             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Office of                        :
Attorney General,                             :
                  Petitioner                  :
                                              :
                v.                            : No. 2097 C.D. 2014
                                              : Submitted: December 31, 2015
Brad Bumsted, Capitol Reporter                :
Pittsburgh Tribune-Review,                    :
                   Respondent                 :


BEFORE:         HONORABLE DAN PELLEGRINI, President Judge1
                HONORABLE PATRICIA A. McCULLOUGH, Judge
                HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
PRESIDENT JUDGE PELLEGRINI                           FILED: March 15, 2016


                The Pennsylvania Office of Attorney General (OAG) petitions for
review of a final determination of its designated Right-to-Know Law (RTKL)2
Appeals Officer (Appeals Officer)3 granting Brad Bumsted’s (Requestor)4 request


       1
         This case was assigned to the opinion writer on or before December 31, 2015, when
President Judge Pellegrini assumed the status of senior judge.

       2
           Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.

       3
          Section 503(d)(1) of the RTKL provides, in pertinent part, that the Attorney General,
rather than the Office of Open Records, shall designate an appeals officer to hear appeals from
the OAG’s denial of a record’s request under the RTKL. 65 P.S. §67.503(d)(1).

       4
         Requestor chose not to file a brief, but instead requested that the matter be consolidated
with a related case, Pennsylvania Office of Attorney General v. Philadelphia Inquirer, ___ A.3d
___ (Pa. Cmwlth., No. 2096 C.D. 2014, filed November 19, 2015) (en banc), and to join the brief
of a party to that case. This Court denied Requestor’s application to consolidate the cases
(Footnote continued on next page…)
under the RTKL for emails containing pornographic materials. For the reasons
that follow, we reverse.


                                               I.
              In July 2014, Requestor, the State Capitol Reporter for the Pittsburgh
Tribune-Review, submitted an email request under the RTKL to the OAG seeking
copies of “any emails or other documents on an internal [OAG] review of
pornographic emails sent among current and former [OAG] staff from and to each
other understanding that names and email addresses may be redacted.”
(Reproduced Record (R.R.) at 01.) Requestor emailed a second request minutes
later clarifying the first request and seeking “Emails and/or Email attachments
reviewed by Special Deputy Geoffrey Moulton that contain pornographic images –
sent by former and current [OAG] staff to other current and former [OAG] staffers
– and former and current staffers who were cc’d.” (R.R. at 02) (emphasis in
original). The OAG responded, informing Requestor that his second, narrower
request would be treated as his official RTKL request, but that that request was still
fairly broad, with the term “pornographic” being ambiguous and subjective.
Requestor was notified that after a legal review, a final response to the request
would be provided within 30 calendar days of the request. Subsequently, the OAG
requested an additional seven days to respond.




(continued…)

because, although the matters involve similar issues of law, they have separate, albeit, similar
records. Thus, Requestor was precluded from joining the brief in the other case.



                                               2
              The OAG’s designated Right-to-Know Officer (RTK Officer) denied
Requestor’s request, determining that:

              •      Requestor’s first request was not sufficiently
              specific under Section 703 of the RTKL5 and neither was
              the second because it failed to provide a more specific
              definition of “pornographic” and sought records over an
              infinite period of time between a large universe of
              individuals.    However, “because the request was
              modified to emails reviewed by Geoffrey Moulton and
              relying on the Black’s Law Dictionary (6th Ed.) definition
              of ‘pornographic,’ the OAG was able to discern if
              responsive documents exist”;

              •      to the extent the requested “pornographic” emails
              exist, the information sought in the emails does not
              constitute a “record,” much less a “public record”
              pursuant to Section 102 of the RTLK6 as any
              “pornographic” emails and/or email attachments sent or
              received by current or former OAG personnel fall outside
              the scope of OAG business and the content of said emails
              does not “document a transaction or activity” of the
              OAG, nor were they “created, received or retained” by
              OAG personnel in connection with their position as
              public officials to further OAG business; and

              •     even assuming arguendo that the emails are
              “public records,” that can be characterized as
              “pornographic,” they are exempt from disclosure under
              the non-criminal investigation exemption in Section

       5
          65 P.S. §67.703. Section 703 states, in relevant part, 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….”

       6
          65 P.S. §67.102. Section 102 of the RTKL defines “record” as “[i]nformation,
regardless of physical form or characteristics, that documents a transaction or activity of an
agency and that is created, received or retained pursuant to law or in connection with a
transaction, business or activity of the agency.”



                                               3
                708(b)(17)(vi)(A) of the RTKL7 because “they have now
                become part of an ongoing internal investigation” and the
                emails “may be relevant” to the investigation of
                violations of OAG policies on the appropriate use of its
                equipment that would reveal the progress or result of this
                investigation.


(R.R. at 07.)


                                              II.
                Requestor appealed to the Appeals Officer in September 2014,
modifying his request to the following:

                     Evidence of misuse of emails, which were part of
                Special Deputy H. Geoffrey Moulton’s review; records
                that were electronically sent or received, or copied (cc’d)
                by former employees of the [OAG] on state computers.

                    Emails of former employees reviewed by Mr.
                Moulton including attachments that may violate the
                OAG’s policy on Appropriate Use of Computer
                Resources including those containing pictures, words and
                images of nude and partially nude adults, and adults
                engaged in sexual acts.

                      Internet Links transmitted and received by former
                employees of the [OAG] on state computers and/or state
                e-mail systems including pictures and images of nude
                and partially nude adults, and adults engaged in sexual
                acts and words describing sexual acts.




       7
          65 P.S. §67.708(b)(17)(vi)(A). Section 708(b)(17)(vi)(A) exempts records “of an
agency relating to a non-criminal investigation including … a record that, if disclosed, would …
[r]eveal the institution, progress or result of an agency investigation….”



                                               4
(Id. at 09.)


               The Appeals Officer held a telephone conference during which the
parties did not request a hearing, and it was decided that the RTK Officer would
rule upon the request contained in the September appeal within 30 days from the
date of the September appeal request.


               The RTK Officer denied Requestor’s September appeal, finding that
the request was not sufficiently specific under Section 703 of the RTKL.
Moreover, as with the previous request, the RTK Officer explained that the
information sought in the emails does not constitute a “record” or “public record,”
and that even if the information sought were public records, they fall within the
non-criminal investigation exemption and, thus, would be exempt from disclosure.
Requestor again appealed to the Appeals Officer.


                                        III.
               The Appeals Officer issued a determination granting Requestor’s
appeal and requiring the OAG to produce the requested materials. In making her
determination, the Appeals Officer found that the request is sufficiently specific as
it narrows the universe to just emails “reviewed by Special Deputy Moulton,”
indicating that the time period would be the period of Special Deputy Moulton’s
review. The Appeals Officer also explained that only “records” that meet the
definition set forth in Section 102 of the RTKL that are in an agency’s possession
are presumed public. She reasoned that although the requested emails “do not
appear to prove, support, or evidence a transaction in which the OAG is engaged,”
they do:


                                         5
             [E]vidence an agency activity—presumably an activity
             for which the employee is being paid but an activity
             which does not represent legitimate work. Rather, it is an
             activity which is a “misuse” of employee time and
             resources. If one of the purposes of the [RTKL] is to
             make public officials accountable for their actions …
             then the definition of “record” is broad enough to include
             emails which constitute “misuse of emails,” presumably
             those emails which utilize Commonwealth computers for
             some use other than to transact legitimate
             Commonwealth business.


(Id. at 25-26) (emphasis in original). Accordingly, the Appeals Officer concluded
that Requestor’s request could not be denied on the grounds that it requested
emails which are not “records” or “public records.”


             Finally, the Appeals Officer determined that the non-criminal
investigation exemption provided in Section 708(b)(17)(vi)(A) required the OAG
“to demonstrate that ‘a systematic or searching inquiry, a detailed examination, or
an official probe’ is being conducted regarding a noncriminal matter.” (R.R. at 27)
(citation omitted). She reasoned that the OAG did not offer any affidavits to
support its conclusory statements by the RTK Officer that the emails may be
relevant to an investigation of violations of OAG policies, and that the appropriate
use of agency equipment would reveal the progress or result of the investigation.
She noted that she “has not seen any of the emails which the OAG concedes would
fall within the requested documents and thus can make no determination about the
relevance to an investigation.” (Id.) The Appeals Officer explained that it was the
OAG’s burden to rebut the presumption of “public record” in Section 305(a) by a
preponderance of the evidence, and that “a bold statement made by the RTK
Officer in her letter is not evidence” as it “is not a sworn affidavit, and it does not


                                          6
constitute evidence—much less a preponderance—to establish either that an
ongoing investigation is in process or that the requested emails bear any
relationship to that investigation.” (Id. at 28.)


             The Appeals Officer then granted Requestor’s appeal and instructed
the OAG to produce the requested materials. The OAG filed this petition for
review.8


                                           IV.
                                           A.
             The central issue on appeal is whether personal emails sent and
received on a public email address fall within the “public records” definition of the
RTKL, thereby subjecting the OAG to disclose the emails because they evidence
the agency’s activity.


             In determining whether sought information is a “public record,” a
requestor must first establish that the information constitutes a “record” under
Section 102 of the RTKL. Barkeyville Borough v. Stearns, 35 A.3d 91, 94-95 (Pa.
Cmwlth. 2012). Then, in establishing whether the information is a “public record,”
the requestor must satisfy a two-part test: First, “the information must ‘document a
transaction or activity of the agency’”; and, second, “the information must be




      8
         This Court exercises de novo review of appeals officers’ decisions under the RTKL
pertaining to Commonwealth agencies. Meguerian v. Office of the Attorney General, 86 A.3d
924, 927 n.4 (Pa. Cmwlth. 2013).



                                            7
‘created, received, or retained’ in connection with the activity of the agency.” Id.
at 95 (citations omitted).


               Recently, in Pennsylvania Office of Attorney General v. Philadelphia
Inquirer, ___ A.3d ___ (Pa. Cmwlth., No. 2096 C.D. 2014, filed November 19,
2015), a case almost identical to the instant one, we addressed whether private
emails using a public email address are “public records” and held that they are not.
In that case, a requestor sought copies of emails that involved “pornographic or
otherwise inappropriate material” to or from the accounts of specified former OAG
employees for a certain period of time. The OAG’s designated RTK Officer
denied the request for reasons similar to those in this case, and the Appeals Officer
reversed, likewise.


               On appeal to this Court, we analyzed Easton Area School District v.
Baxter, 35 A.3d 1259 (Pa. Cmwlth.), appeal denied, 54 A.3d 350 (Pa. 2012),9 and
found that an email is a “public record” only if “the information sought documents

       9
         In Easton, a requestor sought all emails sent from and received by the email addresses
of nine school board members, a school district superintendent, and the general school board for
a one-month period. On appeal, this Court determined that:

               We agree with those cases that emails should not be considered
               “records” just because they are sent or received using an agency
               email address or by virtue of their location on an agency-owned
               computer, even where, as here, the agency has a policy of limiting
               use of computers to official business and stating that users have no
               expectation of privacy. That is so because a record is “information
               … that documents a transaction or activity of an agency,” and
               personal emails that do not do so are simply not records.

Easton, 35 A.3d at 1264 (citations omitted).



                                                8
an agency transaction or activity, and the fact whether the information is sent to,
stored on or received by a public or personal computer is irrelevant in determining
whether the email is a ‘public record.’” We declined to adopt the requestor’s
theory that emails become a public record if they document a violation of agency
policy, which transforms them into an “activity of the agency” and makes them a
“public record” under the RTKL, concluding instead that:

            If that reasoning were to be adopted, that would mean
            that if an employee sends what are purportedly
            pornographic emails, uses the government email for
            business, or just overuses the email system, those emails
            would also be subject to disclosure. Moreover, that
            reasoning is broad enough to encompass a request for all
            personal emails on the basis that the requestor wants to
            know if the agency is enforcing its policy to make sure
            that violations do not occur. If we were to adopt that
            view, then no personal emails would ever be exempt
            from disclosure because that principle is sufficiently
            broad to encompass all personal emails, and they would
            all have to be disclosed to determine whether an agency
            is properly enforcing its fair use email policy.


Philadelphia Inquirer, ___ A.3d at ___, slip op. at 10. See also Meguerian v.
Office of the Attorney General, 86 A.3d 924, 930 (Pa. Cmwlth. 2013) (“Emails are
not considered records of an agency simply because they are sent or received using
an agency email address or by virtue of their location on an agency computer”).


            Simply, emails not involving the agency business being sent, received
or retained in violation of agency policy regarding use of a work email address for
personal emails does not transform that information that was not a public record
into a public record under the RTKL. Philadelphia Inquirer, ___ A.3d at ___, slip


                                        9
op. at 10. Rather, we must look to the subject matter of the requested emails in
determining whether they qualify as records of an agency. Id.; see also Meguerian,
86 A.3d at 930.


               Here, the emails sought are those that were either “sent or received, or
copied” by former OAG employees on their OAG email addresses in violation of
OAG policy and were a part of Special Deputy Moulton’s review. However, these
emails are not “public records” simply because they were sent, received and copied
using OAG email addresses. Instead, in deeming whether the emails qualify as the
agency’s records, we must examine the subject matter of the records to gauge
whether the records relate to the OAG’s operations. Given that the request seeks
emails of a “pornographic” nature, the requested emails cannot relate to any OAG
“transaction” or “activity.” Although the emails may violate OAG policy, the
OAG is not required under the RTKL to disclose such records simply because an
agency email address is involved. Philadelphia Inquirer.10

       10
           The dissent infers that just because something in a personal email is accessible to all on
the internet, it somehow transforms a private email into an activity of an agency. An activity of
an agency is an activity that deals with the agency’s business; private emails that send
pornography (whatever that is when basic cable has images that would have been considered
pornographic not that long ago) have nothing to do with an agency’s business. As to the
comment that public funds were used to pay for computers and employees’ salaries, again, that is
not the standard for what is an activity of an agency. Remember, personal emails were permitted
under the Attorney General’s email policy and they were understood to be personal. Moreover,
under the dissent’s reasoning, just because government equipment is used on employee time, a
personal email cannot be received or sent on a government computer or, for that matter, a
personal phone call cannot be made on a government phone.

       In any event, if private emails that have nothing to do with an agency’s business are
somehow transformed into public records, Section 708(b)(17)(6) of the RTKL, 65 P.S.
§67.708(b)(17)(6), which provides that public records need not be released if they “constitute an
unwarranted invasion of privacy,” would come into play. Then, under Pennsylvania State
Education Association ex rel. Wilson v. Commonwealth of Pennsylvania, Department of
(Footnote continued on next page…)

                                                10
                                               B.
                 However, even if, assuming arguendo, the requested emails can
somehow be deemed “public records” under Section 102, they are exempt from
disclosure under the non-criminal investigation exemption of the RTKL.


                 Section 708(b)(17)(vi)(A) of the RTKL provides that all records held
by an agency are presumed to be “public,” and, thus, are generally subject to
disclosure unless they are: (1) exempt under Section 708;11 (2) protected by a
privilege; or (3) exempt from disclosure under any other Federal or State law or
regulation or judicial order or decree. 65 P.S. §67.305(a). Section 708(b)(17)
exempts records relating to a non-criminal investigation. This Court has defined a
non-criminal investigation as “a systematic or searching inquiry, a detailed
examination, or an official probe” that is not criminal in nature. Pennsylvania
Public Utility Commission v. Gilbert, 40 A.3d 755, 759 (Pa. Cmwlth. 2012).
Where an agency asserts an exemption or a privilege, it has the burden of proving
by a preponderance of the evidence that a particular record is exempt from public




(continued…)

Community and Economic Development, 50 A.3d 1263 (Pa.2012), before release by an agency of
personal emails, employees and third parties who received or sent those emails would be
required to be given written notice and a meaningful opportunity to object at the request stage to
the disclosure of their emails to establish that their release would be an unwarranted invasion of
their privacy.

       11
            65 P.S. §67.708.



                                               11
access.12 Heavens v. Pennsylvania Department of Environmental Protection, 65
A.3d 1069, 1074 (Pa. Cmwlth. 2013); see 65 P.S. §67.708(a)(1).


               In this matter, the request in itself establishes that the documents
sought are related to an investigation internal to the OAG as it calls for emails
“which were part of Special Deputy H. Geoffrey Moulton’s review,” thereby
indicating that an investigation is underway, and that disclosure of such documents
is contrary to the RTKL’s provisions.


               Accordingly, the Appeals Officer’s determination requiring the OAG
to produce Requestor’s requested emails is reversed.



                                              ___________________________________
                                              DAN PELLEGRINI, President Judge




       12
           A preponderance of the evidence is such evidence as would lead a fact-finder to find
that the existence of a contested fact is more probable than the nonexistence of the contested fact.
Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435, 438-39 (Pa. Cmwlth. 2011).


                                                12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Office of              :
Attorney General,                   :
                  Petitioner        :
                                    :
            v.                      : No. 2097 C.D. 2014
                                    :
Brad Bumsted, Capitol Reporter      :
Pittsburgh Tribune-Review,          :
                   Respondent       :




                                   ORDER


            AND NOW, this 15th day of March, 2016, the Final Determination of the
Pennsylvania Office of Attorney General’s Right-to-Know Appeals Officer dated
October 22, 2014, is reversed.



                                    ___________________________________
                                    DAN PELLEGRINI, President Judge
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Office of                       :
Attorney General,                            :
                  Petitioner                 :
                                             :      No. 2097 C.D. 2014
               v.                            :
                                             :      Submitted: December 31, 2015
Brad Bumsted, Capitol Reporter               :
Pittsburgh Tribune-Review,                   :
                   Respondent                :


BEFORE:        HONORABLE DAN PELLEGRINI, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


DISSENTING OPINION
BY JUDGE McCULLOUGH                                               FILED: March 15, 2016

               I respectfully dissent.           The Majority hinges its analysis on
Pennsylvania Office of Attorney General v. Philadelphia Inquirer, 127 A.3d 57 (en
banc), which I find to be distinguishable on its facts. In that case, the requester
specifically sought emails that are “of a personal nature and involve pornographic
or otherwise inappropriate material” sent to or from employees of the Office of
Attorney General (OAG).            Philadelphia Inquirer, 127 A.3d at 59 (emphasis
added). This Court framed the issue on appeal as “whether personal emails are
public records within the meaning of the [Right-to-Know Law] RTKL[1] . . . .”
Philadelphia Inquirer, 127 A.3d at 60 (emphasis added). Stressing the dichotomy

      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
between information which is “personal” (and not a public record) and information
that documents “a transaction or activity” of an agency (which is a public record), 2
we concluded that the requested “emails only related to personal activity of
individuals.” Id. at 63 (emphasis added). As I read Philadelphia Inquirer, our
conclusion was necessarily compelled by the facial language of the requester’s
request, which explicitly sought “personal” emails containing pornographic
images.
               In this case, however, Requester did not request “personal” emails.
Instead, he sought emails “reviewed by Special Deputy Geoffrey Moulton that
contain pornographic images” sent by OAG employees. (Maj. slip op. at 2.) In
other words, the request is for emails sent by OAG employees and specifically
reviewed by an employee of the OAG in the course and scope of his employment.
In my view, the dispositive factor in Philadelphia Inquirer is simply missing here.
Therefore, I believe that our decision in Philadelphia Inquirer is factually
inapposite.
               Because the request does not seek, on its face, personal emails, the
question becomes whether several thousand allegedly “pornographic images” sent
via email between OAG employees and reviewed by a senior deputy on behalf of
the OAG evidence, and are received in connection with, an “activity” of an agency.
Philadelphia Inquirer, 127 A.3d at 62. Correspondence among staff via email is
“a natural or normal function or operation,” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 22 (2002) (defining “activity”), of the OAG and is an

       2
          Section 102 of the RTKL defines “public record” as “[a] record ... of a Commonwealth
... agency,” and defines “record” as “[i]nformation ... that documents a transaction or activity of
any agency that is created, received, or retained pursuant to law or in connection with a
transaction, business or activity of the agency.” 65 P.S. §67.102.


                                            PAM - 2
integral part of its employees’ routine daily affairs.        Stated otherwise, when
employees utilize a governmental email account to exchange thousands of emails
of a particular nature, their conduct becomes an “activity” of that agency. This is
especially true considering that there is nothing inherently “personal” about
pornographic images that are located on the internet and accessible to the public in
general and/or do not directly relate to the private affairs of the employee. See
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1686 (2002) (defining
“personal,” in pertinent part, as “of or relating to a particular person;” “peculiar or
proper to private concerns;” and “not public or general.”).
                 The RTKL was implemented to allow the public to scrutinize and
challenge actions of government officials. SWB Yankees LLC v. Wintermantel, 45
A.3d 1029, 1042 (Pa. 2012).        Moreover, public funds are used to purchase
computer infrastructure, and governmental email accounts are intended to be used
for the purpose of conducting government business. Because public funds were
used to pay for the computers and the employees’ salaries, the employees here are
indisputably conducting an “activity” on behalf of the OAG, as further evidenced
by the fact that a senior deputy undertook a review of same on behalf of the
agency. This is particularly true given that thousands of emails of a particular
nature were exchanged, and, moreover, were allegedly exchanged in violation of
OAG policy.
            As noted by Judge Bonnie Leadbetter in her dissenting opinion to
Philadelphia Inquirer, “if communications regarding a particular subject matter are
shown to be pervasive and widespread within an agency, they may reach the level
of being an activity of that agency.”       Philadelphia Inquirer, 127 A.3d at 64
(Leadbetter, J., dissenting).


                                      PAM - 3
               Here, the record reflects that during work hours, and using computers
that were purchased with public tax dollars, employees transmitted several
thousand emails purportedly containing pornographic activity, an activity which is
also an improper use of the OAG’s time and resources and which prompted a
review by the OAG itself. I believe Requester has demonstrated a “pervasive and
widespread” communication within an agency that constitutes an activity of the
agency.
               For these reasons, I would conclude that Philadelphia Inquirer does
not control our disposition.            Because Requester requested documents that
constitute public records under the RTKL, and the OAG has failed to prove the
applicability of an exemption,3 I would affirm the OAG’s Appeals Officers Final
Determination. Therefore, I respectfully dissent.



                                                  ________________________________
                                                  PATRICIA A. McCULLOUGH, Judge




       3
          Unlike the Majority, I would not conclude that the request, on its face, establishes that
the requested records are covered under the noncriminal investigative exception located at
section 708(b)(17)(ii) of the RTKL, 65 P.S. §67.708(b)(17)(ii). Significantly, the OAG has
failed to point to any statutory or regulatory mandate to conduct internal investigations, and,
absent such explicit authority, the applicability of the noncriminal investigative exception must
be demonstrated with affirmative evidence. Cf. Coulter v. Department of Public Welfare, 65
A.3d 1085, 1088-89 (Pa. Cmwlth. 2013) (concluding that the facial language of a request may
prove the applicability of the noncriminal investigative exception where statutes and/or
regulations prove that the agency conducted a noncriminal investigation in accordance with those
statutes and/or regulations). I agree with the OAG’s Appeals Officer’s determination that the
OAG’s evidence in this case was insufficient to establish that the requested records were exempt
under the noncriminal investigative exemption. (Final Determination at 9-10.)


                                            PAM - 4
