Opinion
No. 1651 C.D. 2014
01-12-2015
Ryan Bagwell, Petitioner v. Office of Attorney General, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI
Ryan Bagwell (Requestor) petitions, pro se, of a Final Determination of the Commonwealth of Pennsylvania's Office of Attorney General (OAG) denying his request under the Right-to-Know Law (RTKL) for access to an e-mail the Honorable Barry Feudale (Judge Feudale) sent to Frank G. Fina, a copy of which Judge Feudale subsequently provided to H. Geoffrey Moulton (Moulton), whom the Attorney General appointed to internally review the OAG's investigation of Jerry Sandusky, regarding Judge Feudale's criticisms of the OAG's Sandusky investigation, which the OAG declined to disclose because the e- mail falls outside the scope of agency business and is exempt from disclosure pursuant to a judicial order. For the following reasons, we affirm.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
I.
Requestor submitted a RTKL request to the OAG for "all e-mails provided by [Judge] Feudale to [Mr.] Moulton as part of Mr. Moulton's review of the [Jerry] Sandusky investigation." (Reproduced Record [R.R.] at 1a.) The request also stated that "one such e-mail was sent by [Judge] Feudale to Frank Fina, and later shared with Mr. Moulton and reporters." (R.R. at 1a.) After informing Requestor that the OAG required an additional 30 days to respond, the OAG's Open Records Officer (Agency Officer) denied the first request, advising that "[a] search for the emails from Judge Barry Feudale to Mr. Moulton was conducted by our agency Information Technology Section ("IT") and records could not be located." (R.R. at 8a.) The Agency Officer also provided Requestor with an Attestation of Non-existence of Record (Affidavit) executed by an OAG agent.
A Philly News article dated July 16, 2013, indicated that Judge Feudale sent an e-mail to Mr. Fina, a former OAG prosecutor, in which he criticized the OAG's investigation of Sandusky. It further stated that Judge Feudale provided a copy of the e-mail to the press and to Mr. Moulton during his internal review and that subsequently, the OAG initiated proceedings before the Pennsylvania Supreme Court to remove Judge Feudale as the supervising grand-jury judge in Dauphin County. As part of its case, the OAG submitted the subject e-mail.
The initial RTKL request also sought "other records obtained by Mr. Moulton during the course of his noncriminal review of the Sandusky investigation," but because Requestor subsequently withdrew that portion of his request, it will not be discussed further. (R.R. at 1a.)
With regard to the specific e-mail requested, the Agency Officer likewise denied the request, explaining that the e-mail did not constitute a "record" for RTKL purposes:
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." [Section 102 of the RTKL,] 65 P.S. §67.102. By way of further explanation, this email was sent from Judge Feudale's private email address to Mr. Fina, at a non-OAG email address after his employment with this agency ended, and falls outside of the scope of agency business. Meguerian v. Office of the Attorney General, 86 A.3d 924 (Pa. Cmwlth. 2013). The email includes, but is not limited to, Judge Feudale's personal opinions and comments, which are inconsequential to agency activities. Without disregarding the above statement and still maintaining the assertion that this email is not a "record," this email does not fit within the definition of a "public record" under the RTKL. This email was appended to the documents submitted to the Pennsylvania Supreme Court concerning the removal of Judge Feudale from his position as the supervising grand jury judge. The Court has sealed said documents and they are not public until such time that the Court directs otherwise. The RTKL states that a "public record" is a document that "[i]s not exempt under section 708; is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or is not protected by a privilege." [Section 305 of the RTKL, 65 P.S. §67.305 (emphasis added)]. As a result, this email is exempt from disclosure.(R.R. at 9a.)
II.
Requestor appealed the decision to the OAG's Right-to-Know Appeals Officer (Appeals Officer), claiming that the subject e-mail constitutes a "record" under Section 102 of the RTKL because "it was received by an OAG employee as he conducted agency business" and because "[i]t 'documents' Mr. Moulton's review of the OAG's Sandusky investigation because it was received by an OAG employee while he conducted OAG business." (R.R. at 16a.) Further, Requestor argued that the OAG failed to provide any evidence that the subject e-mail is exempt from disclosure pursuant to a judicial order or decree.
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. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.65 P.S. §67.102.
The Appeals Officer issued a Final Determination affirming the Agency Officer's decision, finding that the subject e-mail does not constitute a "public record" under the RTKL because it is exempt from disclosure pursuant to a sealing order issued by the Pennsylvania Supreme Court. The Appeals Officer further explained that the sealing order could not be produced because it is part of the docket, the entirety of which was sealed. This appeal followed.
Section 102 of the RTKL defines "public record" as "[a] record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege." 65 P.S. §67.102.
Because the Appeals Officer determined that the e-mail did not constitute a "public record," she found it unnecessary to address whether the e-mail constituted a "record" under the RTKL.
Requestor filed a motion for reconsideration which the Appeals Officer denied on the basis that he lacked authority to entertain such a motion.
III.
On appeal, Requestor contends that the Appeals Officer erred by determining that the subject e-mail, which he argues is a "record" for RTKL purposes, is exempt from disclosure pursuant to the purported sealing order because the Appeals Officer failed to provide any evidence that such an order exists pursuant to Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). Requestor further seeks the imposition of costs and sanctions pursuant to Section 1304 of the RTKL, 65 P.S. §67.1304.
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).
Section 708(a)(1) of the RTKL provides, "The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. §67.708(a)(1).
Section 1304 provides:
(a) Reversal of agency determination.--If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:65 P.S. §67.1304.
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
(b) Sanctions for frivolous requests or appeals.--The court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that the legal challenge under this chapter was frivolous.
(c) Other sanctions.--Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.
Whether information sought constitutes a "public record" is a preliminary threshold issue for which a requestor bears the burden of proof and which necessarily requires that the sought information qualifies as a "record" under the RTKL. Office of Governor v. Bari, 20 A.3d 634, 640 (Pa. Cmwlth. 2011). At the outset, this Court previously held that an e-mail does not constitute a "record" simply because it is received by an agency e-mail address or because it is located on an agency-owned computer. Easton Area School District v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmwlth.), appeal denied, 54 A.3d 350 (Pa. 2012). Under the same logic, a hard copy of an e-mail provided to an agency does not convert the e-mail to a "record" where it involves only personal matters. Conversely, "[t]he non-agency status of the creator or sender of records does not preclude their public status" as "[p]rivate persons and entities may create correspondence and send it to an agency, thereby potentially making it a record of the agency." Bagwell v. Pennsylvania Department of Education, 76 A.3d 81, 90 (Pa. Cmwlth. 2013).
It is unclear from the record whether Judge Feudale forwarded an electronic copy of the e-mail to Mr. Moulton or provided him a hard copy of the e-mail. Regardless, we reach the same result.
In determining whether an e-mail constitutes a "record" under the RTKL, the pertinent inquiry is whether the e-mail documents a transaction or activity of the responding party—in other words, whether the e-mail "proves, supports, [or] evidences" an agency transaction or activity. Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025, 1035 (Pa. Cmwlth. 2011); see also Meguerian v. Office of the Attorney General, 86 A.3d 924, 930 (Pa. Cmwlth. 2013).
In In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2011), we addressed a request for e-mail communications between an individual township commissioner and citizens of the township, which were maintained on the commissioner's personal computer. Id. at 630. Finding that such e-mails did not constitute "public records" subject to disclosure, we explained:
unless 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 [the] Township, said requested records cannot be deemed "public records" within the meaning of the RTKL as the same are not "of the local agency."Id. at 633.
In the instant case, Requestor contends the subject e-mail documents of Mr. Moulton's internal review of the OAG's Sandusky investigation. However, the e-mail was sent by Judge Feudale's personal e-mail account to Mr. Fina after Mr. Fina left the OAG and was subsequently shared with Mr. Moulton, who was appointed to conduct an investigation into Mr. Fina's handling of the Sandusky prosecution. The e-mail set forth Judge Feudale's personal opinions regarding the OAG's Sandusky investigation. As such, Judge Feudale's personal comments regarding the matter do not prove, support or evidence Mr. Moulton's internal investigation. But see Allegheny County Department of Administrative Services, 13 A.3d at 1035 (finding that the names, positions, salaries and hire dates of employees working for a company which contracted with the county "document" the existence of a contract between the company and the county and, therefore, "document" a county activity or transaction). Because the e-mail did not "document[ ] a transaction or activity" of the OAG, it does not qualify as a record under Section 102 of the RTKL, 65 P.S. §67.102.
Because we conclude that the requested e-mail does not constitute a "record" under the RTKL, we need not determine whether a sealing order precludes its disclosure. Further, because we decline to reverse the Appeals Officer's decision, Requestor is not entitled to costs or sanctions under Section 1304 of the RTKL, 65 P.S. §67.1304. --------
Accordingly, we affirm the Appeals Officer's Final Determination denying access to the subject e-mail.
/s/_________
DAN PELLEGRINI, President Judge Judge Cohn Jubelirer did not participate in the decision in this case. ORDER
AND NOW, this 12th day of January, 2015, the Final Determination of the Office of Attorney General's Right-to-Know Appeals Officer dated September 2, 2014, in this matter is affirmed.
/s/_________
DAN PELLEGRINI, President Judge