As Marcellus Shale continues to occupy the hearts and minds of Pennsylvania citizens, Right-to-Know issues concerning Commonwealth agencies regulating it continue.

On July 31, 2012, a panel of the Commonwealth Court in an opinion authored by Judge Anne E. Covey affirmed a final determination of the Office of Open Records (“OOR”) ordering DEP to search for and to release DEP Section 208 determination letters issued since January 1, 2008.  Pennsylvania DEP v. Legere, et al., 3 C.D. 2012 (July 31, 2012).  DEP had denied the request claiming that the request for “all Act 223, Section 208 determination letters issued by the [DEP] since January 1, 2008, as well as the orders issued by [DEP] to well operators in relation to those determination letters . . .” was not “sufficiently specific.”  DEP claimed that since the requester had not provided specific names, geographic locations, well and/or complaint numbers, they could not determine what records might be responsive since DEP had “no systematic way to search for the records that you request.”  In its denial, DEP further stated that it did not maintain its files “in such a fashion that allows us to look for all Section 208 determination letters without more specific information as stated earlier.”  Finally, in its denial letters, DEP indicated that there may potentially be records in its possession that would be responsive to this request and that may be exempt under any one or more of five exemptions under Section 708(b), the attorney-client and/or attorney-client work product privilege.  Once again, a Commonwealth agency attempted to assert a panoply of potential exemptions without specific reference to any particular document to which those exemptions may apply.

In its December 5, 2011 final determination, the OOR ordered DEP to release the records, except for those for which the cost exceeded $100.00 which had not been paid, finding that 1) the requester’s request was sufficiently specific and 2) that DEP had failed to establish that any exemption or privilege protected the responsive records.

In its appeal to the Commonwealth Court, DEP raised five alleged errors in the OOR determination, all of which were rejected by the Commonwealth Court.  First, the court found that the request was sufficiently specific.  In differentiating this scenario from the court’s decisions in cases such as Mollick v. Township of Worcester, 32 A.3d 859 (Pa.Cmwlth. 2011) and Pennsylvania State Police v. Office of Open Records, 995 A.2d 515 (Pa.Cmwlth. 2010), the court found that the request here did not require judgments to be made as to the relation of documents to the request.  The request asked for a specific type of document created by DEP itself pursuant to statute.  The court also found that the requester had set forth a clearly defined “universe of documents” that did not require any judgment to be made as to what may or may not be responsive.  The court held that a request for “all” records of this type does not render a request automatically insufficiently specific.

The court also rejected DEP’s argument that responding to the request would be “burdensome.”  The court firmly stated that just because a request may be burdensome does not render it “overbroad.”  The court was also quick to note that what made the request burdensome was not the request itself, but the manner in which DEP sought to store and track its records.  The court stated that to hold that an agency could deny access to public records based upon the fact that the request was “burdensome” solely because of the manner in which the agency chose to maintain such records would violate not only the letter but the spirit of the Right-to-Know Law.

The court similarly rejected DEP’s argument that it merely needed to conduct a “good faith search” for documents requested.  The court held that there was no issue in this case that the documents requested were public records and that they were in the possession of DEP since they were its own determinations and orders.  The court noted that DEP did not indicate in the three affidavits it filed that it actually had conducted a physical search for the files to locate the documents requested and that a mere search of its database and utilizing its “institutional memory” was not a sufficient “good faith effort” to satisfy the requirements of Section 901.  The court pointed out that contrary to DEP’s argument, there was nothing in Section 301(a) of the RTKL which simply permitted an agency to refuse to search for responsive public records merely because it would be “too burdensome to do so.”

The court also flatly rejected DEP’s argument that satisfying the request would require it to “compile and organize documents in a manner not ordinarily done by DEP and thus violates Section 705 of the Act.”  The court pointed out that the requester was not seeking records that do not exist nor was she requiring DEP to compile, maintain or format documents in a manner in which they were not currently maintained.  The request was simply seeking the documents themselves.  As the court stated, “it cannot be inferred from Section 705 of the RTKL that the General Assembly intended to permit an agency to avoid disclosing existing public records by claiming, in the absence of a detailed search, that it does not know where the documents are.”

Finally, the court rejected DEP’s argument that the OOR erred when it concluded that DEP had failed to offer any evidence in support of the numerous generic exemptions it had asserted.  The court held that DEP had waived any exemption or privilege claimed because of its failure to conduct a reasonable search for its own records and pointed out that, had DEP undertaken the search that was required under the RTKL, it would have located the documents and would have been able to easily discern any applicable exemptions.  Because it refused to do so, the court would not reward its failure with allowing it to assert exemptions now.

This decision clearly points out that an agency must make an actual real, physical search for documents which are clearly public records pursuant to a sufficient request.  An agency may not assert that finding records will require an actual physical search and that such exertion of time and effort will be “too burdensome” because the agency does not maintain its records in a manner which would make it “easier”.  This decision also underscores that an agency will not be permitted to raise “generic” exemptions on the basis that, should such documents be found, they “might” be subject to such exemptions.  The decision firmly states that one of the duties of local and Commonwealth agencies is the maintenance, preservation and supplying of the public’s records and that “it will be too hard” or “I don’t want to take the time to do it” will not be sufficient excuses for failing to comply with those duties under the RTKL.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.