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FINAL DETERMINATION IN THE MATTER OF DAVE GREBER AND WBNG-TV , Complainant v.

MONTROSE BOROUGH, Respondent : : : : : : : : :

Docket No.: AP 2012-0571

INTRODUCTION Dave Greber (the Requester) submitted a request (Request) to Montrose Borough (Borough) pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq., (RTKL) seeking e-mails. The Borough granted the Request, and the Requester timely appealed to the Office of Open Records (OOR) arguing the Borough failed to provide all records. For the reasons set forth in this Final Determination, the appeal is granted and the Borough is required to take further action as directed. FACTUAL BACKGROUND On February 23, 2012, the Requester sought the following: [A]ll emails of Montrose Borough Council [(Council)] members Todd Chamberlain, Randall Schuster, Craig Reimel, Sean Granahan, Tom Lamont, Tony Pickett and Julanne Skinner sent between the dates of Jan. 1, 2012, and Feb. 23, 2012, that include the following keywords: Jessup, Jessup Street, Dimock, Dimock Township, Dimock Twp., Craig Stevens, Craig Stephens and/or hydrant.

(Request). After extending its deadline to respond, the Borough granted the request, providing two (2) pages of e-mail correspondence with redactions. On April 11, 2012, the Requester timely appealed to the OOR, asserting the response was incomplete. The Requester alleges that the Council members conducted agency business on their personal e-mail accounts and argues the Borough is required to produce those e-mails. The Requester also alleges the Boroughs response was deficient because he is in possession of a string of emails dated February 7, 2012 which are responsive to the Request, but were not provided by the Borough. The Requester challenges the redactions to the emails that were provided arguing the Borough failed to identify the redactions and provide a written legal basis for redacting information as required by the RTKL. The Requester stated that he sought a verbal explanation from the Borough and was told that personal e-mail addresses were redacted. The OOR invited both parties to supplement the record. On April 26, 2012, the Borough provided a position statement verified under the penalty of perjury by its Open Records Clerk, Erin Jenner. The Borough attests that it completed an exhaustive search of the Borough e-mails, and provided responsive records. The Borough further attests that it has no other emails(s) that fall within the requested criteria. The Borough asserts that the string of emails identified by the Requester are not subject to access because the Requester bears the burden to prove the records are public and failed to do so. The Borough further argues that the string of emails reflect internal, predecisional deliberations of the Borough, and are protected by Section 708(b)(10) of the RTKL. The Borough also argues the string of emails is exempt from disclosure under the attorney client privilege as [Borough] Counsel is clearly a participant in this communications

[sic].

The Borough further argues that redaction of

personal email addresses is

permitted under Section 708(b)(6) of the RTKL, 65 P.S. 67.708(b)(6). Finally, the Borough argues the appeal is moot as to the string of emails as the record is already in the Requesters possession making this pursuit of an appeal in this case not only a waste of [the OORs] time but tantamount to harassment of the Borough. The Borough asked that attorney fees be awarded to the Borough. On May 3, 2012 the Requester provided a copy of the string of emails as evidence that the Borough Council members use their personal emails to conduct agency business. The Borough e-mail address montroseborough@stny.rr.com is on the cc: line of each e-mail within the string, and the e-mails were sent to and from Council members. The subject line of the e-mails is Boro Meeting. The Borough was invited to respond to the Requesters May 3, 2012 submission but did not respond. The Requester agreed to an extension of time to issue the final determination. LEGAL ANALYSIS The RTKL is designed to promote 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 v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). 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). The Requester sought in camera

review of the records which was denied. An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is discretionary and non-appealable. Id.; Giurintano v. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the

necessary, requisite information and evidence before it to properly adjudicate the matter. The Borough is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. 67.302. Records in possession of a local agency are presumed 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 respond within five business days. 65 P.S. 67.901. Contrary to the Boroughs assertion that the Requester bears the burden of proving a record is public, Section 708 of the RTKL clearly 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 as leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)).

As to the redacted e-mails provided with the Boroughs response, the Borough failed to comply with Section 903 of the RTKL which states that an agencys response to a request for records shall be issued in writing and shall include [t]he specific reasons for the denial, including a citation of supporting legal authority. 65 P.S. 67.903. Redaction is a denial of access. 65 P.S. 67.706. By failing to identify grounds for redaction in its written response the Borough has waived its ability to do so. See

Pennsylvania Department of Transportation v. Drack, 2012 Pa. Commw. LEXIS 100 (Pa. Commw. Ct. Mar. 27, 2012) (finding agencys failure to raise attorney-client privilege in its final response waives the privilege); Signature Info. Solutions, LLC v. Aston Twp., 995 A.2d 510, 513 (Pa. Commw. Ct. 2010). Accordingly, the Borough is required to provide the records previously granted, without redaction. Further, the Requester has provided evidence in the form of the February 7, 2012 string of emails which shows that responsive records exist on the Boroughs e-mail account that had not been identified in response to the Request. The Borough is required to search its e-mail account montroseborough@stny.rr.com and provide responsive emails. The OOR notes that all emails on the Boroughs e-mail account that "document a transaction or activity of an agency and that were created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency" are presumptively public records and the Borough has waived its ability to assert any exemptions to disclosure. See Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1265 (Pa. Commw. Ct. 2012). Therefore, the Borough is also required to provide any additional responsive e-mails without redaction.

As to the portion of the Request seeking e-mails on the personal accounts of the named Council members, the Commonwealth Court has clearly established that where emails [are on personal e-mail accounts] between Council members, discussing Borough business, and those discussions document[] a transaction or activity of the Borough the e-mails are records of an agency. Barkeyville Borough v. Stearns, 35 A.3d 91, 95 (Pa. Commw. Ct. 2012). The February 7, 2012 string of e-mails re: Boro meeting evidences that Borough Council members do use their personal e-mail accounts to discuss Borough business. The Commonwealth Court further determined that e-mails such as the ones requested are considered to be in the possession of the Borough because: A borough, made up of individual council members, acts and carries out its duties through its council members. The council members are an integral part of borough government. Therefore, we cannot say that simply because emails are in the personal accounts of individual Council members that they are not in the possession of the Borough. Accordingly, because these emails are in the possession of the Borough, by and through the individual Council members, these emails are presumably public records under Section 305 of the RTKL.

Barkeyville Borough, 35 A.3d at 96.

Therefore, the Request seeks records of the

Borough and the Borough is required to consult with the individual Council members as to whether they possess e-mails responsive to the Request and provide those e-mails to the Requester. As stated above, the Borough has waived its ability to assert an exemption or privilege applies1.

The OOR notes that, even if the Borough had not waived its ability to raise grounds for redaction of a Council members e-mail address, Section 708(b)(6)(i)(A), which permits withholding personal e-mail addresses, would not apply as the Council members use of their personal e-mail accounts to conduct agency business removes the personal aspect of the Council members e-mail address reflected on those e-mails that were created or received for the purpose of conducting Borough business.

Finally, as to the Boroughs request for attorney fees the OOR does not have authority to award attorney fees. See 65 P.S. 67.1304(b) (The court may award reasonable attorney fees); Yanik v. City of Harrisburg, OOR Dkt. AP 2010-0218, 2010 PA O.O.R.D. LEXIS 275. CONCLUSION For the foregoing reasons, Requesters appeal is granted and the Borough is required to provide responsive records that exist on its e-mail account and also obtain responsive records from the individual Council members that may exist on their personal e-mail accounts and provide responsive records without redaction to the Requester within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Susquehanna 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. This Final Determination shall be placed on the OOR website at:

http://openrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED: May 18, 2012

_________________________ APPEALS OFFICER AUDREY BUGLIONE, ESQ.

Sent to: Erin Jenner (via email); Dave Greber (via email)