                 IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Office of Inspector               :
General,                                       :
                  Petitioner                   :
                                               :    No. 1400 C.D. 2015
               v.                              :
                                               :    Submitted: July 15, 2016
Alton D. Brown,                                :
                       Respondent              :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge



OPINION BY
JUDGE McCULLOUGH                                              FILED: December 21, 2016


               The Pennsylvania Office of Inspector General (OIG) petitions for review
of the July 6, 2015 final determination of the Office of Open Records (OOR)
granting, in part, and dismissing, in part, the appeal of Alton Brown (Requestor).


                                Facts and Procedural History
               On May 7, 2015, Requestor, an inmate currently incarcerated at the State
Correctional Institution (SCI) at Huntingdon, submitted a request (Request) to OIG
pursuant to the Right-to-Know Law (RTKL),1 seeking:

               1. [OIG’s] rules, regulations, policies or related authority
               that governs its duties and functions, that were specifically
               designed by the [OIG];
      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101–67.3104.
              2. A diagram reflecting the [OIG’s] various Offices and
              Bureaus; [and]

              3. All criminal and misconduct reports pertaining to the
              detection and eradication of fraud, abuse, waste, and
              misconduct involving SCI-Graterford and SCI-Smithfield
              staff that resulted in sanctions, demotions, dismissals or
              discipline, which were compiled by the [OIG] during the
              past ten (10) years.
(Reproduced Record (R.R.) at 36a.)
              On May 14, 2015, OIG sent Requestor a letter granting the Request, in
part, and denying, in part. Regarding Paragraph 1, OIG provided Requestor with an
executive order governing its authority, but determined that Paragraph 1 was
insufficiently specific to enable OIG to ascertain what records were being requested
because it did not specify what information was sought. OIG also determined that,
insofar as Paragraph 1 sought policies and practices regarding how it conducts its
investigations and issues in investigate reports, any responsive records would be
exempt from disclosure because they would result in the loss of federal or state funds;
result in a substantial and demonstrable risk of physical harm to or the personal
security of an individual; would be reasonably likely to jeopardize or threaten public
safety or public protection activities; and were related to criminal or noncriminal
investigations.
              Similarly, OIG determined that records responsive to Paragraph 2 were
not subject to disclosure pursuant to the personal safety, public safety, and personal
identification information exemptions of the RTKL.2 However, notwithstanding its
determination, OIG exercised its discretion to provide Requestor with a redacted

       2
          Sections 708(b)(1)(ii), (b)(2), and (b)(6)(i)(A) of the RTKL, 65 P.S. §§67.708(b)(1)(ii),
(b)(2), and (b)(6)(i)(A), respectively.



                                                2
chart of its organizational structure. OIG further determined that any responsive
records to Paragraph 3, to the extent they exist, were exempt from disclosure pursuant
to, inter alia, the criminal and noncriminal investigative exemptions of the RTKL.3
In support of its denial, OIG attached an affidavit of Deputy Inspector General
Anthony Fiore, indicating that any responsive records that may exist are exempt from
disclosure because they would reveal information regarding the institution, progress,
or result of an agency investigation or otherwise consist of official OIG investigative
materials.
                Requestor appealed OIG’s determination to OOR, arguing that
Paragraph 1 was sufficiently specific because he “merely seeks the duties/functions
of OIG staff and not methods employed to carry out [the] same.” (R.R. at 1a)
(emphasis in original). Additionally, Requestor asserted that redaction of OIG’s
organizational chart was improper because it “is part of the State Government, and
Requestor seeks only the names of those who hold Offices/Bureaus, not undercover
agents, etc.”4 (R.R. at 2a.) Regarding Paragraph 3, Requestor asserted that he is
“only seeking the identities and reasons for government staff, who were sanctioned,
demoted, dismissed or disciplined as a result of an OIG investigation, not
investigation reports (etc).” Id.
                By final determination dated July 6, 2015, OOR granted, in part, and
dismissed, in part, Requestor’s appeal.               OOR concluded that Paragraph 1 was
sufficiently specific because it related to a specific type of agency business, i.e.,
OIG’s duties and functions. Additionally, OOR reasoned that, by asserting various

       3
           65 P.S. §§67.708(b)(16) and (b)(17).

       4
        During the pendency of this litigation, OIG provided an un-redacted organizational chart to
Requestor, thereby obviating the need for OOR to address Paragraph 2 of the Request.



                                                  3
exemptions to Paragraph 1, OIG acknowledged that it could ascertain what records
were being requested and, therefore, Paragraph 1 was sufficiently specific.5
              Regarding OIG’s asserted exceptions to disclosure of records responsive
to Paragraph 1, OOR reasoned that OIG failed to meet its burden to establish that any
responsive records were exempt from disclosure because: any evidence regarding
loss of funds was based on conclusory statements, not actual loss; there was no
evidence indicating how disclosure would be reasonably likely to result in a
substantial risk of physical harm to an individual; no evidence exists demonstrating
how disclosure of the requested policies would threaten public safety; and there is no
evidence establishing how the requested policies are related to a criminal or
noncriminal investigation.
               Regarding Paragraph 3, OOR determined that Requestor failed to
address OIG’s grounds for denying Paragraph 3; rather, according to OOR, Requestor
modified the Request on appeal, which is prohibited. Thus, OOR determined that its
review was confined to the Request as written and dismissed Requestor’s appeal
regarding Paragraph 3 of the same.
              OIG appealed OOR’s final determination to this Court.
              On appeal,6 OIG argues that Paragraph 1 lacks sufficient specificity
necessary to enable it to ascertain which records were requested. OIG also argues
that OOR erred in permitting Requestor to revise the Request on appeal. Finally,
OIG asserts that, after concluding that the Request was sufficiently specific, OOR

       5
          OOR also reasoned that the Request did not require OIG to perform legal research because
it only requested rules, regulations, policies, or related authority designed by OIG. (R.R. at 45a.)

       6
        This Court’s standard of review in an appeal from the OOR is independent review of the
evidence and our scope of review is plenary. Bowling v. Office of Open Records, 990 A.2d 813,
818-19 (Pa. Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013).



                                                 4
should have remanded the matter to OIG to provide it an opportunity to review
potentially responsive records and more thoroughly develop whether an exception to
disclosure exists.


                                       Discussion
               The objective of the RTKL is to “empower citizens by affording them
access to information concerning the activities of their government.” SWB Yankees
LLC v. Wintermantel, 45 A.3d 1029, 1042 (Pa. 2012). A record in possession of a
Commonwealth agency shall be presumed to be a public record. Section 305(a) of
the RTKL, 65 P.S. §67.305(a).          A Commonwealth agency bears the burden of
proving, by a preponderance of the evidence, that a record is exempt from public
access. Section 708(a)(1) of the RTKL, 65 P.S. §67.708(a)(1). Because the RTKL is
“remedial legislation designed to promote access to official government information
in order to prohibit secrets, scrutinize the actions of public officials, and make public
officials accountable for their actions, the exemptions from disclosure must be
narrowly construed.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa.
Cmwlth. 2010), aff’d, 75 A.3d 453 (Pa. 2013).
               Section 703 of the RTKL directs that a written request “should identify
or describe the records sought with sufficient specificity to enable the agency to
ascertain which records are being requested . . . .” 65 P.S. §67.703. This Court has
stated that:

               When considering a challenge to the specificity of a request
               under Section 703 of the RTKL, this Court employs a three-
               part balancing test, 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.


                                            5
Department of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121, 1124 (Pa.
Cmwlth. 2015).
             Regarding the application of the three prongs, we stated that the subject
matter of the request “must identify the ‘transaction or activity’ of the agency for
which the record is sought” and should provide “a context to narrow the search.” Id.
at 1125 (quoting Section 102 of the RTKL, 65 P.S. §67.102). The scope of the
request “must identify a discrete group of documents, either by type . . . or by
recipient.” Id. (internal quotation omitted). Indeed, “[a] request for a broad category
of documents, such as all records, may be sufficiently specific if confined to a
particular recipient or recipients.”   Id. at 1125-26.    “The fact that a request is
burdensome does not deem it overbroad, although it may be considered a factor in
such a determination.” Department of Environmental Protection v. Legere, 50 A.3d
260, 265 (Pa. Cmwlth. 2012). Moreover, “[t]he timeframe of the request should
identify a finite period of time for which records are sought.” 119 A.3d at 1126.
However, this prong is the most fluid and whether the request’s timeframe is
sufficiently narrow is “generally dependent upon the specificity of the request’s
subject matter and scope.” Id.
             OIG argues that a straightforward application of the three prongs
demonstrates that the Request is not sufficiently specific. First, OIG maintains that
the Request identifies no specific subject matter; instead, according to OIG, the
Request seeks all rules, regulations, policies or related authorities that govern all of
OIG’s duties and functions. Next, OIG argues that the only limitation in the request
for rules, regulations, policies or related authority is that they be “specifically
designed by the [OIG].” Finally, OIG posits that the timeframe of the Request is
unclear but submits that it contemplates any existing authority governing every OIG



                                           6
transaction or activity, which it argues constitutes an unreasonable burden and
amounts to a “fishing expedition.”
            In Pittsburgh Post-Gazette, this Court considered whether a request for
“[a]ll of the emails of Acting Secretary of Education Carolyn Dumaresq as they
pertain to the performance of her duties as Acting Secretary since she was appointed
on August 25, 2014 to date” was sufficiently specific under the RTKL. 119 A.3d at
1123.   Applying the three-pronged test, we concluded that the request was not
sufficiently specific because it failed to identify the requisite agency transaction or
activity. More specifically, we stated that emails pertaining to the performance of
Dumaresq’s duties while Acting Secretary “does not provide a context by which the
Request can be narrowed; it is, by virtue of the Secretary’s position, a request for
emails about all of the agency’s activity overly nearly a one year period. In other
words, it is a fishing expedition.” Id. at 1126. Cf. Easton Area School District v.
Baxter, 35 A.3d 1259, 1260 (Pa. Cmwlth. 2012) (holding that “[a]ll emails sent and
received between Oct. 1 and Oct. 31” for email addresses of nine school board
members, the general school board address, and the school district superintendent
was sufficiently specific); Pennsylvania State Police v. Office of Open Records, 995
A.2d 515, 516-17 (Pa. Cmwlth. 2010) (holding that portion of request seeking any
and all records, files, or communications of any kind pertaining to seizures of
property was insufficiently specific but portion seeking manuals relating to vehicle
stops, searches, and seizures was specific enough to enable the agency to ascertain
what records were sought).
            Here, the apparent subject matter identified in Paragraph 1 of the
Request is OIG’s “duties and functions.” (R.R. at 36a.) However, the Request does
not identify what duties and functions are at issue; rather, based on the face of the



                                          7
Request, it appears that all OIG duties and functions are contemplated because no
specific “transaction or activity” is provided. Analogous to Pittsburgh Post-Gazette,
the Request is essentially a request for authorities that govern all OIG activity.
Similar to the request in Pittsburgh Post-Gazette, the Request does not provide a
context by which it can be narrowed. Moreover, unlike Pennsylvania State Police,
the Request does not identify a specific subject matter, e.g., vehicle stops, searches,
and seizures, that is the object of the request. Requestor did not specify the category
or type of OIG activity for which he is seeking information and it would impose an
unreasonable burden to require OIG to examine all of its rules, regulations, policies,
and related authorities without knowing, with sufficient specificity, what OIG
business or activity the Request contemplates.
              Because Paragraph 1 of the Request is not sufficiently specific to advise
OIG of what records are being requested and did not identify the OIG transaction or
activity for which the record is sought, thereby failing to provide any context by
which OIG could narrow the search, OOR’s determination granting Requestor’s
appeal as to Paragraph 1 was erroneous.
              Accordingly, to the extent OOR determined that Paragraph 1 was
sufficiently specific to advise OIG of what records were being requested, OOR’s
determination is reversed.7


                                               ________________________________
                                               PATRICIA A. McCULLOUGH, Judge


       7
         Based on the foregoing disposition, we need not address OIG’s remaining arguments that
OOR erred in allowing Requestor to modify the Request or that OOR should have remanded the
matter to provide OIG an opportunity to review potentially responsive records and more thoroughly
develop whether an exception to disclosure exists.



                                               8
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Office of Inspector        :
General,                                :
                  Petitioner            :
                                        :    No. 1400 C.D. 2015
             v.                         :
                                        :
Alton D. Brown,                         :
                  Respondent            :


                                    ORDER


             AND NOW, this 21st day of December, 2016, the July 6, 2015 final
determination of the Office of Open Records (OOR) is hereby reversed to the
extent OOR determined that Paragraph 1 of the Request was sufficiently specific to
advise the Pennsylvania Office of Inspector General of what records were being
requested.



                                            ________________________________
                                            PATRICIA A. McCULLOUGH, Judge
