This case required the Commonwealth Court to determine whether or not a county commissioner’s handwritten notes regarding phone conversations with private citizens, which were never relied on for official action, constituted public records under Pennsylvania’s Right-to-Know Law (RTKL). Ultimately, the court held that these notes did not document a transaction or official business activity under the RTKL. Therefore, it affirmed the trial court’s decision that the notes were not subject to disclosure.
Pennsylvania’s Hazardous Materials Emergency Planning and Response Act requires each county to have a hazardous materials response team (HAZMAT team). Each county may only have one such team. At a Clearfield County Commissioners meeting on April 14, 2015, Bigler Boyz Enviro, Inc. (BBE) proposed that its company replace the HAZMAT team already under contract with Clearfield County. A motion was passed to table this discussion under the commissioners’ April 28, 2015, meeting. In the intervening weeks, one of the commissioners, McMillen, received two unsolicited phone calls from private individuals regarding BBE’s proposal. McMillen took handwritten notes on these calls. At the April 28 meeting, the commissioners did not discuss BBE’s proposal because there was no motion made or discussion had regarding it.
BBE subsequently filed a RTKL request with Clearfield County seeking “[a]ll records, writings, documents, and communications in the possession of the Clearfield County Board of Commissioners regarding consideration of [BBE] as a HAZMAT vendor in Clearfield County, Pennsylvania.” McMillen advised the county’s open records officer (ORO) that she possessed only the handwritten notes regarding the phone calls. Access to these notes was denied, and BBE appealed to the OOR. The OOR concluded that the decision not to take action on BBE’s request for consideration was an official activity and, therefore, any records created, received, or retained in connection with the failure to act on BBE’s proposal were records of the county. As a result, the OOR determined McMillen’s handwritten notes should have been disclosed.
Clearfield County appealed to the Clearfield County Court of Common Pleas, which conducted a de novo hearing. At the hearing, McMillen testified that the notes included the identities of callers who were critical of the BBE proposal. McMillen further stated she was reluctant to disclose these notes because she believed her constituents deserved privacy. Moreover, McMillen testified that she did not share the content of the notes with other commissioners and the notes did not affect her decision regarding the BBE proposal. The court concluded that these notes did not document a transaction or official business activity of Clearfield County because the proposal was never acted upon at the April 28, 2015, meeting.
On appeal to the Commonwealth Court, BBE argued that McMillen was acting in her official capacity when she created the notes. The court disagreed. Instead, the Commonwealth Court held that the notes documented “citizen input.” Furthermore, the information contained in the notes was not relied on to make a decision, and McMillen was not “authorized to speak for or bind the County regarding a proposal that was never acted upon.” There was no agency transaction or business activity to document, and the notes, therefore, did not fall under the RTKL’s scope. As a result, the Commonwealth Court affirmed the lower court’s decision.
Click here to read: Clearfield Cty. v. Bigler Boyz Enviro, Inc., No. 2204 C.D. 2015 (Pa. Commw. Ct. July 28, 2016).
Bob Turchick, Law Clerk
Leave a Reply