Opinion
No. 159 C.D. 2012
06-27-2013
Germantown Cab Company, Petitioner v. Philadelphia Parking Authority, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Germantown Cab Company (Germantown Cab) petitions for review of a final decision of the Office of Open Records (Open Records) denying its appeal of the Philadelphia Parking Authority's response to its request for public records. Open Records denied the appeal because it found that the Parking Authority had provided the requested records. Germantown Cab contends that the records provided were inadequate, but it was denied the opportunity to prove this point because Open Records did not give Germantown Cab an evidentiary hearing. We affirm.
Germantown Cab submitted three requests for records to the Parking Authority on October 14, 2011, pursuant to the Right-to-Know Law. In each case, Open Records denied Germantown Cab's appeal of the Parking Authority's response, prompting Germantown Cab to petition for our review. In addition to the instant appeal, Germantown Cab has petitioned for review of Open Records' final decision on the other two requests. See Germantown Cab Company v. Philadelphia Parking Authority (Pa. Cmwlth. 160 C.D. 2012, filed June 27, 2013), and Germantown Cab Company v. Philadelphia Parking Authority (Pa. Cmwlth. 161 C.D. 2012, filed June 27, 2013).
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
At issue in this appeal is Germantown Cab's October 14, 2011, request for public records that stated as follows:
1. Any records containing the First Class Taxicab and Limousine Advisory Committee and its present and previous members contact information including telephone number, email address and mailing address.Reproduced Record at 2 (R.R.___). The Parking Authority granted Germantown Cab's request by providing seven lists of members of the Advisory Committee. Some, but not all, of the records included mailing addresses, telephone numbers, email addresses and classifications of the Advisory Committee members. R.R. 7-15.
Germantown Cab appealed to Open Records, asserting that the records provided by the Parking Authority were "either fabricated, incorrect, incomplete and/or inconsistent" with other statements made by the Parking Authority. R.R. 17. Specifically, Germantown Cab noted that the Parking Authority had filed a brief with this Court in which it stated that it had emailed proposed 2011 regulations to members of the Advisory Committee. However, the records provided by the Parking Authority in response to the above-quoted request did not include every members' email address.
Open Records invited the parties to supplement the record, and neither party requested a hearing. Germantown Cab supplemented the record with a copy of a brief the Parking Authority had filed in Bucks County Services, Inc. v. Philadelphia Parking Authority, ___ A.3d ___ (Pa. Cmwlth., No. 584 M.D. 2011, filed June 10, 2013), a matter then pending before this Court. Germantown Cab contended that statements in that brief showed that the Parking Authority's response to the instant request was incomplete or fabricated. The Parking Authority supplemented the record with a letter brief and a notarized sworn affidavit from Linda J. Miller, Open Records Officer for the Parking Authority. The letter brief explained that the Parking Authority provided all responsive records. Miller's affidavit confirmed that all responsive records had been provided.
Open Records denied Germantown Cab's appeal based on Miller's affidavit. Open Records found the Parking Authority had responded to Germantown Cab's record request. Germantown Cab then petitioned for this Court's review.
On appeal, Germantown Cab presents two issues for our review. First, it contends that Open Records erred because it issued a final determination that did not resolve whether the Parking Authority's response was valid under the Right-to-Know Law, and it did not allow Germantown Cab to comment on the Parking Authority's supplemental responses. Second, it contends that Open Records erred in relying on the affidavit of the Parking Authority's Open Records Officer in light of the fact that statements in the affidavit are belied by other public records given to Germantown Cab by the Parking Authority.
This Court's scope of review in appeals from the Office of Open Records is de novo. Bowling v. Office of Open Records, 990 A.2d 813, 819-20 (Pa. Cmwlth. 2010), petition for allowance of appeal granted, 609 Pa. 265, 15 A.3d 427 (2011); Section 1301(a) of the Right-to-Know Law, 65 P.S. §67.1301(a) ("The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision."). Additionally, this Court may substitute its own findings of fact for that of the agency. Bowling, 990 A.2d at 818. --------
The Right-to-Know Law promotes "access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions." Bowling, 990 A.2d at 824. To advance this goal, the Right-to-Know Law requires agencies to disclose public records. 65 P.S. §67.305(a). Section 305(a) of the Right-to-Know Law provides that "[a] record in the possession of a Commonwealth agency . . . shall be presumed to be a public record." 65 P.S. §67.305(a). The statute then provides that upon "receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record . . . and whether the agency has possession . . . of the identified record . . . ." Section 901 of the Right-to-Know Law, 65 P.S. §67.901. The burden of proving that an agency does not have a record is on the agency. Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011). A notarized affidavit is sufficient evidence that a record does not exist. Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Cmwlth. 2010). With these principles in mind, we turn to Germantown Cab's arguments.
In its first issue, Germantown Cab contends that the records it received from the Parking Authority in this case cannot be reconciled with records that it received from the Parking Authority in other requests. Accordingly, the Parking Authority's response was not valid under the Right-to-Know Law. In this respect, Germantown Cab's brief addresses another request, not the above-quoted request. Accordingly, it makes arguments not relevant to the instant request for public records. We are unable to discern any error by Open Records.
In its second issue, Germantown Cab argues that Open Records erred in relying on the affidavit of Miller when other records received by Germantown Cab call into question Miller's assertions. However, Germantown Cab's brief does not discuss the instant request, as observed by the Parking Authority in its brief. In any case, the Parking Authority responds that it is well-settled that an affidavit of an open records officer is sufficient evidence to support a finding by Open Records that all responsive public records have been provided. We agree.
The Parking Authority provided the notarized affidavit of Miller to establish that the Parking Authority provided all responsive records. The notarized affidavit of an agency's open records officer is sufficient evidence to show that all responsive records have been provided. Moore, 992 A.2d at 909. As such, Open Records properly denied Germantown Cab's appeal.
For the above-stated reasons, we affirm.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 27th day of June, 2013, the order of the Office of Open Records dated January 5, 2012, in the above-captioned matter is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge