           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                             :
                      Petitioner            :
                                            :
              v.                            :    No. 1426 C.D. 2017
                                            :    Submitted: October 12, 2018
PA Historical and Museum                    :
Commission,                                 :
                  Respondent                :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE ANNE E. COVEY, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                        FILED: January 28, 2019

              Alton Brown, pro se, petitions for review of a final determination of the
Office of Open Records (OOR) denying his appeal under the Right-to-Know Law
(RTKL).1 In doing so, the OOR held that the documents sent to Brown by the
Pennsylvania Historical and Museum Commission (Commission) were responsive
to Brown’s document request and, therefore, Brown was responsible for paying the
duplication fees and other costs. Because the Commission’s entire document
production is not of record, we remand.
              Brown is currently incarcerated at the State Correctional Institution
(SCI) at Fayette.2 On July 3, 2017, Brown submitted a right-to-know request to the
Commission seeking the following information:

              1. Provide any document that identifies the person(s) that
              supervises the operations of your store, including that person(s)


1
  Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
  At the time that he submitted this request, Brown was incarcerated at SCI-Greene.
              related duties and functions as established by the State Job
              Codes.
              2. Provide any document that identifies the Historical and
              Museum store employees and their duties and functions as
              established by the State Job Codes.

Certified Record (C.R.), Item No. 1 at 3.
              By letter dated July 27, 2017, the Commission’s Open Records Officer,
Cynthia Bendroth, granted Brown’s request. She explained:

              Your request is granted. Attached please find the Job
              classification for the Bureau of the State Museum [employee]
              who supervises the museum store. The store employees are not
              state employees and do not have duties as established by the
              “State Job Codes,” however they are contractual employees and
              attached please find their contracts with the [Commission].
              Pursuant to the fee provisions established by the Office of Open
              Records, the total cost of fulfilling your request is $18.00 ($.25
              per page for duplication of 64 pages and $2.00 for postage).

C.R. Item No. 1, Exhibit A at 1.
              Brown appealed the Commission’s response, arguing that the
documents were not responsive to his request and, as a result, he should not be
required to pay the $18.00 fee. Brown attached to his appeal copies of four pages of
the documents sent by the Commission in response to his right-to-know request,3
along with the accompanying cover letter from Bendroth dated July 27, 2017. The
OOR invited the parties to supplement the record.




3
  The four pages consist of a two-page purchase order dated August 17, 2016, for the services of
“Ann Parrish Barnett” as a buyer for the State Museum store and two pages of a table of contents
for an unidentified document. C.R. Item No. 1, Exhibit A at 3-6.
                                               2
             The Commission maintained that the documents it provided to Brown
were the only records in its control that were responsive to his request. In support
of its position, the Commission provided the following sworn affidavit:

             1. My name is Cynthia Bendroth. I currently serve as Agency
             Open Records Officer for the Pennsylvania Historical and
             Museum Commission (“PHMC”), which is headquartered in
             Harrisburg, Pennsylvania.
             2. PHMC’s main office is located at 300 North Street in
             Harrisburg.
             3. On or about July 27, 2017, PHMC sent from its main office
             in Harrisburg to Mr. Alton Brown, DL-4686, SCI Greene
             documentation in response to his request for information
             regarding “Historical and Museum Store employees.”
             4. As indicated previously, the name of the PHMC bureau that
             oversees the retail operations of the State Museum of
             Pennsylvania (“Museum”) is the State Museum of Pennsylvania.
             Ms. Beth Hager is the Executive Director of the Museum, which
             is tantamount to head of the “bureau.”
             5. The Museum currently has contracts with Anne Parish
             Barnett and John Abbott for the operation of its retail store.
             These contracted individuals are not employees of the
             Commonwealth. The Museum exercises no organizational
             control over the contractors.

C.R. Item No. 3 at 4. The Commission offered to waive the $18.00 fee if Brown
returned the documents to the Commission. Brown did not submit any additional
documentation.
             The OOR then requested a sworn affidavit from the Commission
addressing whether it possessed any record reflecting the job duties, functions, and
responsibilities of the State Museum store’s contract employees. On August 30,
2017, the Commission submitted another position statement and the following sworn
affidavit:
                                         3
            1. My name is Beth Hager. I currently serve as Director of the
            State Museum of Pennsylvania for the Pennsylvania Historical
            and Museum Commission (“PHMC”), which is headquartered in
            Harrisburg, Pennsylvania.
            2. PHMC’s main office is located at 300 North Street in
            Harrisburg.
            3. On or about July 27, 2017, PHMC sent from its main office
            in Harrisburg to Mr. Alton Brown, DL-4686, SCI Greene
            documentation in response to his request for information
            regarding “Historical and Museum Store employees.”
            4. The Museum currently has a contract with Ann Parish
            Barnett and John Abbott for the operation of its retail store.
            PHMC previously provided those contracts in response to Mr.
            Brown’s request.
            5. PHMC has no other records related to the job duties,
            functions, or responsibilities of Ann Parish Barnett and John
            Abbott.

C.R. Item No. 9 at 7.
            On September 5, 2017, the OOR issued its final determination denying
Brown’s appeal. The OOR held that “the Commission’s interpretation of [Brown’s]
Request was reasonable and the records provided to [Brown] were responsive to the
Request.” OOR Final Determination at 5. The OOR also found that the Commission
demonstrated that it provided Brown with the only responsive records in its
possession, custody, or control. Brown petitioned for this Court’s review.
            On May 10, 2018, the Commission filed a motion to supplement the
record, alleging that Brown’s appeal to the OOR was incomplete because he attached
only four pages of the documents produced by the Commission in response to his
right-to-know request. Citing Pa. R.A.P. 1951, the Commission asked this Court to
direct the OOR to correct the omission with a supplemental record containing the
entire document production. By order dated June 19, 2018, this Court directed the

                                         4
Commission to file a copy of Cynthia Bendroth’s July 27, 2017, cover letter and the
64 pages of documents produced to Brown as an appendix to its motion to
supplement the record. The Commission has complied with the Court’s order by
appending copies of Bendroth’s letter and the document production to its brief. The
Commission has also provided a sworn affidavit by Bendroth, stating that the
Commission actually sent 83 pages of documents to Brown and attesting that the
appendix to its brief contains a complete copy of the documents.
              On appeal,4 Brown contends, inter alia, that the documents provided
by the Commission were not responsive to his request. Specifically, he argues that
the employment contracts between the Commission and the State Museum store
employees did not identify the employees and their duties, as he requested. Brown
asserts that the Commission purposefully sent him non-responsive documents to
burden him with unnecessary costs, in violation of Section 901 of the RTKL, 65 P.S.
§67.901.
              The Commission’s motion to supplement the record draws attention to
a serious problem. When Brown appealed to the OOR, he submitted only four of
the 83 pages of documents the Commission sent to him. Nevertheless, the OOR held
that “the records provided to [Brown] were responsive” to his right-to-know request.
OOR Final Determination at 5. The OOR did not support this conclusion with any
factual findings relating the contents of the documents to Brown’s request. Such
findings are crucial for this Court to conduct effective review of the OOR’s holding,
as is access to the Commission’s entire 83-page document production. In particular,
we need to examine the entire Commission production to evaluate Brown’s unusual


4
  This Court’s standard of review of a final determination of the OOR is de novo and our scope of
review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).  
                                               5
assertion that the Commission intentionally sent him non-responsive documents.
Accordingly, we remand this matter to the OOR to enlarge the record5 and make
additional factual findings as necessary to support its decision.

                                        _____________________________________
                                        MARY HANNAH LEAVITT, President Judge

Judge Fizzano Cannon did not participate in the decision in this case.




5
  Section 1102(a) of the RTKL states that the OOR’s “appeals officer may admit into evidence
testimony, evidence and documents that the appeals officer believes to be reasonably probative
and relevant to an issue in dispute.” 65 P.S. §67.1102(a). See also Township of Worcester v.
Office of Open Records, 129 A.3d 44, 57 (Pa. Cmwlth. 2016) (“Under the RTKL, OOR is charged
with developing an evidentiary record before its appeals officers to ensure meaningful appellate
review.”).
                                               6
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Alton D. Brown,                        :
                  Petitioner           :
                                       :
            v.                         :    No. 1426 C.D. 2017
                                       :
PA Historical and Museum               :
Commission,                            :
                  Respondent           :


                                    ORDER

            AND NOW, this 28th day of January, 2019, the above-captioned matter
is REMANDED to the Office of Open Records to make factual findings in
accordance with the attached memorandum opinion within 30 days of the date of
this order, and Respondent’s Motion to Supplement the Record is DENIED as moot.
            Jurisdiction is relinquished.

                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge
