In this appeal of the final determination of the Office of Open Records (OOR), the Commonwealth Court was asked to weigh in on what constitutes a sufficiently specific request under the Right to Know Law (RTKL). In affirming the OOR’s determination and ordering the disclosure of the subject records, the court found that it was sufficient for the requestor to ask for all emails to and from a specific employee over a finite period of time.
Requestor submitted a request on July 7, 2015 to the Governor’s Office for all emails sent or received by the Governor’s Chief of Staff from January 20, 2015 until the present. A follow-up request was submitted on July 22, 2015 seeking the same records from July 7th through July 22nd. The Office responded on July 31st, asserting the request may be overly broad, requesting a list of specific subject matters being sought, and suggested a rolling production schedule. The Requester agreed to the rolling production schedule, provided a list of keywords, and granted an extension until September 30, 2015. The Office then allegedly provided 71 pages of responsive documents. Requestor filed an appeal to OOR, alleging the response had been a partial denial. An OOR appeals officer determined the request was sufficiently specific, as it identified the types of records requested, a time-frame, and specific search terms, and ordered an in camera review of all of the responsive emails. The appeals officer concluded the Office failed to meet its burden of showing alleged “personal emails” were not subject to RTKL disclosure, by simply providing two “sample emails” and asserting other withheld emails were similarly not subject to disclosure. It also failed to meet its burden regarding emails alleged to be exempt as predecisional communications, where it only provided the subject matter discussed in the emails. Finally, the appeals officer found the Office had met its burden in demonstrating certain emails were protected by attorney client privilege, and that the Office could redact personal information such as email addresses and phone numbers. The Office appealed, asserting the appeal was untimely, the certified record was inadequate for appellate review, the request was not sufficiently specific, and OOR had failed to consider the totality of evidence it had presented to support its claimed exemptions.
On appeal, the Commonwealth Court affirmed the OOR’s final determination. It found Requestor’s appeal had been timely, and the record was adequate for appellate review. In evaluating whether the email request was specific enough, the Court employed the three-part test established in Pennsylvania Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015), examining the extent to which the request sets forth (1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought. In finding the request was adequately specific the court pointed to the finite timeframe, and the fact that it only asked for emails to and from a specific employee. Finally, the court found the Office’s argument that certain withheld records were exempt on their face from disclosure, to be unavailing as OOR could not make such a determination without being permitted to see the records under dispute. As the privilege log provided by the Office did not identify any responsive documents by date, type, author, recipient, or description, it was inadequate to support the asserted exemptions.
Click here to read: Office of the Governor v. Engelkemier, 13 CD 2016 (Pa. Commw. Ct. Oct. 14, 2016).