This Right-to-Know Law (RTKL) dispute forced the Commonwealth Court to weigh the evidence presented by the Pennsylvania Department of Environmental Protection (DEP) that it did not possess specific records. In doing so, the court affirmed the Office of Open Records final determination that DEP did not have the records requested by Smith Butz, LLC.
On June 15, 2015, Smith Butz requested “[a]ll records associated with the . . . Notice of Violation [(NOV)] for Yeager Impoundment . . . from the DEP.” On July 16, 2015, the DEP’s Open Records Officer (ORO) denied the request, stating that the DEP did not possess the records requested. Smith Butz appealed the ORO’s decision and argued that records related to the NOV do exist because (1) it is listed in DEP’s eFACTS system, (2) it is referenced in a May 2015 study on hydraulic fracking conducted by the U.S. Environmental Protection Agency, and (3) a small leak related to the Yeager Impoundment was referenced in an August 30, 2010 email exchange between the operator of Yeager Impoundment and another company.
The OOR asked the parties to supplement the record. DEP submitted a position statement and two attestations that argued no responsive records existed. Additionally, a DEP employee submitted an affidavit, swearing that he searched for the records and questioned DEP personnel about them without success. The OOR determined that, while the attestations and affidavit did not explain why the DEP failed to issue an NOV, they credibly demonstrated that any such records were at least not possessed by DEP. Thus, the OOR affirmed the denial.
At the Commonwealth Court, Smith Butz first argued that DEP’s eFACTS system showed signs that an NOV related to Yeager Impoundment existed. However, the court found no evidence in the record that any such NOV was ever issued. Second, Smith Butz attempted to argue that it had requested all records related to Yeager Impoundment violations, not only records related to a particular NOV. The court rejected this argument, however, because once a RTKL request is submitted, the requester may not modify the request. Finally, Smith Butz argued that DEP’s attestations and affidavits were inconsistent. The Commonwealth Court found no merit to this position, as all attestations stated that DEP did not possess the requested records.
Bob Turchick, Law Clerk