Attorney Audrey Buglione's electronic newsletter keeping you
"In the Know" on the Right to Know Law

October 16-22, 2014 - In This Issue:
Case law review
To keep you In the Know, each week we review select Office of Open Records Final Determinations and decisions issued by the Commonwealth Court or Supreme Court.  
Commonwealth Court
Glunk v. Department of State, 286 C.D. 2014, Oct. 17, 2014.
- Affirmed: employee calendar entries used solely by that employee; email chain
- Section 708(b)(12) - working papers
- Section 708(b)(10) - predecisional deliberations


The Requester argued that the Department's affidavit attested to a falsehood and thus invalidates subsequent affidavits by the open records officer. The Court disagreed finding that the "truthfulness of the affiant is a matter that goes to the credibility and weight of the evidence, which are assessments to be made by the fact-finder." 

 

The Requester also alleged that the open records officer lied in an affidavit or destroyed evidence by stating that she could not locate any responsive records on a disc because a Board administrator located a responsive record elsewhere. The Court determined that because the two individuals searched different sets of documents the fact that one individual found records does not undermine the credibility of the other.

 

The third issue reviewed by the Court involved whether an identified email chain is a record of a predecisional deliberation. The Requester argued that the email chain related to a previous decision by the Board and was therefore not "predecisional." The Court concluded that the OOR, did not err in accepting the averments in the Department's affidavit over the Requester's countervailing contention. Notably, the Court did not consider whether the email chain was "internal" or "deliberative" finding that the Requester had conceded those elements.   

 

Finally, the Court considered whether the Department properly withheld an employee's work calendar as a "notes and working papers." The Department provided an affidavit explaining that the calendar is for the employee's own use and that her supervisor is the only other person with access. The Court affirmed the denial.

 

The procedural history of this case is worth noting. For more detail on Glunk v. Dept. of State, click here.  
OOR Decisions
Andrew Staub and Pennsylvania Independent v. Throop Borough
- Granted in Part: Agency failed to prove records do not exist in format requested
- Form of record
- Tax form information

The Request sought an excel spreadsheet containing sixteen (16) categories of information regarding the compensation paid to Borough employees.  The Borough denied the Request stating that it outsources its payroll responsibilities and does not possess the records in an excel format. The Borough's submission was an unsworn statement. The Borough also argued that employee tax information is exempt from public access.

The OOR determined that the Borough failed to provide any evidence that it does not possess the requested information. The OOR noted that the Borough is required to obtain requested information from third party contractors such as that which handles the Borough payroll.

The OOR also determined that all of the categories of information sought constitute public information.  The OOR distinguished wage information on a tax form from the same information on another form stating: "[T]the inclusion of information on a tax form does not necessarily exempt that same information under the RTKL if found on other agency records."
 Suica v. Borough of Monaca
- Granted: salary information
- Section 708(b)(12) Working papers
- Section 903 - agency denial

The proper wording of a Request is important.  In this case, the Requester sought ""names and salaries of all the employees of the [Borough] in writing."  The Borough denied the Request arguing that it is only required to provide records, not information.

The Borough challenged the Requester's appeal arguing that he failed to identify the records at issue.  The OOR turned the tables on the Borough shifting blame for any possible flaw in the appeal with the Borough for failing to comply with Section 903 of the RTKL which requires that a denial identify responsive records.

The OOR similarly rejected the Borough's argument that the Request did not seek records stating "by definition, a request that seeks information is a request for records."
Question of the Week:
Is an agency required to answer questions or create a document to respond to a request?    
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Answer:
The Pennsylvania Right to Know Law does not prohibit an agency from answering questions or creating documents; however, an agency is not required to do so. That said, it can be difficult to determine when a request is a proper request for a record and when a request is a question. The appearance of a question mark at the end of a request does not automatically render it an invalid RTK request.  For instance, the Office of Open Records has held that a request phrased as "What is the manager's salary?" is a proper request for a record, and not a question. On the other hand, a request stating "Does your accounting system recognize transfer of labor/time charges between programs?" has been held to be a question rather than a request for records.  Generally speaking, if the request seeks information that exists in a record, the Office of Open Records more likely will find the Request to be a proper Request.

If the information is not contained in a record an agency is not required to create a document to respond to the request; however, the Commonwealth Court has made clear that pulling information from a database is not the creation of a record.  So, for instance, in response to a request for all employee names and salaries,  if the information is contained only in a database the agency would be required to "create" a document with the information in order to respond to the request.
IMPORTANT:   The answers to these questions should not be deemed legal advice or be acted upon without prior consultation with appropriate professional advisors. 
Learn more about the RTKL and how it affects you, your agency or your business
OOR Annual Training  - October 22, 2014
 The OOR is holding its Annual RTKL Training at the State Museum in Harrisburg on October 22, 2014 from 10a.m. to noon. Free.  CLE credits available. Learn More

PA State Association of Boroughs - Webinar, Nov. 4, 2014
The Pennsylvania State Association of Borough is holding a webinar update on the RTKL on November 5, 2014 at noon.  Learn More

Got RTKL issues? We can help.
Agency Legal Liaison services
Our goal is to help make your job as the Agency Open Records Officer responding to Right to Know Request as efficient and painless as possible. Knowing the proper response to an uncommon or confusing request for records can be difficult without spending hours keeping up with the ever changing RTKL.  Commonwealth Agency Open Records Officers have dedicated attorneys to turn to when such questions arise. Until now, smaller agencies did not. The Law Office of Audrey Buglione offers rapid legal guidance to your pressing RTKL questions. Giving the right response from the beginning helps to avoid protracted and costly litigation before the Office of Open Records or courts. As a former appeals officer, Audrey is intimately familiar with the RTKL and the subtle differences between what makes one record public and a similar record not public. 

For more information on how we can assist your agency from the Request through any appeals and avoid wasting taxpayer dollars on unnecessary RTKL litigation, contact us at  717-657-1597or info@recordslaw.com 

Consulting and customized training
Are your agency policies in compliance with the RTKL?  Are your employees up-to-date on how the RTKL impacts their duties? Are your procedures for complying with the RTKL efficient and cost-effective?  Do you have a records management plan? 

If your answer is No to any of those questions, you may be needlessly wasting tax payer dollars and putting your agency at risk for increased public scrutiny leading to expensive litigation.

As a former Appeals Officer and Training Coordinator for the Office of Open Records Audrey knows first hand the difficulties agencies may face in complying with the RTKL. Audrey offers consulting services to review your current policies, draft new policies or revise existing policies, and provide a detailed plan on how to manage records and respond to RTKL requests in an efficient and cost effective manner that increases public confidence in your agency.

Audrey is also available to provide customized training sessions or speak at your upcoming meeting or conference.

For more information on how consulting and training, contact us at  717-657-1597 or info@recordslaw.com 

Legal representation before the OOR, courts of common pleas and Commonwealth Court
Has a denial or failure to respond to a request resulted in an appeal or the necessity of an appeal to the Office of Open Records or beyond? The RTKL and OOR procedures establish a very rapid response period to appeals with little time to get up to speed on the status of the law. If you have a RTKL matter, it is important that you seek legal guidance as soon as possible. Audrey handles RTKL matters for private citizens, media, and government agencies in all Pennsylvania counties including appeals before the Office of Open Records, courts of common pleas and Commonwealth Court.

For more information on how Audrey can represent you, your agency or your organization in the appeals process or attorney referral options, contact us at  717-657-1597 or info@recordslaw.com 


In the Know
A weekly electronic newsletter on the Pennsylvania Right to Know Law presented by 
The Law Office of Audrey Buglione
phone:
717.657.1597717.657.1597
or visit us at:
Keeping you "In the Know on the Right to Know"


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Disclaimer: This newsletter is for general information only. The information presented is not legal advice, and your use of it does not create an attorney-client relationship. No visitor to this newsletter or the website www.recordslaw.com should act on the basis of any content included therein without seeking the appropriate legal advice from counsel. Any prior results described do not guarantee a similar outcome. The attorney responsible for maintaining this newsletter is Audrey Buglione.

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