Agency has no duty to inquire of former employees and officials whether they are in possession of the agency’s public records

The Commonwealth Court has examined the scope of an agency’s duty to make inquiries to individuals in possession of the agency’s public records. Charles Breslin v. Dickinson Township, — A.3d —-, 875 C.D. 2012 (Pa.Cmwlth. 2013). The Breslin case involved an open-records request for a specific email between Township supervisors. The request at issue described the date and subject line of the email and further stated the email was “… currently in the possession of [the] former township manager ….” The Township’s Open-Records-Officer conducted a search, but did not contact or ask the Township’s former manager to provide the responsive email. The Township denied the request asserting the email was not in the Township’s custody or control.

The requester appealed the denial to the Office of Open Records (“OOR”), arguing the Township has a duty to inquire of its former employees and officials whether they are in possession of the Township’s records. The requester submitted a notarized declaration signed by the Township’s former manager, who attested that he received the responsive email on his personal email address. The OOR held the email was a public record, but in spite of the evidence regarding the former employee’s possession of the responsive public record, the OOR affirmed the Township’s denial on the basis that the Township had no duty to make an inquiry to a former employee whether he possessed the Township’s public record.

The requester appealed to the Court of Common Pleas. During a hearing, the former township manager expressed a willingness to turn over the record if requested to do so by the Township. In spite of this evidence the trial court affirmed the OOR’s determination that the Township had no duty to inquire whether a former employee possessed public records that were no longer in the agency’s possession.

The requester appealed to the Commonwealth Court. The Commonwealth Court recognized that agencies have a duty to retrieve public records that are not in their possession, custody or control: (a) if the public record is in the possession of a third party that has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function; or (b) if the public record is in the possession of one of the agency’s current officials or employees. The Commonwealth Court held this duty does not extend to public records that are in the possession of former officials or employees.

The Commonwealth Court noted the RTKL does not forbid an agency from making such inquiries of former officials and employees. The Court also noted an agency solicitor, unlike an agency official or employee, may have a continuing duty to retain and supply public records after the termination of representation.

While this decision may provide some relief for agencies in responding to RTKL requests, agencies should be aware that circumstances may arise where the agency is subject to sanctions in litigation for spoliation of evidence where the agency allows it employees to conduct agency business over their personal email accounts and can no longer retrieve discoverable emails because the employee no longer has a duty to disclose.

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.

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