petitioner's Petition for Review. By concurrent filing, the Township has submitted its Answer to the Petition for Review. The Township's Answer is incorporated herein by reference. 1. Petitioner made a request to the Township under Pennsylvania's Right to Know Law for the following record: [A] copy of an email addressing township business currently in the possession of former Township Manager Robert Livingston, dated February 9, 2006, Subject: "Sunshine." (RTK Request). Petition for Review, Exhibit A. 2. The Township searched for the record among the paper and electronic records in its possession and advised the Petitioner that it found no record responsive to Petitioner's RTK Request. Petition for Review, Exhibit B. 3. In consideration of the Petitioner's appeal from the Township's response, the Office of Open Records issued a Final Determination. The Office of Open Records opined that: There is no provision in the RTKL that mandates an agency inquire of former employees or former officials as to whether they possess records and the OOR does not interpret Silberstein [In re: Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011)] to require such an inquiry. The Office of Open Records concluded: The Township is required to search for the record by inquiring with any alleged recipients who are current employees or officials and if the record is in the possession of any of those individuals, provide the record to the Requester within thirty (30) days. Petition for Review, Exhibit G. 4. The Petitioner's RTK Request identified neither the sender nor the recipients to the e-mail communication. A determination whether the sender and recipients of the communication were public officials could not be made from the face of the RTK Request. 5. The claimed identity of the sender and recipients was stated, for the first time, in Petitioner's appeal to the Office of Open Records and supplemental response submitted in that appeal. Petition for Review, Exhibits C and E. In compliance with the Final Determination, the Township timely inquired of its current employees and officials whether they possessed the record. Upon being informed by current employees and officials that none possessed the record, the Township so advised the Petitioner. 5. Petitioner may appeal from the Final Determination only to the extent he is aggrieved by it. SWB Yankees LLC v. Wintermantel et al, 999 A.2d 672 (Pa. Cmwlth. 2010); Hertzberg v. Zoning Bd. Of Adjustment of the City of Pittsburgh, 72 LA.2d 43, 46 n.6 (Pa. Cmwlth. 1998) ("The core concept of standing is that a person who is not adversely affected in I any way by the matter he seeks to challenge is not `aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge."). 6. Petitioner is aggrieved by the Final Determination and derives standing to appeal only from the Office of Open Records' conclusion, as a matter of law, that the Township is not required to inquire of former officials and employees whether they possess a record. 7. In his Petition for Appeal, Petitioner challenges the Office of Open Record's conclusion of law, stating: This is an Appeal from the determination of OOR at Docket No. AP 2011-1369 in that it did not include an order to the township to search for the record by inquiring of former employees if they possessed the record. Petition for Appeal, ¶ 5. 7. In Paragraphs 23-27 of the Petition for Review, Petitioner asserts "bad faith" on the part of the Township for failing to inquire of former officials and employees. However, the Office of Open Records (the agency charged with the duty to administer Pennsylvania's Right to Know Law) concluded, as a matter of law, that an agency is not required to perform such inquiry under Pennsylvania's Right to Know Law. Further, the issue presented on appeal is a question of law and one of first impression before both the Office of Open Records and the courts of Pennsylvania. No matter how deep the Petitioner's disagreement with the Office of Open Records' conclusion of law, bad faith cannot attach to Township's acting within the bounds of law as then established. Accordingly, Paragraphs 23-27 should be stricken from the Petition for Review. 9. Paragraph 28 speaks to an RTK matter that is not the subject of this Petition for Appeal. Further, no appeal was timely taken from the final determination issued in that matter I and Petitioner otherwise has no standing to take an appeal on behalf of a third party. Accordingly, Paragraph 28 should be stricken from the Petition for Review. 9. Paragraph 4, Exhibits H and J are not of record in the proceedings on Petitioner's RTK Request and appeal to the Office of Open Records and relate to an RTK matter that is not the subject of this Petition for Appeal. Accordingly, Paragraph 4, Exhibits H and J should be stricken from the Petition for Review. Respectfully Submitted, THE LAW OFFICE OF SUSAN J. SMITH Date: January 5, 2012 ?? V"Al- / Kusan J. Sm' h, Esq. Pa.I.D. Ncy.2531 3009 Market Street Camp Hill, PA 17011 Solicitor for Dickinson Township CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by 1St-Class Mail: Jacqueline A Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for Charles Breslin Date: January 5, 2012 Susan J. Smith, Esq. Pa.I.D. No. 62531 'The Law Office of Susan J. Smith 3009 Market Street Camp Hill, PA 17011 P: 717-763-1650 F: 717-763.1651 Solicitor for Dickinson Township CHARLES BRESLIN, Petitioner V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents RILED-OFFICE CAF THE FP0 TH 0N0 +A ., 2012 JAN -5 PM 2: 2 7 CUMBERLAND CQUI 1 Y PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL NO. 2011-9255 ENTRY OF APPEARANCE Please enter my appearance on behalf of Respondent, Dickinson Township in the above- captioned matter. Notices may be sent to me at the address listed herein. Date: January j , 2012 Respectfully Submitted, THE LAW OFFICE OF SUSAN J. SMITH 1 ? - h;d 4_ ' ?- Su J. Smith, Esq. Pa.I.D. No. 42531 3009 Market Street Camp Hill, PA 17011 Solicitor for Dickinson Township CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by 1St-Class Mail: Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for Charles Breslin Date: January , 2012 Susan J. Smith, Esq. Pa.I.D. No. 62531 The Law Office of Susan J. Smith 3009 Market Street Camp Hill, PA 17011 P:717-763-1650 F: 717-763.1651 Solicitor for Dickinson Township CHARLES BRESLIN, Petitioner V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents FILED-UI=FICE OF THE PRGTHGNO T F `;, 2012 JAN 17 PM 3: 38 CUMBERLAND COUNTY PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, : PENNSYLVANIA CIVIL NO. 2011-9255 RESPONDENT DICKINSON TOWNSHIP'S AMENDED PETITION TO AMEND RULE TO SHOW CAUSE AND NOW comes Defendant, Dickinson Township, by and through its Solicitor, and petitions the Court to amend the Rule to Show Cause issued in this matter by the Court on December 16, 2011. Petitioner specifically petitions that the Court amend the Rule to Show Cause with respect to depositions. By this Amended Petition, Petitioner refers the Court to the opinion of the Commonwealth Court of Pennsylvania in Sherry v. Radnor Township School District on the question of the right to discovery on appeal from a final determination of the Office of Open Records. 1. Township incorporates by reference its Answer to the Petition for Review filed concurrently with this Petition to Amend. 2. Petitioner made a request under Pennsylvania's Right to Know Law for the following record: [A] copy of an email addressing township business currently in the possession of former Township Manager Robert Livingston, dated February 9, 2006, Subject: "Sunshine." 3. The Township searched for the record among the paper and electronic records in its possession and advised the Petitioner that it found no record responsive to the request. 4. In consideration of the Petitioner's appeal to the Open Records Office, the Office of Open Records issued a Final Determination. The Office of Open Records opined that: There is no provision in the RTKL that mandates an agency inquire of former employees or former officials as to whether they possess records and the OOR does not interpret Silberstein to require such an inquiry. The Office of Open Records concluded: The Township is required to search for the record by inquiring with any alleged recipients who are current employees or officials and if the record is in the possession of any of those individuals, provide the record to the Requester within thirty (30) days. In compliance with the Final Determination, the Township timely inquired of current employees and officials. Upon being informed by "current employees and officials" that none possessed such a record, the Township so advised the Petitioner. 6. Petitioner may only appeal from the Final Determination to the extent he is aggrieved by it. SWB Yankees LLC v. Wintermantel et al, 999 A.2d 672 (Pa. Cmwlth. 2010); Hertzberg v. Zoning Bd. Of Adjustment of the City of Pittsburgh, 721.A.2d 43, 46 n.6 (Pa. Cmwlth. 1998) ("The core concept of standing is that a person who is not adversely affected in any way by the matter he seeks to challenge is not `aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge."). 7. Petitioner is aggrieved by the Final Determination and derives standing to appeal only from the Office of Open Records conclusion as a matter of law that the Township is not required to inquire of former officials and employees whether they possess a record. Petitioner identifies this issue in his Petition for Appeal: This is an Appeal from the determination of OOR at Docket No. AP 2011-1369 in that it did not include an order to the township to search for the record by inquiring of former employees if they possessed the record. 8. The issue presented to the Court for review on appeal is a question of law - and one of first impression - as to the scope of search required of an agency by Pennsylvania's Right to Know Law. As a question of law does not involve a question of fact, that portion of the Rule to Show Cause providing for depositions is inappropriate. 9. As observed by the Commonwealth Court in Sherry v. Radnor Township School District, 20 A.3d 515, 519 (Pa. Cmwlth. 2011), "neither [Pennsylvania's Right to Know Law] nor the courts have extended a right to discovery ... to a requesting party" on appeal from a final determination of the Office of Open Records. WHEREFORE, the Township respectfully requests that the Court amend the Rule to Show Cause to omit depositions. A proposed Order is attached for the Court's consideration. Respectfully Submitted, THE LA OFFICE F SUSAN J. SMITH Date: January 17, 2012 Su J. Sm' , Esq. Pa.I.D. No 2531 3009 Market Street Camp Hill, PA 17011 Solicitor for Dickinson Township CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served on the following individual(s) on the date and by the method as indicated below: Service by 1g`-Class Mail: Jacqueline A Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 Attorney for Charles Breslin Date: January 17, 2012 ?5L Su J. Smith H a CHARLES BRESLIN, : IN THE COURT OF COMMON PLEAS Petitioner : CUMBERLAND COUNTY, : PENNSYLVANIA V. DICKINSON TOWNSHIP, and CIVIL NO. 2011-9255 PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents RULE TO SHOW CAUSE AND NOW, this 2Y • day of , 2012, upon consideration of the foregoing petition, it is hereby ORDERED that: 1. A rule is issued upon the respondents to show cause why the Petitioner is not entitled to the relief requested; 2. The Respondents shall file an answer to the petition within 20 days of this date; 3. The Petition shall be decided under Pa.R.C.P. No. 206.7; 4. Argument shall be held on March 2, 2012 in Courtroom 4 of the Cumberland County Courthouse at 11:00 am; and 5. Notice of the entry of this Order shall be provided to all parties by the Petitioner. Service List: /Jacqueline M. Verney, Esquire Susan J. Smith, Esquire Office of Open Records BY THE COURT:' Cj ??G Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner CHARLES BRESLIN, Petitioner V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2011-9255 CIVIL ACTION - LAW APPEAL FROM DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS PETITIONERS' ANSWER TO RESPONDENT DICKINSON TOWNSHIP'S MOTION TO STRIKE PORTIONS OF PETITION FOR REVIEW AND NOW, comes Petitioner, Charles Breslin, by and through his attorney, Carrucoli & Associates, and submits this Answer to Respondent Dickinson Township's Motion to Strike Portions of Petition for Review. 1. Admitted and denied. It is admitted that Petitioner made a request to the Township under Pennsylvania's Right to Know Law (hereinafter RTK). It is denied that the context of the full request is represented in Respondent's Motion to Strike. By way of further answer, Petitioner requested as follows: [A] copy of an email addressing township business currently in the possession of former Township Manager Robert Livingston, dated 9 February, 2006, Subject: "Sunshine". It is my understanding that Mr. Livingston will provide the document upon the township's request. ,! P =3, 13 P PEN }SS (RTK Request). Petition for Review, Exhibit A. Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner 2. Admitted. 3. Admitted. 4. Denied. Petitioner advised the Township of the identity of the person who currently has possession of the requested document. 5. Denied. As stated above, Petitioner advised the Township of the identity of the person who currently has possession of the requested document. By way of further answer, the Office of Open Records (hereinafter OOR) found that Petitioner's request was sufficiently specific and stated that "the totality of the circumstances evidences that the Township was able to determine the specific email requested." Office of Open Records, Final Determination. Petition for Review, Exhibit G. 6.(5). Admitted and denied. Petitioner admits that he was advised that the Township claimed they do not have the requested record. Petitioner, however, has no knowledge of the Townships specific actions regarding its search for the requested document and therefore, it is denied. 7.(5). The paragraph is a legal argument to which no response is required. 8.(6). The paragraph is a legal argument to which no response is required. 9.(7). Admitted. 10.(7). Denied. Petitioner's bad faith claim is based upon the fact that the Township's practice is to inquire of former officials and employees whether they may have documents in their possession which have been requested under the RTK process. Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner Township failed to follow its own practice in refusing to request documentation from any former officials or employees, even though the exact prior employee that was in possession of the document was identified in the Right to Know Request. 11.(8). Denied. In the Thompson matter, the Township admitted that the same document being requested now exists and was wrongfully taken from Township offices. The Townships actions in that matter are directly related to the current matter due to the fact that it is the same document being requested and the Township is now claiming it does not exist. See Petition for Review, Exhibit F. 12.(9). Denied. Exhibit H speaks clearly to the prior practice of the Township in regards to requesting documents from former officials and employees for RTK requests. Exhibit J identifies the fact that it is apparently only regarding this document that the Township is refusing to request the document from former officials and employees. 13.(10). Admitted. 14.(11). Admitted. Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner WHEREFORE, Petitioner respectfully requests this Honorable Court to deny the Townships Motion to Strike Portions of Petition for Review. Respectfully su fe M. Verney/Esq. No. 23167 // Cindy L. Villanella, Esq. Sup. Ct. No. 202325 Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner VERIFICATION I, Charles Breslin, verify that the statements made in Petitioner's Answer to Respondent Township's Motion to Strike Portions of Petition for Review are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. Cons. Stat. § 4904 relating to unsworn falsification to authorities. Date: Charles Breslin Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner CHARLES BRESLIN, Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents NO. 2011-9255 CIVIL ACTION - LAW APPEAL FROM DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS CERTIFICATE OF SERVICE I, Cindy L. Villanella, Esq., counsel for Petitioner hereby certify that a copy of Petitioner's Answer to Respondent Township's Motion to Strike Portions of Petition for Review was served upon the following by first-class mail, postage prepaid.. Susan J. Smith, Esq. 3009 Market Street Camp Hill, PA 17011 Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 875 Market Street Lemoyne, PA 17043 (717)761-1274 Attorney for Petitioner L I 1,-J P14 p: UNBER 'E19MSYLV i?-11 ih , . CHARLES BRESLIN, IN THE COURT OF COMMON PLEAS Petitioner OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents NO. 2011-9255 CIVIL ACTION - LAW APPEAL FROM DETERMINATION OF PENNSYLVANIA OFFICE OF OPEN RECORDS PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Kindly enter the appearance of Cindy L. Villanella, Esq., as attorney for the Petitioner, Charles Breslin, in the above-captioned case. ,9 it Carrucoli & Associates, P.C. 875 Market Street, Suite 100 Lemoyne, PA 17043 CHARLES BRESLIN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-9255 CIVIL DICKINSON TOWNSHIP and PENNSYLVANIA OFFICE OF APPEAL FROM DETERMINATION OF OPEN RECORDS, PENNSYLVANIA OFFICE OF OPEN RECORDS Respondents IN RE: PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS BEFORE HESS, P.J. ORDER AND NOW, this 2 9- day of March, 2012, the within Petition for Review from a Determination of the Pennsylvania Office of Open Records is DENIED and its Determination of November 15., 2011, is AFFIRMED. ? Cindy L. Villanella, Esquire For the Petitioner BY THE COURT, Kevin . Hess, P. J. i/ Susan J. Smith, Esquire For Dickinson Township Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4 Floor Harrisburg, PA 17120-0225 Co?;cS n1c? •Trd 3fr// a jog t CHARLES BRESLIN, IN THE COURT OF COMMON PLEAS OF Petitioner CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 11-9255 CIVIL DICKINSON TOWNSHIP and PENNSYLVANIA OFFICE OF APPEAL FROM DETERMINATION OF OPEN RECORDS, PENNSYLVANIA OFFICE OF OPEN RECORDS Respondents IN RE: PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS BEFORE HESS, P.J. OPINION AND ORDER Before the Court is a petition seeking review of the action of the Pennsylvania Office of Open Records which granted the appeal of the original requester but, in so doing, sustained a position which had been taken by the local agency that it had no obligation to seek records from former employees. The factual background of this case is essentially undisputed. On September 29, 2011, Charles Breslin (the "Requester"), submitted a request (the "Request") to Dickinson Township seeking an e-mail pursuant to the Right-To-Know Law, 65 P. S. § 6101 et seq. Specifically, the request sought: A copy of an e-mail addressing township business currently in the possession of former Township Manager Robert Livingston, dated February 9, 2006, subject: "Sunshine." It is my understanding that Mr. Livingston will provide the document upon the Township's request. On October 7, 2011, the Township denied the request and attached an affidavit signed by its Agency Open Records Officer, Laura Portillo. The affidavit indicated that she had "done a reasonable search of the paper and electronic records in the custody of the Township for the requested record ... no records responsive to the request were found." The Township also asserted that the request was insufficiently specific. On October 17, 2011, the Requester timely appealed to the Office of Open Records. He argued that the Request was sufficiently specific because it specified a date, a subject line and the location of the record. The Requester also provided an affidavit signed by Mr. Livingston attesting that he was a copied recipient of the requested e-mail at a time when he, Mr. Livingston, was the Township Manager. Mr. Livingston described the contents of the e-mail. On appeal, Mr. Breslin took the position that the Township is not only required to produce the requested correspondence if found in the personal e-mail accounts of current township officials but also to request the former Township Manager to produce the document. On appeal, Dickinson Township argued that, to the extent that it was able, it had searched its paper and electronic records and did not locate an e-mail of the type described. It also argued that the Request was insufficiently specific. The Township also provided a verified statement from its former solicitor indicating that all of his e-mail is deleted on a weekly basis and that, if hard copies had been made, they would have been previously provided to the Township. The Township did not indicate whether it requested current Township officials and employees to check their personal e-mail accounts. In its final determination issued and mailed on November 15, 2011, the Office of Open Records, by its Appeals Officer, Audrey Buglione, Esquire, made several findings favorable to Mr. Breslin. 2 First, the Office of Open Records rejected Dickinson Township's contention that the request in this case is insufficiently specific. This appears to be a position which the Township has since abandoned and we will not address it further. The Office of Open Records also made clear that the e-mail requested is a record of the Township. Again, Dickinson Township does not take issue with this contention nor does it argue that records of a personal a-mails of its employees or supervisors are not records of the Township. The Township simply contends that it has reviewed its own records and does not have the e-mail. In this regard, Ms. Buglione concluded: Despite identifying the record as one sent from the Solicitor to the allegedly then current Supervisors and manager ... there is no evidence that the Township AORO inquired with the recipients of the e-mail as to whether they possessed a copy. The Township affidavit reflects only that the Township searched the paper and electronic records in the physical possession of the Township. There is no provision in the RTKL that mandates an agency inquire of former employees or former officials as to whether they possess records, .... However, it is required to inquire of its current employees and officials. If any of the alleged recipients of the e-mail are current employees or officials of the Township and were current employees or officials of the Township when they received the e-mail, the Township is required to inquire with those individuals as to whether each possesses a copy of the requested e-mail. Final Determination, p. 9. The Office of Open Records then went on to grant Mr. Breslin's appeal, requiring the Township to search for the e-mail by inquiring with any alleged recipients who are current employees or officials and, if the record is in the possession of any of these individuals, provide 3 the record to the Requester within thirty days. Apparently, such an inquiry has been made and the e-mail has not been forthcoming. The Township continues to refuse to direct an inquiry towards its former Township Manager, Mr. Livingston, and/or request that he produce a copy of the e-mail. The petition for review, which is pending before us, avers that the Office of Open Records erred in its determination that the search be restricted to only current township officials and employees. The request is that we enter an order requiring Dickinson Township to contact its former manager to provide the public record to the petitioner, Mr. Breslin. The petitioner also seeks an award of attorney's fees and costs as a result of the Township's bad faith. We are also being asked to impose a civil penalty on Dickinson Township of not more than $1,500 for denying access to a public record in bad faith. After reviewing the applicable law, we are constrained to agree with the Office of Open Records that no provision in the Right-To-Know Law mandates an agency to inquire of former employees or former officials as to whether they possess records. We understand that "the courts should interpret the Right-To-Know Law liberally to effect its purpose - - that being, `to promote access to official government information in order to prohibit secrets, scrutinize actions of public officials, and make public officials accountable for their actions.' " Allegheny County Dep't of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025, 1034 (Pa.Cmwlth. 2011) (quoting Bowling, 990 A.2d at 824 ). On the other hand, it is well established that the language of a statute ought not to be ignored in pursuit of a statute's alleged contrary spirit or purpose. 1 Pa.C.S.A. § 1921(b). 4 We cannot deny that there are factors which militate in favor of disclosure. Mr. Breslin alleges, and contends that he can prove, that Dickinson Township's Agency Open Records Officer has, in the past, engaged in the practice of requesting documents of former township officials and employees. It is also clear that Mr. Livingston is more than willing to produce the document if requested by the Township. Mr. Breslin also observes that while there is no provision in the Right-To-Know Law that mandates an agency inquire of former employees or former officials as to whether they possess records, the Right-To-Know Law does not prohibit an agency from contacting a former public official as to whether they possess public records. It is one thing to say, however, that a township has the discretion to act in a certain way and quite another to suggest that the court must, therefore, order the township to exercise its discretion in that way. If the legislature had intended that townships request records of former employees, then it would have made it part of the law. Indeed, it may very well do so in the future. But, as the distinguished Judge Learned Hand observed: "Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant." Spector Motor Service v. Walsh, 139 F.2d 809, 823 (C.A.2 1943). Given the unique circumstances of this case, a direction to the Township that they make the request of Mr. Livingston would appear, at first glance, to be innocuous. We are not privy, however, to whatever the agenda of the parties may be behind this dispute. We also understand that what we do in this case will, of necessity, have precedential value. We, therefore, decline to enter an order which may have unintended consequences and, instead, affirm the action of the Pennsylvania Office of Open Records. 5 ORDER AND NOW, this 28 , day of March, 2012, the within Petition for Review from a Determination of the Pennsylvania Office of Open Records is DENIED and its Determination of November 15, 2011, is AFFIRMED. BY THE COURT, A. Hess, P. J. Cindy L. Villanella, Esquire For the Petitioner Susan J. Smith, Esquire For Dickinson. Township Pennsylvania Office of Open Records Commonwealth Kastone Building 400 North Street, 4` Floor Harrisburg, PA 17120-0225 6 Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner CHARLES BRESLIN, Petitioner/Appellant F ILED-0F 1CE- P HE PRO T NDN-0TPf 2012 APR 23 PM 12: 55 CUMIERLAND COUNT`' PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents/Appellees NO. 2011-9255 CIVIL ACTION - LAW NOTICE OF APPEAL Notice is hereby given that Charles Breslin, Petitioner named above, hereby appeals to the Superior Court of Pennsylvania from the order entered in this matter on the 28th day of March, 2012. This order has been entered in the docket as evidenced by the attached copy of the docket entry. Cindy L. Villanella, Esq. ID No. 202325 Carrucoli And Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Charles Breslin 06 f A-47 -731 e'of? e 61f° ,? 12181004232012 Cumberland County Prothonotary's Office Page 1 PYS510 Civil Case Print 2011-09255 BRESLIN CHARLES (vs) DICKINSON TOWNSHIP ET AL : Reference No Filed........: 12/14/2011 .. Case Type.....: CIVIL APPEALS - JUDICIAL: OTHE Time.........: 2:00 R Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Disposed Desc.: Jury Trial.... Disposed Date. 0/00/0000 -- : --------- Higher Crt 1 ------------ Case Comments -- . Higher Crt 2.: ******************************************************************* ************* General Index Attorney Info BRESLIN CHARLES PLAINTIFF VERNEY JACQUELINE M 11 MINICH DRIVE VILLANELLA CINDY L CARLISLE DICKINSON TOWNSHIP DEFENDANT SMITH SUSAN J PENNSYLVANIA OFFICE OF OPEN DEFENDANT RECORDS 400 NORTH STREET PLAZA LEVEL HARRISBURG PA 17120 0225 ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - - VERNEY PENNSYLVANIA 12/14/2011 OFFICE PETITION OF F OPEN REVIEW FROM DETERMINATION OF THE PLFF ------------------------------------------------------------------- 12/20/2011 RULE TO SHOW CAUSE DATED 12-16-11 IN RE RULE IS ISSUED UPON THE RESPONDENTS TO SHOW CAUSE - RESPONDENTS SHALL FILE AN ANSWER WITHIN 20 DAYS - ARGUMENT IS SCHEDULED FOR MARCH 2 2012 AT 11 AM IN CR 4 - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 12-20-11 ------------------------------------------------------------------- 1/05/2012 RESPONDENT DICKINSON TOWNSHIP'S PETITION TO AMEND RULE TO SHOW CAUSE - BY SUSAN J SMITH ATTY FOR RESPONDENT ------------------------------------------------------------------- 1/05/2012 RESPONDENT DICKINSON TOWNSHIP'S ANSWER TO PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS - BY SUSAN J SMITH ATTY FOR RESPONDENTS -------------------------------------------------------------------- 1/05/2012 RESPONDENT DICKINSON TOWNSHIP'S MOTION TO STRIKE PORTIONS OF PETITION FOR REVIEW - BY SUSAN J SMITH ATTY FOR RESPONDENTS ------------------------------------------------------------------- 1/05/2012 ENTRY OF APPEARANCE FOR DICKINSON TOWNSHIP - BY SUSAN J SMITH ESQ ------------------------------------------------------------------- 1/12/2012 RESPONDENT DICKINSON TOWNSHIP'S AMENDED MOTION TO STRIKE PORTIONS OF PETITION FOR REVIEW - BY SUSAN J SMITH ATTY FOR RESPONDENTS ------------------------------------------------------------------- 1/17/2012 RESPONDENT DICKINSON TOWNSHIP'S AMENDED PETITION TO AMEND RULE TO SHOW CAUSE - BY SUSAN J SMITH ATTY FOR RESPONDENT ------------------------------------------------------------------- 1/25/2012 RULE TO SHOW CAUSE DATED 1-24-12 IN RE RULE ISSUED UPON RESPONDENTS TO SHOW CAUSE - RESPONDENTS SHALL FILE AN ANSWER WITHIN 20 DAYS OF THIS DATE - ARGUMENT SCHEDULED FOR MARCH 2 2012 AT 11 AM IN CR 4 - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 1-25-12 ------------------------------------------------------------------- 2/13/2012 PETITIONER'S ANSWER TO RESPONDENT DICKINSON TOWNSHIP'S PETITION TO AMEND RULE TO SHOW CAUSE - BY CINDY L VILLANELLA ATTY FOR PLFF ------------------------------------------------------------------- 2/13/2012 PRAECIPE TO ENTER APPEARANCE - BY CINDY L VILLANELLA ATTY FOR PLFF -------------------------------------------------------------------- 3/28/2012 ORDER DATED 3-28-12 IN RE PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS BEFORE HESS PJ - IS **DENIED** AND DETERMINATION IS **AFFIRMED** - BY THE COURT KEVIN A HESS PJ - COPIES MAILED 3-28-12 - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - ******************************************************************************** * Escrow Information 12181004232012 Cumberland County Prothonotary 's Office Page 2 PYS510 Civil Case Print 2011-09255 BRESLIN CHARLES (vs) DICKINSON TOWNSHIP ET AL Reference No..: Filed........: 12/14/2011 Case Type.....: CIVIL APPEALS - JUDICIAL: OTHE Time.........: 2:00 R Judgment...... 00 Execution Date 0/00/0000 Judge Assigned: HESS KEVIN A Disposed Desc.: Jury Trial.... Disposed Date. t 1 i C 0/00/0000 ------------ Case Comments ------------- .: r gher H Higher Crt 2.: l q Bal Pmts/Add * Fees & Debits Be End Ba ***************** ************ * ******************************** ******** ****** ** PETITION 55.00 55.00 .00 TAX ON PETITION .50 .50 .00 SETTLEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 23.50 23.50 ------- - .00 ------------ ----------------- 92.00 92.00 .00 *************************************************** ***************** ************ * End of Case Information *************************************************** ***************** ************ TRUE COPY FROM RECORD In Testimony whereof, l here unto set my hand at Carlisle, Pa. and dts '" of "M r"Ut Tnk J of ,ro , 20 Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner CHARLES BRESLIN, Petitioner/Appellant _ riLEO-OFFICE J 1 E PROTNO'N fAR'' 2D12 APR 23 PM 12:59 CUMBERLAND COUNTY PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents/Appellees NO. 2011-9255 CIVIL ACTION - LAW ORDER FOR TRANSCRIPT A Notice of Appeal having been filed in this matter, the official court reporter is hereby ordered to produce, certify and file the transcript in this matter in conformity with ule 1922 of the Pennsylvania Rules of Appellate Procedure. . v erney, ID? o.2ZW Cindy L. Villanella, Esq. ID No. 202325 Carrucoli And Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Charles Breslin Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner CHARLES BRESLIN, Petitioner/Appellant 1LE'0-0 FICE' ,, THE PROTHONPOT +'.' 2012 APR 23 PM 12: 56 CvPNSYLVAN A 1' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. DICKINSON TOWNSHIP, and PENNSYLVANIA OFFICE OF OPEN RECORDS, Defendants/Appellees NO. 2011-9255 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Cindy L. Villanella, Esq., counsel for Petitioner/Appellant hereby certify that a copy of the Notice of Appeal, Order for Transcript and Docket Entry were served on the following by first class mail, postage prepaid: The Honorable Kevin J. Hess Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 PA Office of Open Records Commonwealth Keystone Building 400 North Street Plaza Level Harrisburg, PA 17120-0225 Susan J. Smith, Esq. 3009 Market Street Camp Hill, PA 17011 Attorney for Dickinson Township Jacqueline M. Verney, Esq. Cindy L. Villanella, Esq. Carrucoli & Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717)243-9190 Attorneys for Petitioner Cumberland County Court Administrator 1 Courthouse Square Carlisle, PA 17013 J raque e . v erneyrq I o. _ 67 indy L. Villanella, E ID No. 202325 Carrucoli And Associates, P.C. 44 South Hanover Street Carlisle, PA 17013 (717) 243-9190 Attorney for Charles Breslin %*b 9puperior Court of Vennopibania Karen Reid Bramblett, Esq. Pennsylvania Judicial Center Prothonotary Middle District P.O. Box 62435 Milan K. Mrkobrad, Esq. 601 Commonwealth Avenue, Suite 1600 Deputy Prothonotary Harrisburg, PA 17106-2435 April 24, 2012 (717) 772-1294 www.superior. court. state. pa. us Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square n Carlisle, PA 17013 -? ;:z -s RE: Charles Breslin Appellant rte- cn -+ V. Xft Dickinson Township and Pennsylvania Office of Open Records XC c3 768 MDA 2012 Trial Court Docket No: 2011-09255 _ r- Dear David D. Buell: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Respectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /ks Enclosure 3:04 P.M. Appeal Docket Sheet Superior Court of Pennsylvania Docket Number: 768 MDA 2012 Page 1 of 2 Secure April 24, 2012 Charles Breslin Appellant V. Dickinson Township and Pennsylvania Office of Open Records Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: April 24, 2012 Journal Number: Case Category: Civil Awaiting Original Record Case Type(s): Civil Action Law Next Event Type: Receive Docketing Statement Next Event Due Date: May 8, 2012 Next Event Type: Original Record Received Next Event Due Date: June 22, 2012 COUNIM& TION Appellant Breslin, Charles Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Verney, Jacqueline M. Bar No: 023167 Address: 44 S Hanover St Carlisle, PA 17013 Phone No: (717) 243-9190 Fax No: (717) 243-3518 Receive Mail: Yes Receive Entail: Yes EMail Address: jmverney@aol.com Attorney: Villanella Pieret, Cindy Lee Bar No: 202325 Address: Carrucoli and Associates 44 S. Hanover Street Carlisle, PA 17013 Phone No: Fax No: Receive Mail: Yes Receive EMail: No 3:04 P.M. Appeal Docket Sheet Docket Number: 768 MDA 2012 Superior Court of Pennsylvania Page 2 of 2 Secure April 24, 2012 Appellee Dickinson Township and Pennsylvania Office of Open Records Pro Se: No Appoint Counsel Status: Represented IFP Status: No Attorney: Smith, Susan J. Bar No: 062531 Address: 3009 Market St Camp Hill, PA 17011 Phone No: (717) 763-1650 Fax No: (717) 763-1651 Receive Mail: Yes Receive EMail: Yes EMail Address: ssmith@smithcartwright.com Fee Dt Fee Name Fee Amt Receipt Dt Receipt No Receipt Amt 04/23/2012 Notice of Appeal 73.50 04/24/2012 2012-SPR-M-000409 73.50 Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Cumberland County Civil Division Order Appealed From: March 28, 2012 Judicial District: 09 Documents Received: April 24, 2012 Notice of Appeal Filed: April 23, 2012 Order Type: Order Entered OTN(s): Lower Ct Docket No(s):2011-09255 Lower Ct Judge(s): Hess, Kevin A. President Judge Filed Date Docket Entry / Representing Participant Type Filed By April 24, 2012 Notice of Appeal Docketed Appellant Breslin, Charles April 24, 2012 Docketing Statement Exited (Civil) Middle District Filing Office Ouperior Court of i3enn0p1bania Karen Reid Bramblett, Esq. Prothonotary Middle District Milan K. Mrkobrad, Esq. Deputy Prothonotary May 9, 2012 RE: Breslin, C. v. Dickinson Twp. No. 768 MDA 2012 Trial Court Docket No: 2011-09255 Dear Attorney Verney Attorney Villanella Pieret Pennsylvania Judicial Center P.O. Box 62435 601 Commonwealth Avenue, Suite 1600 Harrisburg, PA 17106-243S (717) 772-1294 www. superior. court.state. Pa. us Enclosed please find a copy of an order dated May 9, 2012 entered in the above-captioned matter. Pursuant to the foregoing Order, a certified copy is being sent to the trial court judge, the trial court, and Commonwealth Court, along with all related material. espectfully, Milan K. Mrkobrad, Esq. Deputy Prothonotary /ks Enclosure cc: Buell, David D., Prothonotary The Honorable Kevin A. Hess, President Judge Michael Krimmel, Esq., Chief Clerk of Commonwealth Court Susan J. Smith, Esq. ? L , t Charles Breslin V. Dickinson Township and Penna. Office of Open Records 7 ? IN THE SUPERIOR COIN r"n k -? OF PENNSYLVANIA `. , (C.P. Cumberland Co?ay i No. 2011-09255) - v c-: -- No. 768 MDA 2012 Filed: May 9, 2012 ` ORDER As this matter involves a petition for review of a determination of the Office of Open Records and application of the Right-to-Know-Act, 65 P.S. §§ 66.1 et seq., this appeal is hereby TRANSFERRED to the Commonwealth Court. See Pa.R.A.P. 751; 42 Pa.C.S. § 762(a)(3) (involving secondary review of certain appeals from Commonwealth agencies); see also 42 Pa.C.S. § 762(a)(4)(i)(A) (regarding application, interpretation or enforcement of statutes regulating the affairs of political subdivisions). Per Curiam TRUE COPY RBCORD A Y00 su r Court d' - Middle Dirtrld QCommou~neart~j ~uurt of ~euu~p[bauta f~risten Vc. Brown Penns+hania Judicial Center Prothonotan 601 Cummonw~~alth Avenue, Suite 2100 Michael I~nmmrl. E:9. P.O. Box 69185 (_'hief Clerk of Commonwealth Court Harri~hur,~, PA 1 71 06-91 81 October 17, 2012 ~,w.w sac°~~t,.°~ NOTICE OF DOCKETING APPEAL RE: Breslin, C. v. Dickinson Twp. 875 CD 2012 Filed Date: April23, 2012 Trial Court Docket No: 2011-09255 768 M DA 2012 A Notice of Appeal from an order of your court has been docketed in the Commonwealth Court of Pennsylvania. The Commonwealth Court docket number must be on all correspondence and documents filed with the court. Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure, the Notice of Appeal has the effect of directing the Court to transmit the certified record in the matter to the Prothonotary of the Commonwealth Court. The complete record, including the opinion of the trial judge, should be forwarded to the Commonwealth Court within sixty (60) days of the date of filing of the Notice of Appeal. Do not transmit a partial record. Pa.R.A.P. 1921 to 1933 provides the standards for preparation, certification and transmission of the record. The address to which the Court, is to transmit the record is set forth on the next page of this notice. NOTICE TO COUNSEL A copy of this notice is being sent to all parties or their counsel indicated on the proof of service accompanying the Notice of Appeal. The appearance of all counsel has been entered on the record in the Commonwealth Court. Counsel has thirty (30) days from the date of filing of the Notice of Appeal to file a praecipe to withdraw their appearance pursuant to Pa_R.A.P. 907 (b). Appellant or Appellant's attorney should review the record of the trial court, in order to insure that it is complete, prior to certification to this Court. (Note: A copy of the Zoning Ordinance must accompany records in Zoning Appeal cases). The addresses to which you are to transmit documents to this Court are set forth on the next page of this Notice. If you have special needs, please contact this court in writing as soon as possible. _~ Attorney Name Participant Name Participant Type Jacqueline M. Verney, Esq. Charles Breslin Appellant Cindy Lee Villanella Pieret, Esq. Charles Breslin Susan J. Smith, Esq. Dickinson Township Appellant Appellee Address all written communications to: Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Filings may be made in person at 'the following address (except on Saturdays, Sundays and holidays observed by Pennsylvania Courts) between 9:00 a.m. and 4:00 p.m. Office of the Chief Clerk Commonwealth Court of Pennsylvania Pennsylvania Judicial Center 601 Commonwealth Avenue, Suite 2100 P.O. Box 69185 Harrisburg, PA 17106-9185 (717) 255-1650 Pleadings and similar papers (but not paperbooks or certified records) may also be filed in person only at Office of the Chief Clerk Commonwealth Court of Pennsylvania Filing Office Suite 990 The Widener Building 1339 Chestnut Street Philadelphia, PA 19107 (215) 496-4980 The hours of the Philadelphia Filing Office are 9:00 a.m. to 4:00 p.m. Under Pa.R.A.P. 3702, writs or other process issuing out of the Commonwealth Court shall exit only from the Harrisburg Office. j CERTIFICATE AND TRANSMITTAL OF RE(~ORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROf~EDURE 19~i1 (C) Commonwealth Court of PA T~~ the Prothonotary of the Apellate Court to which t:he within matter has been appealed: Commonwealth Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a trl.ie and correct copy of the whole and entire record, including an opinion of the court ~ required b~ PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: CHARLES BRESLIN Vs. DICKINSON TOWNSHIP AND PENNSYLVANIA OFFICE OPEN RE(~'ORD 2011-9255 CIVIL TERM 875 CD 2012 The documents comprising the record have been numbered from No. 1 to 183, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each docu~~nent, the number of pages ;,omprising the document. The date on w°hich the record has been transmitted to the Appellate Court is 10/18/2012. / / D id D. Bu 1, P othonotary ___ ~ Alma Kostjerevac, Deputy An additional capy of this certificate is enclosed. Please sign and date copv~thereby acknowledging receipt of this record. Date Signature & Title CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROt~EDURE 1931 (C) Commonwealth Cou,i-t of PA I~o the Prothonotary of the Apellate Court to which the within matter has been appealed: Commonwealth Court of PA `hhe undersignea., Prothonotary of the Court of Common .Pleas of Cumberland ('ounty, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court ~~.s required bti PA R.A.P. 1925, the original papers and exhibits, if any on :file, the transcript of the proceedings, if any, and the docket entries in the following matter: CHARLES BRESLIN Vs. DICKINSON TOWNSHIP AND PENNSYLVANIA OFFICE OPEN R1i:~CORD 2011-9255 CIVIL TERM 875 CD 2012 The documents comprising the record have been numbered from 1\0. 1 to 1.83, and attached hereto as Exhibit A is a list of the documents correspondingly numiered and identified with reasonable definiteness, including with respect to each doctunent, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 10/18/2012. f D id >/~. Bu 1, P othonotary Alma Kostjerevac, Deputy An additional copy of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date Signature & Title omc~~~n~~-calm ~f Penns_Vlvania ', ~ (~~tin~~, ~ f Cunihcr'.a.rtd ss: 1, David D. Buell Prtn.hoootarv ~tf the Court of Common Pleas in an~C fur said County, do hereby certify that the fore•gain~~ is a full, true. and correct copy of the whole record of the case therein stated, whrr,rein CHARLES BRESLIN Plaintiff, and DICKI~SON'fOti~'NSHCP Al~;D PEi ~ -SYLVAMA OFFICE OPE`~ RECORD In ' F ~1 i~1C)'s`r t~'HEREOF ,!~ 18TH Defendant, as tl;c same remains of record helcre the ;aid Court at \'0 2011-92~~ ~{' Civil Tz,mg~l~ C1~2012 have hereunto set my hand and affi red the~ seal o'. send Court day ~f ER A i~ . 3012 ,_;~ Kevin A. Hess President Judge oI-tits ~intlt %:,:Jicial District, compi>sed of the County of Cumberland, do certil~y~ that ____ ___.___._______ I~~avid D. Buell by ~~~hom the annexed record, certif:~~~ate and tew:ati~~~n ~~'~-r~ made and given, and who, in his o~~~n proper Iiantiwritin~, thereunto subscrih~~cl hi~~ name ~ sf:i •.ed tite sral ~tf the Court of C+~rnmon Pleas of said County. was, at the time of so doirt~~.::n.: r.ow is P_:~titu,:crtar~. in arr.3 for said County of Cumberland is C~,r~;rnon~sealth r:.f Pennsylvania, duly eornmissiat~ed and yuztlifie;J to a(l ofwhosc acts ~ts.u~ .!-~ fu'!I f~aitl? ai,~l ~rcC:it arc and ought to be given as well in Courts ofjudica~ure as elsewltere_, a~,d ihat th ;~~.1~.i r,:cord. - t t_~I~:;.UC algid atiCSCOt,On fICZ in due Iorm of law Gild made I)V ((}~ 17rf1 .T [lif4CCC. ~.~,: o ~ i' ~.i~L_i~i _ ~~'e~ ~,trr,rnonwcalth of 1'cnnsvltiania sS: ~'7i1nt`. .. :' CLIrf?~?t;rlLiiiJ David D. Buell Prothonortr~~ of .he Court of Common i'I_as in Puri c~- ~ h~z said Colin?y, do certify that the Ifanorable Kevin A. Hess b~ ~~htc r,. the foregoing attestation ~~as made. and who has thereunto subscribed his name, eva,, at the time -ti rnakir~ thereof, and still is President Judge of the C i)urt of Ct>mm<.>n Pleas, CYrphan' Court arc, ~ ~ourt of ~.~art~•r .sessions of the Peace in and for said County, duly Commissiitned and quaEified; to ail ~h h~o~.e acU t ~=uc~~ 'u!I faith tmd credit arc <.nd ottgbt to he giver, as ~t~e1[ in Courts of judicature as etse~~h_rc. iti 1I SI Iti1f1NY .~'H£REOF, I trav~e hereunto ~• m~ I;ar,d and a!~fixed the sea( of said Court this 1 TH d~~ oi~ OCTOBER r~. D. 2012 ~ . ~ o. __ .Term 19__ 201 I-92» CIViL TERM '~~~~~ Civil Term sus c~ Holz CHARLES BRES]LIN Versus DICKINSON TOw'NSHIP AND PENNSYLVANIA OFFICE OPEN RECORD ~x~:n~~Pi,-~t~n K~coxn Cumberland from. __ County Debt. ~ _ E nt. from __ Costs . Erncrcd and Filed P;othonotsr~~ ~n~~+r~: !h~ I2e~_ords and I'rocecdinrs enr~Iled in the court o C"emrr~on F'!ea> in ~,~:1 for the Cumberland ~_ur~n~~~ ~ ____ in the Ccinmom~:~eaitl-; ~~f F'cnt,~~ylcania 201 1-925 CIVIL TERM ~;~, '~f~, 87i CD 2012 ~(errn. 19 __ iti contained the loil~~~,ving C'{:~r'Y CAF ______ __ Appearance _ __. _- UOClCET E.~'"? RY CHARLES BRESLIN vs. DICKINSON TOWNSHIP AND PENNSYLVANIA OFFICE OPEN iZECORD **SEE CER'T'IFIED COPY OF DOCKET ENTERIES** ~~_- y„m~-,e:N.__ ~ _ _ __ _ _~v t ~--_ = Page ' 201~~ ~?:-"' BRESLIN C~IA'_~E3 f'~-) :~LCI~;INSOT7 ~~~i~ ~___? ET ;=._- ,.. RefE~rer.c~. No.. : Fi.:.ec~. .. .... : 12 14/2011 CasE- T~,' ...: CIVIL r~PPT:,~=~i..S - JUDaCI Tin?e. . . . .. 2:00 Judamer_~ ~..... . 00 Execta~-or,. Date 0/00/0000 Judge F.sSigned: HESS KEVIT3 A Jury Trim.. Disz;osec Desc.: D;sppcsed Date. 0/OOJ0000 -------- --- Case CommentE:, -------------- HicY~ler Crt 1.: 768MDA2012 Higher C:~t ~.: 875 CD 2012 ****t*+*********k*******~t***********i;**************;r*******t**t,rk*************** Ge~:eral Int~ex Attcrne~y, ::tr_f~~ BRESLIN CnARLES PLAINTIFF' VF~RNEY JACQUEL:INE~ M 11 MINICH DRIVE VILLANELLA ~~TNTJY L CARLISLE DICKINSON TOWNSH..P DEFENDANT SMITH SUSADI ~: PENNSYLV.A:vIA OFFICE OF OPEN DEFENDANT RECORDS 400 NORTH STREET PLAZA LEVEL HARRISBTJR':~ PA 1 r%120 0225 * * * * * k * * ~ ~~ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *~-.e * t * * * * * * * * * * * * * * * * Date Entries * * * * * t * * 'k ~ * * * * * * * * * * * * * * * * * * * * * * it * * * * * * * * * * * * * * * * * * * * * * * * * * * * * -.k * ~ * * * * * * * * * * * * * * * - - - - - - - - - - - - - FIRST ENTRY - - - - - -- - - - - - - - - -$LI 12;'14'201 _ PETITION FOR REVIEW FROM A DETERMINATION OF THE PET~INSYLVANIA OFFICE OF OPEN RECORDS - BY JACQUELINE M VERNEY ATE"Y FOR PLFF ~ 12%20,'20:_~ RULE TO SHOW CAUSE DATED 12-16--11 IN RE RULE IS ISSUED UPON THE RESPONDENTS TO SHOW CAUSE - RESPONDENTS ,SHALL FILE AN APISWER WITHIN 20 DAYS - ARGUMENT IS SCHEDULED FOR MARCH 2?_012 AT 11 AM IN CR 4 - BY THE COURT KEVIN A HESS PJ - COPIES D'LAI:LED 12-20-11 ~~-Bl 1j05;'201G RESPO:~TDENT DTCKINSON TOWNSHIP'S PETITION TO AMEND 1_ULE TO SHOW CAUSE - BY SUSAN J SMITH ATTY FOR RESPONDENT ~~p_~QC~1/05,?_01~ RESPO]VDENT DICKINSON TOWNSHIP'S ANSWER TO PETITION FOR REVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPE?~I P.ECORDS - BY SUSAN' J SMITH ATTY FOR RESPONDENTS '(~-11T i/ 05 j 20_2 RESPOIQDENT DICKINSON TOWNSHIP'S MOTION '"O STRIKE PORTIONS OF PETITION FOR REVIEW - BY SUSAN J SMITH ATTY FOR RESPONDENTS }(S -II61/05/2012 ENTRY OF APPEARANCE FOR DICKINSON TOWNSHIP - BY SU:;~ASQ J SMITH ESQ ~~c'~_(2~ 1/12/2012 RESPONDENT DICKINSON TOWNSHIP'S AP2ENDED MOTION TO ~;~I'RIKE PORTIONS CF PE'~~ITION FOR REVIEW - BY SUSAN J SMITH ATTY FOR ';RESPONDENTS 12Z_~~~1/17/1012 RESPOiIDENT DICKINSON TOWNSHIP'S AMENDED PETITION TC'- APIEND RULE TO SHOs7 CAUSE - BY SUSAN J SMITH ATTY FOR RESPONDENT g.S 1/25/:!012 RULE TO SHOW CAUSE DATED 1-24-12 iN RE RULE ISSUED 1]PON RESPONDENTS TO SHOW CAUSE - RESPONDENTS SHALL FILE r~l\1 ANSG]ER w'ITHII\f 20 DAYS OF THIS DATE - ARGUMENT SCHEDULED F03~ MARCH 2 2012 AT 11 A~ IN CR 4 - BY THE COURT KEVIN A HESS PJ - "'(.iPL ES P~IAILED 7_-25-~ 2 -------------------------- ~~Fj- X32 2 f 13 !.,.012 PETITIONER'S ANSWER TO RESPONDE]~IT DICKINSON TOWNSHII?' S PETITION TO F~vIEND RULE TO SHOW CAUSE - BY CINDY L VL,LPNELLA Ar:'TY FOR PLFF r3 3-i3~ 2/13/.?012 PETITIONERS' ANSWER TO RESPONDENT DICKINSON TOWNSHIP"S MOTION TO STRIKE PORTIONS OF PETITION FOR REVIEW - :BY CINDY "~ 'IILLANELLA ATTY FOR PETITIONER ~~D 2/7.3; `2012 PRAECIPE TO ENTER APPEARANCE - E3Y CINDY L VILLANELLr~ ATTY FOR PLFF J~{ j - J~~13 / 2 8 j :~ 012 ORDER .AND OPINION DATED 3 - 2 8 -12 IN RE PET:TION FOR E~.EVIEW FROM A DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS BEFORE HESS P~J - IS **DENIED** AND DETERMINATION TS **AFFI3P~IEC** - BY THE COURT KEVII`I A HESS PJ - COPIES MAILED 3 - 2 F? -12 C'-v Cr~ ~=e ~ - __ - 2011 0925 BRESLIN CHARLES (vs) DIC}'=.NSUT. C~~d~SI:~_I= ET AL Reference Nc Case Ttr~e. .. .. : CIVIL APPEALS - BUD.-C'I Judgmeil~_ . ....: . 00 Judge Assigned: HESS KEVIN A Disposer. Desc.: --- --- --- Case Comments ------- log-1534/2_ 'zou<. -5~4-156 4/2~ 2c1='. 1~~-1~5/~~:; 2c12 111_ ~3 10/18J2012 10/18!20,~J- Fi~eci ..... 12/14/2011 Time...... ..: 2:00 ExecL.t.~.cn Late 0/00/0000 Jury "'rial.... Dispcs2~? Date . 0/00 f 0000 Hig per ~t:~t 1 . ; 768MDA2012 Higc~her ~r.t 2.: 875 CD 2012 NOTICE OF APPEAL TO SUPERIOR CCUR7' - BY CINDY :: i:LLANELLA ATTY FOR PLFF SUPERIOR COURT OF PA NOTICE OF APFEAL DOCKETING ':' # 768 MDA 2012 IN R:E TRANSCRIPT OF PROCEEDINGS - BEFORI~ J HESS ,):".v MARCH 2 2012 ORDER DATED 05%09/2012 - AS THIS MATTER INVOLVES A. PETITION FOR REVIEW OF A DETERMINATION OF OFFICE OF OPEN RECORDS AND APPL:LCATION OF THE RIGHT-TO-KID"OW- ACT THIS APPEA_.: =:S HEREBY **TRANSFERRED TC THE COMMONWEALTH COURT** PER CURIAM COMMONWEALTH COURT OF PA NOTICE OF APPEAL DOCKETIi1G r;- 875 CD 2012 NOTICE OF DOCKET ENTRIES MAILED TO JACQUELINE M VE?1?N~;Y ESQ CINDY LEE PIERET VILLANELLA ESQ AND SUSAiV J SN:ITH ESQ - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - * Escrow Information * Fees & Debits Beq~ Sal P~cnts/`Ad~ End Bai *****t**~~********************** ******** ~***** *************,~-****,k************ PETITIO]'~1 55.00 55.00 .00 "'AX ON PETITION .50 .50 .00 SET"'LEMENT 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE, 23.50 23.50 .00 APPEAL F'ICH CT 57.00 - - --- 57.00 --- .00 149.00 ------- --- .a9.C0 --------- .OJ **~F**rx**-k -~; **~F is -k ;t *~k-k;F****~k ~t ~k is ****~F A-***~; is ~F:F**ic*;1~*:t*~c*~F*****:F** *;i is is**~i'*~F it*~F ;F*****;F * End of Case Tnformation * ****~:Y**********~**********************************,~*******~x,**-************~* TRUE COPY FROM RECORD In Testimony whereof, I here unto set my hand and the se of said Court at Carlisle, Pa. This ~_~ day of ~~ 20 Prothonotary ~'~` ~ S ~ ~ E~a~~ C i ti- IN THE COMMONWEALTH COURT OF PENNSYLVANIA Charles Breslin, Appellant V. No. 875 C.D. 2012 Dickinson Township Argued: March 11, 2013 BEFORE: HONORABLE BONNIE BR1GANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER,, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE COHN JUBELIRER FILED: May 24, 2013 Charles Breslin (Requestor) appeals from the Order of the Court of Common Pleas of Cumberland County (trial court) that denied Request6r's Petition for Review from the Final Determination of the Office of Open Records (OOR). In its Final Determination, the OOR required Dickinson Township (Township) to inquire of its employees and officials whether they were in possession of a document sought by Requestor, but declined to order the Township to make a similar inquiry of former officials or employees. Requestor argues that, under the Right-to-Know Law (RTK-L),' the Township must inquire of former employees and officials Act of February 14,2008,P.L. 6,65 P.S. §§ 67.101 —67.3104. whether they are in possession of the Township's records, particularly where the Township has established a practice of doing so in response to other requests. On September 29, 2011, Requestor submitted to the To' wnship's Open Records Officer (ORO) his request for "a copy of an email addressing township business currently in the possession of former Township Office Manager Robert Livingston, dated 9 February, 2006, Subject: 'Sunshine' [(Request)]. It is my understanding that Mr. Livingston will provide the document upon the township's request." (Request, R.R. at 22a.) On October 7, 2011, the ORO responded that the Request was not sufficiently specific, as required by Section 703 of the RTKL,' but that the ORO had nonetheless undertaken a search of records in the Township's custody and found no responsive record. (ORO Response at 1-2, R.R. at 24a-25a.) On October 16, 2011, Requestor appealed to the OOR arguing that he had sufficiently identified the record requested and that Mr. Livingston indicated to the Requestor that the Township had not contacted him regarding the email. (Requestor's Appeal to OOR at 2, R.R. at 28a.) Requestor attached to his appeal a notarized declaration from Mr. Livingston, which indicated that the requested email had been copied to his-personal email address and that the email, "from the defendant Edward L. Schorpp, Attorney. at Law," indicated "that Supervisor Thomas Patterson had no opportunity to vote on the special personnel counsel of Campbell, Durrant and Beatty and that a public vote was taken on February 6, 2 65 P.S. § 67.703. Section 703 provides in pertinent part that a written request for records under the RTKL "should identify or describe the records* sought with sufficient specificity to enable the agency to ascertain which records are being requested." Id. 2 2006, without Patterson's input." (Declaration of Robert O. Livingston, TT 21, 4, R.R. at 30a.) The OOR invited the parties to submit additional evidence or argument. Requestor submitted a letter explaining the background for his Request and the reasons he believed the Township might have for wishing to deny his Request? Requestor also argued that documents could be public records even if they were sent and received via officials' private email addresses. (Letter from Requestor to OOR (October 25, 2011) at 5-6, R.R. at 41 a-42a.) The Township submitted a letter arguing that the Request was not sufficiently specific because it did not identify the sender or recipient and that, by including more information regarding the record in his appeal to the OOR, Requestor was attempting to improperly refashion his Request on appeal. (Letter from Township to OOR (October 27, 2011) at 2-3, R.R. at 55a-56a.) The Township also stated that, despite the insufficiency of the Request, it had attempted to search for the requested email, found no responsive record in its possession, and did not believe the RTKL required it to seek the record from a former official. (Letter from Township to OOR (October 27, 2011) at 3-4, R.R. at 56a-57a.) 3 From documents included in the filings by Requestor and the Township, it appears that Requestor is the plaintiff in a suit in federal court against the Township. In the course of this federal suit, the Township has objected to.Requestor's attempts to elicit testimony from Mr. Livingston and the Township has sought a protective otder on the grounds of attorney-client privilege. (Breslin's Br. in Federal Suit at 1, 11, 14, R.R. at 99a-101a; Order of the U.S. District Court for the Middle District of Pa. at 1-2, R.R. at 102a-03a.) However, the Township does not raise this privilege as an exemption to the disclosure of the requested email. In addition, Requestor's co-plaintiff in the federal case attempted to obtain the same email at issue in the current matter through a RTKL request, which the Township denied and which denial the OOR affirmed. This matter dealt with the question of whether the Township had a copy of the requested email, but did not address the issue of whether the Township had a duty to seek the email from former officials. (Final Determination at 9 & n.2); Thompson v. Dickinson Township, OOR Docket No. AP 2011-1150. 3 The OOR issued its Final Determination on November 15, 2011, and granted Requestor's appeal to the extent that the OOR ordered the Township to inquire of current employees and officials as to whether they were in possession of the requested ernail.' (Final Determination at 9, R.R. at 71 a.) The OOR held that the requested record was a public record because it documented business of the Township and was allegedly sent among acting Supervisors, who collectively had the authority to act on the Township's behalf. (Final Determination at 8, R.R. at 70a.) The OOR held, however, that the RTKL did not impose any requirement that the Township seek the requested email from former officials or employees. (Final Determination at 9, R.R. at 71a.) Requestor appealed the OOR's Final Determination to the trial court insofar as it did not require the Township to request the email from its former officials or employees. The Requestor also asked the trial court to assess a $1,500 penalty against the Township for denying the,email in bad faith. After filings and briefs from the parties, the trial court held argument on Requestor's appeal. The trial court issued its Opinion and Order on March 28, 2012, denying Requestor's appeal and affirming the Final Determination of the OOR.- (Trial Ct. Op. at 6.) Acknowledging that Mr. Livingston.had expressed a willingness to turn the record over if requested to do so by the Township, the trial court noted that while nothing in the RTKL prohibits an agency from seeking a 4 By letter dated December 14, 2011, the Township's, ORO informed Requestor that no responsive records had been found after an inquiry directed to current employees and officials. (R.R. at 96a.) 4 requested record from a former official, nothing in the. RTKL requires such a search either. (Trial Ct. Op. at 5.) Requestor now appeals to this Court.' Before this Court, Requestor argues that the RTKL, along with this Court's precedent, requires an agency to request a public record from a former official of that agency who is in possession of such a record. Requestor argues that the Township has established a policy of seeking requested records from former employees and officials and may not choose not to do so in special cases. Requestor also asks this Court to award him attorney's fees pursuant to the RTKL. We first address Requestor's argument that the RTKL, and this Court's case law, require agencies to contact third parties, including former officials of the agency, in order to locate or obtain public records in response to RTKL requests. Requestor bases this argument on Section 506(d)(3) of the RTKL. Section 506(d) of the RTKL provides: (1) A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for'purposes of this act. (2) Nothing in this act shall be construed to require access to any other record of the party in possession of the public record. 5 "This Court's scope of review from a decision of a trial court in a case under the RTKL is 'limited to determining whether findings of fact are supported by competent evidence or whether the trial court committed an error of law, or an abuse of discretion in reaching its decision."' Mollick v. Township of Worcester, 32 A.3d 859, 869 n.16 (Pa. Cmwlth. 2011) (quoting Kaplin v. Lower Merion Township, 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth.), petition for allowance of appeal denied, 612 Pa. 693, 29 A.3d 798 (2011)). 5 (3) A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency. Upon a determination that the record is subject to access under this act, the open records officer shall assess the duplication fee established under section 1307(b) and upon collection shall remit the fee to the party in possession of the record if the party duplicated the record. 65 P.S. § 67.506(d). Requestor argues that this provision requires that, when an agency determines that a public record is in the possession of a third party, the agency must contact that party in order to obtain the record. However, in context with the remainder of Section 506(d), Section 506(4)(3) provides a mechanism whereby records obtainable as public records of a party performing a governmental function for an agency under contract may be disclosed under the RTK-L through an agency, subject to a copying fee to be remitted to the party. Section 506(d)(1) makes records that directly relate to a governmental function performed on behalf of an agency by a contracted party public records of that agency. The plain language of Section 506(4)(3) does not provide a mandate for disclosure independent of Section 506(d)(1), but instead provides the process or procedure through which records defined as public records by Section 506(d)(1) may be obtained and disclosed. Indeed, this is the context in which this Court has applied Section 506(d) in previous cases. . Sees ems, Allegheny_Count Department of Administrative Services v. Parsons, 61 A.3d 336, 340 (Pa. Cmwlth. 2013) ("Section 506(d) may reach records that are not in an agency's possession, custody or control provided the third party in possession has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function." (first emphasis added)); Buehl v. Office of Open Records, 6 A.3d 27, 30 (Pa. Cmwlth. 2010) ("In order for third-party records to be considered public records of the Department under the RTKL, they must be in the 6 possession of the contracting party and must 'directly relate to the governmental function."' (quoting Section 506(d)).). Requestor also argues that this Court's case law interpreting the RTKL requires the Township to seek an email relating to Township business from its former office manager. Requestor asserts that in both BarkMille Borough v. Steams, 35 A.3d 91 (Pa. Cmwlth. 2012), and Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Cmwlth. 2011), this Court held that it is the nature of emails that determines whether they must be disclosed, regardless of whether the emails were received or transmitted using officials' personal email accounts. In order to address this argument, an examination of these cases is required. This is the latest in a line of cases dealing with the circumstances under which records in the possession of an individual must be disclosed under the RTKL as public records of an agency. In In re Silberstein, 11 A.3d 629, 630 (Pa. Cmwlth. 2011), this Court was faced with an appeal involving a denial by York Township for emails on a township commissioner's personal computer that were sent between the commissioner and any citizen of York Township. In resolving this issue, our Court looked"to the provisions of the RTKL defining a "record" for the purposes of the RTKL and delineating the duties of an agency in response to a request. Id. at 632-33. Section 102 of the RTKL defines a "record" as "[flnformation, regardless of physical f6rin or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency." 65 P.S. § 67.102. Section 305(a) of the RTKL provides that "[a] record 7 in the possession of a . . . local agency shall be presumed to be a public record." 65 P.S. § 67.305(a). Applying these provisions, this Court held that records of an individual commissioner were not necessarily records of the township because the commissioner did not, himself, have the 'authority to act on behalf of the township. In re Silberstein, 11 A.3d at 633. "[U]nless the emails and other documents in Commissioner Silberstein's possession were produced with the authority of York Township, as a local agency, or were later ratified, adopted or confirmed by York Township, said requested records cannot be deemed 'public records' within the meaning of the RTKL . . . ... Id. Thus, this Court held that these records were not subject to disclosure. Id. at 634. Later, in Mollick this Court distinguished In re Silberstein when confronted with a request for emails that might have been transmitted between a majority of the Worcester Township's three supervisors. Mollick, 32 A.3d at 872. Referring to the same provisions of the RTKL referenced above, this Court held that the key question in determining whether an email was a public record was whether it documented business of the township, not whether it was transmitted using a township computer or email address: regardless of whether the Supervisors herein uti zed personal computers or personal email accounts, if two or more of the Township Supervisors exchanged emails that document a transaction or activity of the Township and that were created, received, or retained in connection with a transaction, business, or activity of the Township, the Supervisors may have been acting as the Township, and those emails could be "records" "of the Township." Id. Citing Section 901 of the RTKL, which provides that in response to a request for records, "an agency shall make a good faith effort to determine if the record 8 requested is a public record . . . and whether the agency has possession, custody or control of the identified record," 65 P.S. § 67.901, this Court held that the township's open records officer was required to inquire of the supervisors whether they were in possession of the requested emails. Mollick, 32 A.3d at 874 (citing In re Silberstein,, 11 A.3d at 633-34). The factual question of whether the records were in the possession, custody, or control of the township by virtue of being in the possession of its supervisors was a matter which this Court remanded to the township's open records officer. Id. at 875. Finally, in Barkeyyille, this Court further-clarified the duties of an agency with respect to agency records in the possession of individuals. In BarkMille, the borough at issue told a requestor that it did not have any responsive records to a request for emails between borough council members when it searched the records in its possession and received no response from the council members when the open records officer asked the council members if they possessed such correspondence. Barkewille, 35 A.3d at 93. This Court held that the key question at issue was not whether the emails were in the borough's physical possession, but whether they were subject to the borough's control. Id. at 96. Thus, pursuant to Section 901 and Barkeyyille, when an open records officer receives a request for records, he or she must make a good faith effort to determine whether: (1) the record is a public record; and (2) the record is in the possession, custody, or control of the agency. In Barkeyville and Mollick this Court held that a record is in the control or constructive possession of an agency when it is in the possession of one of the agency's officials. Barkeyville, 35 A.3d at 96, Mollick,, 32 A.3d at 874-75. 9 In this case, the Township has established that the email is not in its possession, custody, or control. Requestor argues that the email is in the Township's control merely because Mr. Livingston has averred that he would provide it to Requestor at the Township's request. However, in the context of discovery, the Superior Court has held that documents in the possession of the former employees of a party are not in the "possession, custody, or control" of the party. Barley v. Consolidated Rail Corporation, 820 A.2d. 740, 744-45 (Pa. Supef. 2003) (quoting Pa. R.C.P. No. 234, defining a subpoena as "an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the ,possession, custody or control of that person." (emphasis added)). Requestor has not demonstrated that Mr. Livingston would have any duty to turn over the requested email and a holding finding such email in the agency's control raises the question of how an agency would compel such cooperation by persons no longer associated with it. As the Superior Court noted in Barley, ordering a party to produce documents in the possession of a non-party- raises the question, "what is to stop the non[-]parties from ignoring the discovery order with impunity?" Id. at 744. Because the email at issue here is not in the Township's possession, custody, or control, and is not in the possession of' a party who has been shown to be contracted by the Township to perform a governmental function, the Township has no obligation under the RTKL to obtain or disclose the email. Finally, we address Requestor's argument that, because the Township has established a practice of seeking records from former employees and officials in other 'I cases, it may not I pick and choose not when to make such inquiries. 10 Requestor points out that the Township inquired of its former solicitor whether he had the requested email at issue in this appeal in response to a prior RTKL requeSt.6 We first note that the record in this matter contains evidence of, at most, only two instances' in which the Township has sought records from former officials or employees; we do not believe this is sufficient to show an established practice of seeking records from former employees or officials. Moreover, while the RTKL does not require the Township to seek requested documents from former employees or officials, nor does it forbid it. Requestor points to no authority for his assertion that, because the Township has done so in a limited number of prior cases, it must continue to do so in perpetuity. We, therefore, reject this argument. For these reasons, we affirm the Order of the trial court! RIEAE COHN 3 UB&IRER, Judge' 6 We point out that a solicitor, as an attorney, may have continuing duties to an agency as a former client even after his representation of the agency ends. For example, a solicitor who retains records of an agency after the conclusion of his representation may have duties to supply such information to the agency upon request that a former official or employee would not have. 'Thus, this example does not necessarily support Requestor's position. 7 Requestor also points to an email from the ORO to certain individuals inquiring whether they are in possession of certain emails in response to a RTKL request. (Email from ORO, (May 20, 2011), R.R. at 74a.) It is not clear from the email, however, whether these individuals are current or former employees or officials of the Township. 8 Due to our holding on this issue, we do not reach Requestor's argument that he should be awarded attorney's fees. Section 1304 of the RTKL, 65 P.S. § 67.1304, only permits the award of attorney's fees where a court reverses an ORO's response or grants access to a record after a request was denied. 11 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Charles Breslin, Appellant V. No. 875 C.D. 2012 Dickinson Township ORDER NOW, May 24, 2013, the Order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. REAE COHN JUBtLIRER, Judge CetNed from the Record MAY 2 4 2013 are!Order Exit supreme (Court of Veuu�ptbauia Irene M.Bi��oso,Esq. 601 Commonwealth Avenue,Suite 4500 Prothonotary Middle District P.O.Box 62575 Elizabeth E.Zisk Harrisburg,PA 17106 Chief Clerk (717)7876181 June 25, 2013 www.pacourts.us RE: Charles Breslin, Petitioner V. Dickinson Township and Pennsylvania Office of Open Records, Respondents No. 450 MAL 2013 Trial Court Docket No: 2011-09255 768 MDA 2012 Commonwealth Docket Number: 875 CD 2012 Appeal Docket No: Date Petition for Allowance of Appeal Filed: June 24, 2013 Disposition: -Q Zz Disposition Date: M a ry Rea rgument/Reconsideration Disposition: -4 z' c, , Reargument/Reconsideration Disposition Date: C--) /hms ' cc: Buell, David D., Prothonotary - supreme (Court of peuuoylbania Amy Dreibelbis,Esq. 601 Commonwealth Avenue,Suite 4500 Deputy Prothonotary Meddle District P.O.Box 62575 Elizabeth E.Lisk Harrisburg,PA 17106 Chief'Clerk (717)787-6181 November 27, 2013 www.pacourts.us Buell, David D. Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 RE: Charles Breslin, Petitioner V. Dickinson Township and Pennsylvania Office of Open Records, Respondents No. 450 MAL 2013 Trial Court Docket No: 2011-09255 768 MDA 2012 Commonwealth Docket Number: 875 CD 2012 -t° _ Appeal Docket No: Date Petition for Allowance of Appeal Filed: June 24, 2013 Disposition: Order Denying Petition for Allowance of Appeal Disposition Date: November 27, 2013 -> Reargument/Reconsideration Disposition: Reargument/Reconsideration Disposition Date: /af IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CHARLES BRESLIN, : No. 450 MAL 2013 Petitioner Petition for Allowance of Appeal from the Order of the Commonwealth Court V. DICKINSON TOWNSHIP AND PENNSYLVANIA OFFICE OF OPEN RECORDS, Respondents ORDER PER CURIAM AND NOW, this 27th day of November, 2013, the Petition for Allowance of Appeal is DENIED. As Of 11/ Elizabeth E. Zisk Attest: Chief Clerk Supreme Court of Pennsylvania r ii -;r r. r Qorurnontueaftb (Court of Venutiptbania Kristen W.Brown Pennsylvania Judicial Center Prothonotary 601 Commonwealth Avenue,Suite 2100 Michael Krimmel,Esq. P.O.Box 69185 Chief Clerk of Commonwealth Court Harrisburg,PA 17106-9185 January 6, 2014 www.pacourts.us CERTIFICATE OF REMITTAL/REMAND OF RECORD TO: David D. Buell Prothonotary RE: Breslin, C. v. Dickinson Twp. 875 CD 2012 , Trial Court: Cumberland County-Court of Common Pleas Trial Court Docket No: 2011-09255 768 MDA 2012 Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2572 is the entire record for the above matter. Original Record contents: 1 Item Filed Date Description trial court record October 22, 2012 1 Remand/Remittal Date: ORIGINAL RECIPIENT ONLY-Please acknowledge receipt by signing,dating,and returning the enclosed copy of this certificate to our office. Copy recipients (noted below) need not acknowledge receipt. Respectfully, / 41 ' Common -aith Court Filing Office 1 ;_ e C C 3 -' 3--- '-'="1 —4� .45 'i' ., Breslin, C. v. Dickinson Twp. January 6, 2014 875 CD 2012 Letter to: Buell, David D. Acknowledgement of Certificate of RemittallRemand of Record(to be returned): Signature Date Printed Name IN THE COMMONWEALTH COURT OF PENNSYLVANIA c -- Charles Breslin, tr, • Appellant (pn w ' <: ?' v. . No 875 C.D. 2012 Township : Argued: March 11, 2013 BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge OPINION BY JUDGE COHN JUBELIRER FILED: May 24, 2013 Charles Breslin (Requestor) appeals from the Order of the Court of Common Pleas of Cumberland County (trial court) that denied Requestor's Petition for Review from the Final Determination of the Office of Open Records (OOR). In its Final Determination, the OOR required Dickinson Township (Township) to inquire of its employees and officials whether they were in possession of a document sought by Requestor, but declined to order the Township to make a similar inquiry of former officials or employees. Requestor argues that, under the Right-to-Know Law (RTKL),' the Township must inquire of former employees and officials ' Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 —67.3104. whether they are in possession of the Township's records, particularly where the Township has established a practice of doing so in response to other requests. On September 29, 2011, Requestor submitted to the Township's Open Records Officer (ORO) his request for "a copy of an email addressing township business currently in the possession of former Township Office Manager Robert Livingston, dated 9 February, 2006, Subject: `Sunshine' [(Request)]. It is my understanding that Mr. Livingston will provide the document upon the township's request." (Request, R.R. at 22a.) On October 7, 2011, the ORO responded that the Request was not sufficiently specific, as required by Section 703 of the RTKL,2 but that the ORO had nonetheless undertaken a search of records in the Township's custody and found no responsive record. (ORO Response at 1-2, R.R. at 24a-25a.) On October 16, 2011, Requestor appealed to the OOR arguing that he had sufficiently identified the record requested and that Mr. Livingston indicated to the Requestor that the Township had not contacted him regarding the email. (Requestor's Appeal to OOR at 2, R.R. at 28a.) Requestor attached to his appeal a notarized declaration from Mr. Livingston, which indicated that the requested email had been copied to his personal email address and that the email, "from the defendant Edward L. Schorpp, Attorney at Law," indicated "that Supervisor Thomas Patterson had no opportunity to vote on the special personnel counsel of Campbell, Durrant and Beatty and that a public vote was taken on February 6, 2 65 P.S. § 67.703. Section 703 provides in pertinent part that a written request for records under the RTKL "should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested." Id. 2 2006, without Patterson's input." (Declaration of Robert O. Livingston, ¶¶ 2, 4, R.R. at 30a.) The OOR invited the parties to submit additional evidence or argument. Requestor submitted a letter explaining the background for his Request and the reasons he believed the Township might have for wishing to deny his Request.' Requestor also argued that documents could be public records even if they were sent and received via officials' private email addresses. (Letter from Requestor to OOR (October 25, 2011) at 5-6, R.R. at 41a-42a.) The Township submitted a letter arguing that the Request was not sufficiently specific because it did not identify the sender or recipient and that, by including more information regarding the record in his appeal to the OOR, Requestor was attempting to improperly refashion his Request on appeal. (Letter from Township to OOR (October 27, 2011) at 2-3, R.R. at 55a-56a.) The Township also stated that, despite the insufficiency of the Request, it had attempted to search for the requested email, found no responsive record in its possession, and did not believe the RTKL required it to seek the record from a former official. (Letter from Township to OOR (October 27, 2011) at 3-4, R.R. at 56a-57a.) 3 From documents included in the filings by Requestor and the Township, it appears that Requestor is the plaintiff in a suit in federal court against the Township. In the course of this federal suit, the Township has objected to Requestor's attempts to elicit testimony from Mr. Livingston and the Township has sought a protective order on the grounds of attorney-client privilege. (Breslin's Br. in Federal Suit at 1, 11, 14, R.R. at 99a-101a; Order of the U.S. District Court for the Middle District of Pa. at 1-2, R.R. at 102a-03a.) However, the Township does not raise this privilege as an exemption to the disclosure of the requested email. In addition, Requestor's co-plaintiff in the federal case attempted to obtain the same email at issue in the current matter through a RTKL request, which the Township denied and which denial the OOR affirmed. This matter dealt with the question of whether the Township had a copy of the requested email, but did not address the issue of whether the Township had a duty to seek the email from former officials. (Final Determination at 9 & n.2); Thompson v. Dickinson Township, OOR Docket No. AP 2011-1150. 3 The OOR issued its Final Determination on November 15, 2011, and granted Requestor's appeal to the extent that the OOR ordered the Township to inquire of current employees and officials as to whether they were in possession of the requested email.4 (Final Determination at 9, R.R. at 71 a.) The OOR held that the requested record was a public record because it documented business of the Township and was allegedly sent among acting Supervisors, who collectively had the authority to act on the Township's behalf. (Final Determination at 8, R.R. at 70a.) The OOR held, however, that the RTKL did not impose any requirement that the Township seek the requested email from former officials or employees. (Final Determination at 9, R.R. at 71a.) Requestor appealed the OOR's Final Determination to the trial court insofar as it did not require the Township to request the email from its former officials or employees. The Requestor also asked the trial court to assess a $1,500 penalty against the Township for denying the email in bad faith. After filings and briefs from the parties, the trial court held argument on Requestor's appeal. The trial court issued its Opinion and Order on March 28, 2012, denying Requestor's appeal and affirming the Final Determination of the OOR. (Trial Ct. Op. at 6.) Acknowledging that Mr. Livingston had expressed a willingness to turn the record over if requested to do so by the Township, the trial court noted that while nothing in the RTKL prohibits an agency from seeking a 4 By letter dated December 14, 2011, the Township's ORO informed Requestor that no responsive records had been found after an inquiry directed to current employees and officials. (R.R. at 96a.) 4 requested record from a former official, nothing in the RTKL requires such a search either. (Trial Ct. Op. at 5.) Requestor now appeals to this Court.5 Before this Court, Requestor argues that the RTKL, along with this Court's precedent, requires an agency to request a public record from a former official of that agency who is in possession of such a record. Requestor argues that the Township has established a policy of seeking requested records from former employees and officials and may not choose not to do so in special cases. Requestor also asks this Court to award him attorney's fees pursuant to the RTKL. We first address Requestor's argument that the RTKL, and this Court's case law, require agencies to contact third parties, including former officials of the agency, in order to locate or obtain public records in response to RTKL requests. Requestor bases this argument on Section 506(d)(3) of the RTKL. Section 506(d) of the RTKL provides: (1) A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act. (2) Nothing in this act shall be construed to require access to any other record of the party in possession of the public record. 5 "This Court's scope of review from a decision of a trial court in a case under the RTKL is `limited to determining whether findings of fact are supported by competent evidence or whether the trial court committed an error of law, or an abuse of discretion in reaching its decision."' Mollick v. Township of Worcester, 32 A.3d 859, 869 n.16 (Pa. Cmwlth. 2011) (quoting Kaplin v. Lower Merion Township, 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth.), petition for allowance of appeal denied, 612 Pa. 693, 29 A.3d 798 (2011)). 5 (3) A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency. Upon a determination that the record is subject to access under this act, the open records officer shall assess the duplication fee established under section 1307(b) and upon collection shall remit the fee to the party in possession of the record if the party duplicated the record. 65 P.S. § 67.506(d). Requestor argues that this provision requires that, when an agency determines that a public record is in the possession of a third party, the agency must contact that party in order to obtain the record. However, in context with the remainder of Section 506(d), Section 506(d)(3) provides a mechanism whereby records obtainable as public records of a party performing a governmental function for an agency under contract may be disclosed under the RTKL through an agency, subject to a copying fee to be remitted to the party. Section 506(d)(1) makes records that directly relate to a governmental function performed on behalf of an agency by a contracted party public records of that agency. The plain language of Section 506(d)(3) does not provide a mandate for disclosure independent of Section 506(d)(1), but instead provides the process or procedure through which records defined as public records by Section 506(d)(1) may be obtained and disclosed. Indeed, this is the context in which this Court has applied Section 506(d) in previous cases. See, e.g., Allegheny County Department of Administrative Services v. Parsons, 61 A.3d 336, 340 (Pa. Cmwlth. 2013) ("Section 506(d) may reach records that are not in an agency's possession, custody or control provided the third party in possession has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function." (first emphasis added)); Buehl v. Office of Open Records, 6 A.3d 27, 30 (Pa. Cmwlth. 2010) ("In order for third-party records to be considered public records of the Department under the RTKL, they must be in the 6 possession of the contracting party and must `directly relate to the governmental function."' (quoting Section 506(d)).). Requestor also argues that this Court's case law interpreting the RTKL requires the Township to seek an email relating to Township business from its former office manager. Requestor asserts that in both Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012), and Mollick v. Township of Worcester, 32 A.3d 859 (Pa. Cmwlth. 2011), this Court held that it is the nature of emails that determines whether they must be disclosed, regardless of whether the emails were received or transmitted using officials' personal email accounts. In order to address this argument, an examination of these cases is required. This is the latest in a line of cases dealing with the circumstances under which records in the possession of an individual must be disclosed under the RTKL as public records of an agency. In In re Silberstein, 11 A.3d 629, 630 (Pa. Cmwlth. 2011), this Court was faced with an appeal involving a denial by York Township for emails on a township commissioner's personal computer that were sent between the commissioner and any citizen of York Township. In resolving this issue, our Court looked to the provisions of the RTKL defining a "record" for the purposes of the RTKL and delineating the duties of an agency in response to a request. Id. at 632-33. Section 102 of the RTKL defines a "record" as "[i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency." 65 P.S. § 67.102. Section 305(a) of the RTKL provides that "[a] record 7 in the possession of a . . . local agency shall be presumed to be a public record." 65 P.S. § 67.305(a). Applying these provisions, this Court held that records of an individual commissioner were not necessarily records of the township because the commissioner did not, himself, have the authority to act on behalf of the township. In re Silberstein, 11 A.3d at 633. "[U]nless the emails and other documents in Commissioner Silberstein's possession were produced with the authority of York Township, as a local agency, or were later ratified, adopted or confirmed by York Township, said requested records cannot be deemed `public records' within the meaning of the RTKL . . . ." Id. Thus, this Court held that these records were not subject to disclosure. Id. at 634. Later, in Mollick, this Court distinguished In re Silberstein when confronted with a request for emails that might have been transmitted between a majority of the Worcester Township's three supervisors. Mollick, 32 A.3d at 872. Referring to the same provisions of the RTKL referenced above, this Court held that the key question in determining whether an email was a public record was whether it documented business of the township, not whether it was transmitted using a township computer or email address: regardless of whether the Supervisors herein utilized personal computers or personal email accounts, if two or more of the Township Supervisors exchanged emails that document a transaction or activity of the Township and that were created, received, or retained in connection with a transaction, business, or activity of the Township, the Supervisors may have been acting as the Township, and those emails could be "records" "of the Township." Id. Citing Section 901 of the RTKL, which provides that in response to a request for records, "an agency shall make a good faith effort to determine if the record 8 requested is a public record . . . and whether the agency has possession, custody or control of the identified record," 65 P.S. § 67.901, this Court held that the township's open records officer was required to inquire of the supervisors whether they were in possession of the requested emails. Mollick, 32 A.3d at 874 (citing In re Silberstein, 11 A.3d at 633-34). The factual question of whether the records were in the possession, custody, or control of the township by virtue of being in the possession of its supervisors was a matter which this Court remanded to the township's open records officer. Id. at 875. Finally, in Barkeyville, this Court further clarified the duties of an agency with respect to agency records in the possession of individuals. In Barkeyville, the borough at issue told a requestor that it did not have any responsive records to a request for emails between borough council members when it searched the records in its possession and received no response from the council members when the open records officer asked the council members if they possessed such correspondence. Barkeyville, 35 A.3d at 93. This Court held that the key question at issue was not whether the emails were in the borough's physical possession, but whether they were subject to the borough's control. Id. at 96. Thus, pursuant to Section 901 and Barkeyville, when an open records officer receives a request for records, he or she must make a good faith effort to determine whether: (1) the record is a public record; and (2) the record is in the possession, custody, or control of the agency. In Barkeyville and Mollick this Court held that a record is in the control or constructive possession of an agency when it is in the possession of one of the agency's officials. Barkeyville, 35 A.3d at 96, Mollick, 32 A.3d at 874-75. 9 In this case, the Township has established that the email is not in its possession, custody, or control. Requestor argues that the email is in the Township's control merely because Mr. Livingston has averred that he would provide it to Requestor at the Township's request. However, in the context of discovery, the Superior Court has held that documents in the possession of the former employees of a party are not in the "possession, custody, or control" of the party. Barley v. Consolidated Rail Corporation, 820 A.2d 740, 744-45 (Pa. Super. 2003) (quoting Pa. R.C.P. No. 234, defining a subpoena as "an order of the court commanding a person to attend and testify at a particular time and place. It may also require the person to produce documents or things which are under the possession, custody or control of that person." (emphasis added)). Requestor has not demonstrated that Mr. Livingston would have any duty to turn over the requested email and a holding finding such email in the agency's control raises the question of how an agency would compel such cooperation by persons no longer associated with it. As the Superior Court noted in Barley, ordering a party to produce documents in the possession of a non-party raises the question, "what is to stop the non[-]parties from ignoring the discovery order with impunity?" Id. at 744. Because the email at issue here is not in the Township's possession, custody, or control, and is not in the possession of a party who has been shown to be contracted by the Township to perform a governmental function, the Township has no obligation under the RTKL to obtain or disclose the email. Finally, we address Requestor's argument that, because the Township has established a practice of seeking records from former employees and officials in other cases, it may not pick and choose not when to make such inquiries. 10 Requestor points out that the Township inquired of its former solicitor whether he had the requested email at issue in this appeal in response to a prior RTKL request.' We first note that the record in this matter contains evidence of, at most, only two instances' in which the Township has sought records from former officials or employees; we do not believe this is sufficient to show an established practice of seeking records from former employees or officials. Moreover, while the RTKL does not require the Township to seek requested documents from former employees or officials, nor does it forbid it. Requestor points to no authority for his assertion that, because the Township has done so in a limited number of prior cases, it must continue to do so in perpetuity. We, therefore, reject this argument. For these reasons, we affirm the Order of the trial court.' frAcA &Zits Ideltot.t..e. RE E COHN JUBJ IRER, Judge 6 We point out that a solicitor, as an attorney, may have continuing duties to an agency as a former client even after his representation of the agency ends. For example, a solicitor who retains records of an agency after the conclusion of his representation may have duties to supply such information to the agency upon request that a former official or employee would not have. Thus, this example does not necessarily support Requestor's position. ' Requestor also points to an email from the ORO to certain individuals inquiring whether they are in possession of certain emails in response to a RTKL request. (Email from ORO, (May 20, 2011), R.R. at 74a.) It is not clear from the email, however, whether these individuals are current or former employees or officials of the Township. 8 Due to our holding on this issue, we do not reach Requestor's argument that he should be awarded attorney's fees. Section 1304 of the RTKL, 65 P.S. § 67.1304, only permits the award of attorney's fees where a court reverses an ORO's response or grants access to a record after a request was denied. 11 , ,. E COMMONWEALTH COURT OF PENNSYLVANIA Charles Breslin,I NTi I ,t- Appellant -73-- • mu) ---- r7.- --- 1-r; I,. 1- • -°‘ v. • No 875 C.D. 2012 ....<17.--- co • .,:,t Dic • kinson Township - . -.. ORDER NOW, May 24, 2013, the Order of the Court of Common Pleas of Cumberland County in the above-captioned matter is hereby AFFIRMED. .64., ttlite&A.c.t.. REN E COHN JUBIIRER, Judge REN ---.: