2017-0002_Jones_Centre County_NS

FINAL DETERMINATION IN THE MATTER OF RICH JONES, Requester v. CENTRE COUNTY, Respondent : : : : : : : : : Docket No.: AP 2017-0002 INTRODUCTION Rich Jones (“Requester”) submitted a request (“Request”) to Centre County (“County”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking records relating to an executive session of the County’s Prison Board (“Prison Board”). The County granted the Request, and the Requester appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final Determination, the appeal is granted in part and denied in part, and the County is required to take further action as directed. FACTUAL BACKGROUND On December 27, 2016, the Request was filed, seeking: Any and all documents created during, mentioning, after or otherwise relating to the prison board executive session held on August 31, 2016, including searches for all minutes, event proceedings, notes, presentations, memoranda, emails, faxes, instant messages, press releases and any other analog or digital communications. 1 On December 28, 2016, the County granted the Request and provided the Requester with copies of an agenda and meeting minutes from the Prison Board meeting held on September 1, 2016. On January 3, 2017, the Requester appealed to the OOR, challenging the sufficiency of the County’s response and stating grounds for disclosure. Specifically, the Requester asserts that the County provided him with records from the Prison Board meeting held on September 1, 2016, and not the Prison Board’s executive session from August 31, 2016. The OOR invited the parties to supplement the record, and directed the County to notify third parties of their ability to participate in the appeal. See 65 P.S. § 67.1101(c). On January 4, 2017, the Requester submitted, among other items, a copy of the Prison Board meeting minutes provided by the County in response to the Request. On January 11, 2017, the County submitted an unsworn position statement, stating that the Prison Board did not create meeting minutes for the executive session held on August 31, 2016; and therefore, no responsive records exist. Alternatively, the County argues that the records would be exempt under Sections 708(b)(7) and 708(b)(21) of the RTKL. 65 P.S. §§ 67.708(b)(7), (b)(21).1 On January 17, 2017, in response to a request for clarification from the OOR, the County submitted a sworn affidavit from Natalie Corman, the Human Services Administrator/Deputy County Administrator and Alternate Open Records Officer for the County. LEGAL ANALYSIS “The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is “designed to promote access to official government information in order to prohibit secrets, 1 The County is permitted to raise these additional reasons for denying access to records on appeal to the OOR. See Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013). 2 scrutinize the actions of public officials and make public officials accountable for their actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the request” and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal; however, the decision to hold a hearing is discretionary and nonappealable. Id.; Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither of the parties requested a hearing; however, the OOR has the requisite information and evidence before it to properly adjudicate this matter. The County is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.302. Records in the possession of a local agency are presumed to be public, unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and to respond within five business days. 65 P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemption(s). See 65 P.S. § 67.708(b). Section 708 of the RTKL places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: “(1) 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). Preponderance of the evidence has been defined as “such proof 3 as leads the fact-finder … to find that the existence of a contested fact is more probable than its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). “The burden of proving a record does not exist ... is placed on the agency responding to the right-to-know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011). 1. The Request may not be modified on appeal On appeal, the Requester states that the County provided the wrong records in response to his Request, explaining that he is “interested in the reasons for termination for the Centre County Prison Warden Rick Smith and any and all documents related to the investigation and discussion which led to his offer of resignation and termination….” However, a requester may not modify, explain or expand a request on appeal. See Pa. State Police v. Office of Open Records, 995 A.2d 515, 516 (Pa. Commw. Ct. 2010); Staley v. Pittsburgh Water and Sewer Auth., OOR Dkt. AP 2010-0275, 2010 PA O.O.R.D. LEXIS 256 (“A requester may not modify the original request as the denial, if any, is premised upon the original request as written”). Therefore, the OOR’s review on appeal is confined to the Request as written. See Brown v. Pa. Turnpike Comm’n, OOR Dkt. AP 2011-1287, 2011 PA O.O.R.D. LEXIS 998. 2. The County has demonstrated that meeting minutes responsive to the Request do not exist The County states that meeting minutes responsive to the Request do not exist within the County’s possession, custody or control. In support, the County provides the sworn affidavit of Ms. Corman, who attests that “[n]o minutes of the Executive Session of the Board of Inspectors were taken and, therefore, no [r]ecord … of the same can be produced.” Under the RTKL, a sworn affidavit is competent evidence to sustain an agency’s burden of proof. See Sherry v. 4 Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). In the absence of any competent evidence that the County acted in bad faith or that the meeting minutes exist, “the averments in [the affidavit] should be accepted as true.” McGowan v. Pa. Dep’t of Envtl. Prot, 103 A.3d 374, 38283 (Pa. Commw. Ct. 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw. Ct. 2013)). Based upon the evidence provided, the County has demonstrated that the requested meeting minutes do not exist within its possession, custody or control. However, the Request also seeks “[a]ny and all documents created during, mentioning, after or otherwise relating to” the executive session held by the Prison Board on August 31, 2016.2 Neither the County’s position statement nor Ms. Corman’s affidavit address whether the County possesses any other records responsive to the Request, or if other responsive records do exist, that they are exempt from disclosure under the RTKL.3 Therefore, the County has failed to meet its burden of proof with respect to whether any responsive records exist, other than meeting minutes. See 65 P.S. § 67.708(a); see also Hodges, 29 A.3d 1192. The OOR is mindful that an agency cannot produce records that do not exist within its “possession, custody or control” and, accordingly, is not ordering the creation of any records sought in the Request. Absent the County providing a sufficient evidentiary basis that no records exist, the OOR will order disclosure of responsive public records. See generally Sindaco v. City of Pittston, OOR Dkt. AP 2010-0778, 2010 PA O.O.R.D. LEXIS 755; Schell v. Delaware County, OOR Dkt. AP 2012-0598, 2012 PA O.O.R.D. LEXIS 641. 2 The Request expressly references “all minutes, event proceedings, notes, presentations, memoranda, emails, faxes, instant messages, press releases and any other analog or digital communications.” 3 To the extent additional responsive records exist, Ms. Corman attests that “the Executive Session by the Board of Inspectors was for a personnel matter and such matters are excluded under Sections 708[(b)]7 and 708[(b)]21 of the RTKL.” However, conclusory statements and general determinations are not sufficient to justify the exemption of public records. See Scolforo, 65 A.3d at 1103. 5 CONCLUSION For the foregoing reasons, the Requester’s appeal is granted in part and denied in part, and the County is required to provide all responsive records within thirty days. This Final Determination is binding on all parties. Within thirty days of the mailing date of this Final Determination, any party may appeal to the Centre County Court of Common Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. However, as the quasi-judicial tribunal adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as a party. 4 This Final Determination shall be placed on the OOR website at: http://openrecords.pa.gov. FINAL DETERMINATION ISSUED AND MAILED: 20 January 2017 /s/ Joshua T. Young ______________________ JOSHUA T. YOUNG, ESQ. APPEALS OFFICER Sent to: 4 Rich Jones (via e-mail only); Natalie Corman (via e-mail only) Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013). 6