Opinion
No. 967 C.D. 2014
04-10-2015
Denis F. Sheils, Petitioner v. Pennsylvania Department of Education and Pennsbury School District, Respondents
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Denis F. Sheils (Sheils) petitions for review of the Office of Open Records' (OOR) final determination denying his request for records under the Right-to-Know Law (RTKL). For the reasons stated below, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
On February 28, 2014, Sheils submitted a RTKL request to the Pennsylvania Department of Education (Department), containing 29 separately numbered requests for documents generally related to child abuse investigations in the Pennsbury School District (District). The request included the following records:
Sheils submitted an identical request to the District, which was also denied by OOR. That denial is currently on appeal before the Court of Common Pleas of Bucks County.
3. All documents pertaining to any reports of child abuse made by any school teacher, counselor, psychologist or employee within the last seven (7) years;(Reproduced Record (R.R.) 11a-16a.)
. . . .
14. All documents pertaining to any reports of child abuse made by any school teacher, counselor, psychologist or employee made within the last seven years against those of the male gender, including, but not limited to, the number of such reports;
. . . .
26. The curriculum vitae [(CVs)] of [24 specific] school teachers, counselors, psychologists or employees of the [District];
. . . .
28. Identify the home and mailing addresses of the [same 24] school teachers, counselors, psychologists or employees of the [District].
The Department denied Sheils' request in its entirety, stating that it did not possess the requested records, and that those it did possess were exempt from disclosure. Specifically, the Department stated that to the extent it possessed documents responsive to requests numbers 3 and 14, those documents were exempt from disclosure for three reasons: (1) the documents were not public records because they were considered confidential under the Child Protective Services Law (CPSL); (2) the documents were records relating to a non-criminal or criminal investigation; and (3) the documents identified the name, home address, or date of birth of a child seventeen years of age or younger. As to request number 26, the Department stated that it did not have the requested documents in its possession or under its custody or control. Finally, as to request number 28, the Department stated that it was "prohibited from releasing the home addresses of public school employees" because this Court "held there was credible testimony that it is more likely than not that disclosing the home addresses of public school employees is reasonably likely to result in substantial and demonstrable physical harm to the employees." (R.R. 19a.)
Sections 708(b)(16)-(17) of the RTKL, 65 P.S. § 67.708(b)(16)-(17) (exempting from disclosure records relating to a criminal or non-criminal investigation).
Section 708(b)(30) of the RTKL, 65 P.S. § 67.708(b)(30) (exempting from disclosure documents identifying the name, home address, or date of birth of a child seventeen years of age or younger).
The Department is referencing the single-judge Order and Opinion issued in Pennsylvania State Education Association ex rel. Wilson v. Department of Community & Economic Development, No. 396 M.D. 2009 (Pa. Cmwlth., filed March 25, 2014) (PSEA Order), and Section 708(b)(1)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii). The PSEA Order clarified the July 28, 2009 preliminary injunction issued in the case, which stayed the release of public school employee's home addresses and enjoined OOR from ordering the release of public school employee's home addresses.
Sheils appealed the denial to OOR. Both parties were invited to supplement the record. The Department submitted a sworn affidavit from Karen Feuchtenberger, Senior Assistant Counsel to the Department. Ms. Feuchtenberger attested that "[t]o the best of [her] knowledge and after a reasonable search for records responsive to Mr. Sheils['] request, [the Department] does not have in its possession, or under its custody or control any records responsive to [request number 26]." (R.R. 59a.) In its position statement, the Department again argued that any documents it possessed responsive to requests numbers 3 and 14 were exempt from disclosure pursuant to the CPSL and Sections 708(b)(16) and (17) of the RTKL. The Department also argued that to the extent Sheils sought information about the Department's or District's investigation of an employee who made a report of child abuse, the records were exempt under the Educator Discipline Act (EDA), which provides for the confidentiality of all information relating to any educator discipline unless or until discipline other than a private reprimand is imposed. As for the remaining disputed request, number 28, the Department reiterated its reliance on the PSEA Order, and argued that the same personal security risks precluded the Department's release of the home addresses under Section 708(b)(1)(ii) of the RTKL.
On appeal to OOR, Sheils challenged the denial of only seven requests, numbers 3, 12, 13, 14, 22, 26, and 28. In his petition before this Court, Sheils challenges the denial of only four requests, numbers 3, 14, 26 and 28. We will, therefore, discuss only those requests challenged before this Court.
Act of December 12, 1973, P.L. 397, as amended, 24 P.S. §§ 2070.1a-.18c.
Section 17b(a) of the EDA, 24 P.S. § 2070.17b(a).
65 P.S. § 67.708(b)(1)(ii) (exempting from disclosure any record which "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual").
The District requested to participate in the appeal, and OOR granted its request. The District submitted an affidavit from Cheryl Morett, Director of Special Education for the District. Ms. Morett attested that "both [she] and other [D]istrict employees have been subject to unfounded and personal verbal attacks by Mr. Sheils" during a separate, ongoing legal dispute, that the addresses requested by Sheils belong to District employees involved in the ongoing dispute, and that "[t]here is a concern for the safety and risk of harm to those employees mentioned in Paragraph 28 of the RTK[L] request based on [the] contentious nature of the litigation and Mr. Sheils' behavior and demeanor toward District employees." (R.R. 90a.) The District also submitted a position statement joining the Department's arguments as to why the records for numbers 3, 14, and 24 should be exempt.
Sheils submitted no supplemental documents and no party requested a hearing before OOR. OOR denied Sheils' appeal, concluding that numbers 3 and 14 were exempt from disclosure under the CPSL, that Ms. Feuchtenberger's affidavit was sufficient to establish documents responsive to request number 26 did not exist, and that the Section 708(b)(1)(ii) of the RTKL protected the home addresses requested in number 28.
On appeal to this Court, Sheils challenges the denial of requests numbers 3, 14, 26, and 28. Sheils also argues that he should be permitted to supplement the record before this Court, and that OOR violated his constitutional and civil rights.
On appeal from OOR in a RTKL case, this Court's standard of review is de novo and our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
We will first address Sheils' argument that he should be permitted to expand and supplement the record before this Court. It is true that this Court has the authority to supplement the record in order to fulfill its statutory duty under the RTKL. Bowling, 75 A.3d at 476. Sheils, however, has failed to develop his argument. The single paragraph in his argument section does nothing more than state his desire to supplement the record and identify the documents he contemplates submitting. Critically, Sheils offers no reason why this Court should permit him to supplement the record at this time, when he did not take advantage of the opportunity to submit any supplemental documents to OOR. Furthermore, we find the record currently before this Court to be sufficient for appellate review. We, therefore, decline Sheils' invitation to supplement the record.
In his reply brief, Sheils appears to argue that this Court is required, under Bowling, to give him a hearing in order to expand the record before the Court. This, however, is a mischaracterization of Bowling. Bowling held that this Court is required to conduct a de novo review of OOR's decision and that, pursuant to such a review, this Court has the authority to expand the record. Bowling, 75 A.3d at 474, 476. What Bowling did not do, however, is mandate that this Court expand the record or hold a hearing. Rather, Bowling specifically allowed for the adoption by this Court of OOR's findings of fact and conclusions of law. Id. at 474.
The purpose of the RTKL is to provide citizens with access to public records. Bowling, 75 A.3d at 455. Under the RTKL, a record in the possession of a Commonwealth or local agency is presumed to be a public record unless it is: (1) exempt under Section 708 of the RTKL; (2) protected by privilege; or (3) exempt from disclosure under any other Federal or State law. Office of the Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. 2013) (en banc) (citing Section 305(a) of the RTKL, 65 P.S. § 67.305(a)). The agency bears the burden of proving a record does not exist or is exempt from disclosure. Hodges v. Dep't of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011).
Requests numbers 3 and 14 sought "all documents pertaining to any reports of child abuse" made by any District employee within the last seven years. (R.R. 11a-12a.) OOR concluded that the records sought in these requests were protected by the CPSL. The CPSL provides for the confidentiality of the information contained in the statewide database, as well as child abuse reports generally, and strictly limits access to and disclosure of this information. See Sections 6335 and 6339 of the CPSL, 23 Pa. C.S. §§ 6335, 6339. The broadest of these is Section 6339 of the CPSL, which states:
Except as otherwise provided in this subchapter or by the Pennsylvania Rules of Juvenile Court Procedure, reports made pursuant to this chapter, including, but not limited to, report summaries of child abuse and reports made pursuant to section 6313 (relating to reporting procedure) as well as any other information obtained, reports written or photographs or X-rays taken concerning alleged instances of child abuse in the possession of the [Department of Human Services (DHS)] or a county agency shall be confidential.23 Pa. C.S. § 6339. Thus, under Section 6339 of the CPSL not only are reports of child abuse confidential, so is "any other information obtained . . . concerning alleged instances of child abuse." Id. Section 6340 allows for limited disclosure of child abuse reports and the information contained therein to specified persons and agencies and requires that some persons and agencies receive only limited information. 23 Pa. C.S. § 6340. The records Sheils requests, therefore, are confidential under the CPSL unless Sheils is entitled to receive it under Section 6340 of the CPSL.
Sheils does not argue he is entitled to the documents he requests in numbers 3 and 14 under Section 6340. Nothing in the CPSL suggests that Sheils would be entitled to the requested documents if he sought them directly from the DHS, with the exception of reports in which he is the "subject of the report," as defined in the CPSL. We, therefore, conclude that to the extent Sheils seeks documents or reports wherein he is not the subject of the report as defined in the CPSL, the documents Sheils requested in numbers 3 and 14 are exempt from disclosure under the CPSL, and, therefore, are also exempt from disclosure under the Section 305(a)(3) of the RTKL.
A "subject of the report" is "[a]ny child, parent, guardian or other person responsible for the welfare of a child or any alleged or actual perpetrator in a report made to [DHS] or a county agency under [the CPSL]." Section 6303 of the CPSL, 23 Pa. C.S. § 6303.
Furthermore, to the extent that any of the requested records would not be exempted from disclosure under Section 305(a)(3), these records are exempt under Sections 708(b)(16)-(17) of the RTKL, as reports of child abuse made by a District employee are records pertaining to criminal or non-criminal investigations. Under Section 708(b)(16) of the RTKL, "if a record, on its face, relates to a criminal investigation, it is exempt under the RTKL." Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth.) (per curiam) (citing Coley v. Philadelphia Dist. Attorney's Office, 77 A.3d 694, 697 (Pa. Cmwlth. 2013)), appeal denied, 97 A.3d 745 (Pa. 2014). Here, Sheils has requested "all documents pertaining to any reports of child abuse" made by a District employee. Thus, to the extent that the requested documents relate to reports that were investigated as criminal matters under Section 6334.1 of the CPSL, they are exempt under Section 708(b)(16) as documents which would reveal the institution of a criminal investigation, as well as documents that contain complaints of potential criminal conduct.
Whether the report is investigated as a non-criminal matter by the county agency or as a criminal matter by local law enforcement depends on the behavior alleged and the person allegedly committing the abuse. Section 6334.1 of the CPSL, 23 Pa. C.S. § 6334.1.
Section 708(b)(16) of the RTKL exempts, in pertinent part:
A record of an agency relating to or resulting in a criminal investigation, including:
(i) Complaints of potential criminal conduct other than a private criminal complaint.
(ii) Investigative materials, notes, correspondence, videos and reports.
(iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised.
(iv) A record that includes information made confidential by law or court order.
(v) Victim information, including any information that would jeopardize the safety of the victim.
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. . . .
Section 708(b)(17) of the RTKL exempts records relating to a non-criminal investigation. This Court has defined a non-criminal investigation as "a systematic or searching inquiry, a detailed examination, or an official probe" that is not criminal in nature. Pa. Pub. Util. Comm'n v. Gilbert, 40 A.3d 755, 759 (Pa. Cmwlth. 2012). In this case, "whether the requested records are covered by [S]ection 708(b)(17) of the [RTKL] can be determined by comparing the language of the request itself with the language of [S]ection 708(b)(17)." Id. at 760-61. A report of child abuse made by a school employee, and any documents relating to such a report, would "[r]eveal the institution, progress or result of an agency investigation." Section 708(b)(17)(vi)(A) of the RTKL. Furthermore, such documents include "information made confidential by law," as discussed above. Finally, we note that none of the exceptions listed in Section 708(b)(17)(vi)(A), which would be subject to disclosure, apply here, as the requested records are generated by the Department and/or District, neither of which is the agency responsible for investigating the report under Section 6334.1 of the CPSL. See Gilbert, 40 A.3d at 762 (explaining that Section 708(b)(17)(vi)(A) exceptions did not apply on their face because requested records were generated by department without authority to make final determination or impose penalties/fines).
Section 708(b)(17) of the RTKL exempts, in pertinent part:
A record of an agency relating to a noncriminal investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence and reports.
. . .
(iv) A record that includes information made confidential by law.
. . .
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court. . . .
Sheils argues that OOR erred in denying requests 3 and 14 because the Commonwealth has an implicit obligation to investigate false reports of child abuse, and any privacy concerns could be allied by redacting sensitive information. First, we note that Sheils' requests are not limited to false reports of child abuse. Second, assuming Sheils is arguing that the Commonwealth is obligated to investigate persons who make false reports of child abuse, it would not change the decision in this case, as any record generated by such an investigation would be exempt from disclosure as the records of a criminal investigation under Section 708(b)(16) of the RTKL.
Intentionally or knowingly making a false report of child abuse is a misdemeanor under the Crimes Code. 18 Pa. C.S. § 4906.1 ("A person commits a misdemeanor of the second degree if the person intentionally or knowingly makes a false report of child abuse under [the CPSL] or intentionally or knowingly induces a child to make a false claim of child abuse under [the CPSL].").
Furthermore, under the RTKL redaction is an appropriate remedy only when a public record also contains information not subject to disclosure. Section 706 of the RTKL, 65 P.S. § 67.706. A document is not a public record, however, if it is exempt under Section 708 of the RTKL, is exempt from disclosure under any other Federal or State law, or is protected by a privilege. Section 102 of the RTKL, 65 P.S. § 67.102; Section 305(a) of the RTKL. Because the records requested in numbers 3 and 14 are exempt from disclosure under Sections 305(a)(3) and 708(b)(16)-(17) of the RTKL, they are not considered public records and, therefore, are not subject to redaction and release under Section 706 of the RTKL. See Saunders v. Dep't of Corr., 48 A.3d 540, 543 (Pa. Cmwlth. 2012) (holding that department was not required to redact and release documents because Section 706 of the RTKL applies only to public records, and requested documents were not public records because they were exempt from disclosure under Section 708 of the RTKL).
Request number 26 sought the CVs of 24 District employees. OOR denied the request because the Department established that the requested records did not exist. It is well established that "an agency may satisfy its burden of proof that it does not possess a requested record with either an unsworn attestation by the person who searched for the record or a sworn affidavit of nonexistence of the record." Hodges, 29 A.3d at 1192. Here, the Department submitted an unsworn attestation from Ms. Feuchtenberger stating that she searched for the records requested in number 26, and that the Department did not have in its possession, or under its custody or control, any records responsive to request number 26. (R.R. 59a.) Thus, Ms. Feuchtenberger's attestation is sufficient to satisfy the Department's burden of proof that it does not possess the CVs requested by Sheils, and OOR did not err in denying the request. See Hodges, 29 A.3d at 1192.
Sheils asserts that Bowling has called into question this Court's line of cases, including Hodges, which allows an agency to establish the nonexistence of a record with either an unsworn attestation or a sworn affidavit. This, however, is mischaracterization of Bowling, which dealt exclusively with the question of what standard and scope of review this Court is to apply when reviewing a final determination of OOR and does not ever address, even obliquely, the appropriateness of using attestations and affidavits to establish the nonexistence of a record.
Sheils argues that OOR's decision with respect to request number 26 should be overturned because the Department acknowledges that it has biographical and employment information for the 24 District employees. Sheils argues the Department is placing form over substance and should be required to produce the educational and employment histories of the 24 named District employees, even though the Department does not have that information in the form of a CV. Sheils, however, did not request the educational and employment histories of 24 District employees; rather, he requested the CVs of 24 District employees. This Court has held that "where a requestor requests a specific type of record . . . the requestor may not, on appeal, argue that an agency must instead disclose different records in response to the request." Michak v. Dep't of Pub. Welfare, 56 A.3d 925, 930 (Pa. Cmwlth. 2012), appeal denied, 74 A.3d 128 (Pa. 2013). The Department has satisfied its burden to establish it does not have the CVs of the 24 employees, and the fact that the Department has the kind of information typically contained in a CV does not obligate the Department to compile CVs of the 24 District employees for Sheils. See Section 705 of the RTKL, 65 P.S. § 67.705 ("When responding to a request for access, an agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.").
Request number 28 sought the home addresses of 24 District employees, the same employees identified in request number 26. OOR denied the request, finding that Section 708(b)(1)(ii) of the RTKL applied to the request: "Based upon [Sheils'] pattern of threatening[] and abusive statements directed at District employees, releasing the employees' home and mailing addresses is reasonably likely to result in substantial and demonstrable risk to their personal security." (R.R. 8a.)
65 P.S. § 67.708(b)(1)(ii).
Section 708(b)(1)(ii) of the RTKL, frequently referred to as the "personal security exception," provides that a record which "would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual" is exempt from disclosure. The personal security exception embraces two distinct ideas — the risk of physical harm and the risk to one's personal security. Delaware Cnty. v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149, 1154 (Pa. Cmwlth. 2012) (en banc). Thus, the threat of physical harm is not a prerequisite to the applicability of the personal security exception. Id. at 1155.
"[T]here is no one, fixed definition of 'personal security' that our Courts have consistently applied to determine whether information must be deemed to be public." Id. Accordingly, the personal security exception has been interpreted "to comprise innumerable rights, including the right to privacy and confidentiality, and the right to be secure in one's possessions, monies, investments and benefits, and the freedom from identity theft." Id. The agency bears the burden of establishing, by a preponderance of the evidence, that a record is exempt from disclosure. Section 708 of the RTKL, 65 P.S. § 67.708(a). A preponderance of the evidence standard is the lowest evidentiary standard and is tantamount to a more likely than not inquiry. Schaefer, 45 A.3d at 1156. "To establish this exception, an agency must show: (1) a 'reasonable likelihood' of (2) 'substantial and demonstrable risk' to an individual's security if the information sought is not protected." Carey v. Dep't of Corr., 61 A.3d 367, 373 (Pa. Cmwlth. 2013). Substantial and demonstrable is defined as "actual or real and apparent." Id.
In this case, the Department and the District both asserted that the home addresses of the 24 District employees were exempt under the personal security exception. In support of their argument, the Department and District submitted the sworn affidavit of Ms. Morett. As discussed above, Ms. Morett attested that Sheils' past behavior has resulted in "a concern for the safety and risk of harm" to District employees if Sheils receives the requested home addresses. (R.R. 90a.) Thus the evidentiary record before OOR and this Court establishes that: (1) Sheils and the District are involved in a separate, ongoing legal dispute; (2) during this litigation, Sheils made "unfounded and personal verbal attacks" on the District employees involved in the litigation; (3) Sheils now seeks the home addresses of those same District employees; and (4) there is a concern that, if released, Sheils will use that information to continue his abusive behavior towards the District employees. We agree, therefore, that the Department has established it is more likely than not that giving the District's employees' home addresses to Sheils would result in a substantial and demonstrable risk to the employees' personal security.
We note that the Department and District both argue that the home addresses are exempt from disclosure under the PSEA Order, which placed a blanket prohibition on the release of employee home addresses by school districts. OOR, however, did not rely upon the PSEA Order, but instead relied upon Ms. Morett's affidavit to conclude the home addresses were exempt under the personal security exception. Because we agree that the addresses are exempt under the personal security exception, we need not address the parties' arguments concerning the PSEA Order.
Sheils argues that OOR's decision should be reversed because there is no right to privacy in one's home address. It is true that this Court has held there is no constitutional right to privacy in one's home address. Raffle, 65 A.3d at 1109. It is equally true, however, that the lack of a constitutionally protected right to privacy in a home address does not preclude the possibility that a home address would be protected by the personal security exception. See Office of the Lieutenant Governor v. Mohn, 67 A.3d 123, 131-32 (Pa. Cmwlth. 2013) (en banc) (holding there is no constitutional right to privacy in home addresses but still considering whether requested addresses were exempt from disclosure under personal security exception); Raffle, 65 A.3d at 1109 (acknowledging lack of privacy in home addresses and considering whether requested addresses were exempt under personal security exception).
Furthermore, this case is distinguishable from Mohn and Raffle in which this Court held that the affidavits submitted were insufficient to prevent the disclosure of home addresses under the personal security exception. In both of those cases the agency submitted an affidavit which stated that disclosure of home addresses would increase the risk of identity theft. The Court found that
the affidavit contains no actual evidence that the disclosure of home addresses is reasonably likely to result in identity theft, and fails to demonstrate even a correlation between the disclosure of home addresses and an increased likelihood of identity theft. To the contrary, the affidavit indicates that identity theft only occurs after the identity thief has taken additional steps to contact the victim, gain the victim's trust and convince the victim into disclosing truly confidential information.Mohn, 67 A.3d at 132; Raffle, 65 A.3d at 1109 (noting substantial similarity between affidavits in Raffle and Mohn and adopting Mohn's rationale); see also Schaefer, 45 A.3d at 1158 (holding that "[a] general reference to a report which ostensibly explains how identity thieves use home addresses and dates of birth to perpetrate new financial account fraud is not sufficient" to prevent disclosure of home addresses under personal security exception). Here, we do not have an affidavit asserting a generalized concern shared by most people, i.e., identity theft, but rather an affidavit asserting a concern specific to the people named based upon Sheils' past abusive behavior towards those same people. OOR was correct, therefore, to deny Sheils' request for the home addresses of 24 District employees.
We note that this Court recently issued an opinion addressing the release of home addresses and the personal security exception. In Pennsylvania State Education Association ex rel. Wilson v. Department of Community & Economic Development, ___ A.3d ___ (Pa. Cmwlth., No. 396 M.D. 2009, filed February 17, 2015) (PSEA) (en banc), this Court held that the
lack of procedural due process prior to granting access to a record essentially eviscerates the General Assembly's intent to protect an individual from the risk of personal harm or risk to his or her personal security that may occur by the disclosure of such a record. Accordingly, this lack of due process violates the statutory scheme of the RTKL. As such, we declare that an agency, as defined in the RTKL, is prohibited from granting access to an individual's personal address information without first notifying the affected individual and providing that affected individual with an opportunity to demonstrate that disclosure of the requested information should be denied pursuant to the personal security exception as set forth in Section 708(b)(1)(ii) of the RTKL. We further declare that . . . OOR is prohibited from granting access to personal address information of an individual who objected to the disclosure of such information pursuant to the personal security exception set forth in Section 708(b)(1)(ii) of the RTKL without first permitting that individual to intervene as of right in an appeal from an agency's denial of a requester's request for access to such information.
Finally, Sheils argues that OOR's finding that he engaged in a "pattern of threatening[] and abusive statements directed at District employees" was "intentionally calculated to chill the exercise of [his] free speech," and that it deprived him of his due process rights because OOR did not conduct a hearing or review transcripts from the other litigation. (Pet'r Br. at 21.) First, as to the free speech argument, we note that Sheils offers no argument or explanation for how OOR's finding was intended to chill his exercise of free speech. We find no support for this proposition in the record and are unpersuaded by Sheils' bald assertion. Second, as to the due process argument, we note once again that although Sheils had the opportunity to submit to OOR any evidence he wished to have considered, Sheils did not avail himself of this opportunity to submit transcripts from the other litigation. Furthermore, it is well established that OOR is not required to hold a hearing, and the decision not to hold a hearing is not appealable. Bowling, 75 A.3d at 471 (noting that appeals officers "may, or may not, in their absolute discretion, hold a hearing") (emphasis in original) (citing Sections 1101(b)(3) and 1102(a)(2) of the RTKL, 65 P.S. §§ 67.1101(b)(3), 67.1102(a)(2)). We, therefore, conclude that OOR did not violate Sheils' due process rights.
For the reasons discussed above, the final determination of OOR is affirmed.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 10th day of April, 2015, the final determination of the Office of Open Records is hereby AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge
PSEA, slip op. at 14-16 (footnotes omitted). Although it is clear that at least Ms. Morett, one of the 24 employees named in request number 28, was notified (see R.R. 90a), there is no evidence in the record whether the remaining employees were notified of the request. Because we are not granting access to any of the requested home addresses, however, we need not remand in order for notice and an opportunity to object to be given to each employee.