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Home My WebLink About2011-9255 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 e-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 prohibit former officials as to whether they possess records, the Right-To-Know Law does not 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 th 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, _______________________________ Kevin A. Hess, P. J. Cindy L. Villanella, Esquire For the Petitioner Susan J. Smith, Esquire For Dickinson Township Pennsylvania Office of Open Records Commonwealth Keystone Building th 400 North Street, 4 Floor Harrisburg, PA 17120-0225 6 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 th 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, _______________________________ Kevin A. Hess, P. J. Cindy L. Villanella, Esquire For the Petitioner Susan J. Smith, Esquire For Dickinson Township Pennsylvania Office of Open Records Commonwealth Keystone Building th 400 North Street, 4 Floor Harrisburg, PA 17120-0225 7