            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clearfield County                          :
                                           : No. 2204 C.D. 2015
                      v.                   : Argued: June 6, 2015
                                           :
Bigler Boyz Enviro, Inc.                   :
and Pennsylvania Office                    :
of Open Records                            :
                                           :
Appeal of: Bigler Boyz Enviro, Inc.        :


BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY JUDGE WOJCIK                                         FILED: July 28, 2016


                 Bigler Boyz Enviro, Inc. (BBE) appeals from the October 12, 2015
order of the Court of Common Pleas of Clearfield County (trial court) reversing a
final determination of the Office of Open Records (OOR). The trial court held that
handwritten notes made by Clearfield County Commissioner Joan Robinson
McMillen concerning two unsolicited telephone calls she received from private
individuals were not “records” as defined by section 102 of the Right-to-Know
Law (RTKL), Act of February 14, 2008, P.L. 6, 65 P.S. §67.102. We affirm.
               The Pennsylvania Hazardous Materials Emergency Planning and
Response Act (Act)1 requires each county to have a hazardous material response
team (HAZMAT response team) certified by the Pennsylvania Emergency
Management Agency (PEMA). Under the Act and PEMA regulations, a county

      1
          Act of December 7, 1990, P.L. 639, as amended, 35 P.S. §§6022.101-6022.307.
may only have one primary HAZMAT response team, which must have an
agreement with the county it serves. Pursuant to an existing three-year contract
dated June 7, 2013, Eagle Towing & Recovery, Inc. (Eagle) is Clearfield County’s
primary HAZMAT response team.
             At the County Commissioners’ April 14, 2015 public meeting, BBE
proposed that it replace Eagle as the County’s primary HAZMAT response team.
A motion was passed to table consideration of BBE’s request until the
Commissioners’ April 28, 2015 meeting, and the request was listed on the agenda
for the April 28th meeting as “old business.”
             In the interim, the Commissioners received correspondence
concerning BBE’s proposal from the Sandy Township Fire Department, Lawrence
Township Volunteer Fire Company #1, and William C. Kriner, Esq. Additionally,
Commissioner McMillen, Chair of the Board of Commissioners, received two
unsolicited telephone calls at her Commissioner’s office from private individuals
regarding replacing Eagle with BBE. She made handwritten notes of those calls
consisting of one page.
             At the Commissioners’ April 28th meeting, when the agenda item of
“old business” was reached, Commissioner McMillen asked if there was a motion
on BBE’s request.     No motion was made.       After pausing for discussion and
receiving none, Commissioner McMillen moved to new business.
             On April 29, 2015, BBE filed a RTKL request (Request) with
Clearfield County Right-to-Know Officer Marianne Sankey. In relevant part, the
Request sought the following: “All records, writings, documents and
communications in the possession of the Clearfield County Board of




                                          2
Commissioners regarding consideration of [BBE] as a HAZMAT vendor in
Clearfield County, Pennsylvania.” (Findings of Fact Nos. 1-2.)
            In accordance with Section 901 of the RTKL, 65 P.S. §67.901, Ms.
Sankey asked each Commissioner to identify any records that fell within the
Request. Commissioners John Sobel and Mark McCracken replied that neither had
anything responsive to the Request. Commissioner McMillen advised that she had
nothing responsive except for one page of handwritten notes concerning two
unsolicited telephone calls from private individuals, which she made between April
14, 2015, and 28, 2015.
            Ms. Sankey responded to BBE’s Request on May 5, 2015, as follows:

            This is in response to your itemized request:

            1. The request for records as stated is too broad, non-
            specific, unlimited as to time and vague to reasonably
            permit identification of all public records “. . . regarding
            consideration of [BBE] as a HAZMAT vendor . . .” by
            the Clearfield County Board of Commissioners presently
            or in the past. Notwithstanding and without limiting the
            foregoing, inquiry has been made by the Clearfield
            County Open Records Officer of the Clearfield County
            Board of Commissioners regarding public records within
            the request during the period of April 14, 2015 thru April
            28, 2015. After the April 14, 2015 meeting of the
            Clearfield County Board of Commissioners and in
            apparent reaction to media reports of the Board’s
            potential consideration of [BBE] as Clearfield County’s
            primary HAZMAT responder replacing Eagle Towing &
            Recovery, Inc., the Board of Commissioners received
            written communications from the Sandy Township Fire
            Department, Lawrence Township Volunteer Fire
            Company #1 and William C. Kriner, Esquire. Copies of
            these written correspondences received are enclosed and
            marked as #1. In addition, individual Commissioners
            received various contacts from individuals opposing
            contracting with [BBE] and/or commending [Eagle]

                                         3
               and/or opposing replacement of [Eagle] with [BBE]. The
               request for all “communications” as defined on Exhibit A
               of the request exceeds the definition of “record” under
               the [RTKL]. Moreover, any public records in existence
               regarding “inquiries, discussions, conversations . . .
               telephone conversations [ . . . ] are exempt from public
               access as 1) internal, predecisional deliberations of an
               agency, its members, employees or officials . . .” (RTKL
               Section 708(B)(10)(i)(l) or 2) material, notes,
               correspondence, reports regarding complaints submitted
               to the Commissioners and/or investigations by the
               individual Commissioners on their respective positions
               on the request by [BBE] to become the primary
               HAZMAT provider for Clearfield County (Section
               708(b)(17)(i)(ii)).

               [Items 2, 3, 4, and 6 are granted and provided. Item 5 is
               omitted; the minutes of the Commissioners’ April 28,
               2015 meeting have not yet been approved and can be
               requested after the Commissioners’ May 12, 2015
               meeting.].
Appellant’s brief, Appendix D. Upon advice of counsel, access to Commissioner
McMillen’s notes was denied. (Finding of Fact No. 7.)
               BBE appealed to the OOR. Neither party requested a hearing, but
both parties submitted additional information, including a supplemental statement
made under penalty of perjury by Commissioner McMillen.2                    The OOR first



      2
          Commissioner McMillen attested as follows:

               My notes consist of one (1) page and consist of my recollection
               and recording of two (2) unsolicited contacts I received from two
               (2) private individuals which include complaints they made to me
               regarding their past experiences with [BBE] and included their
               opinions on the advisability of terminating the County’s contract
               with Eagle and replacing it with [BBE] as the County’s primary
               HAZMAT responder.
(Footnote continued on next page…)
                                              4
concluded that the Request was sufficiently specific as evidenced by the County’s
response. The OOR next considered that Section 102 of the RTKL defines a
“record” as “information, 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.” 65 P.S. §67.102. The OOR concluded that the Commissioners’
decision not to take action on BBE’s request for consideration as a HAZMAT
vendor was an activity of the County in itself; therefore, any records created,
received or retained in connection with the failure to act on BBE’s proposal were
records of the County.
              The OOR also rejected the County’s arguments that the records are
exempt under Section 708(b)(10) of the RTKL, 65 P.S. §67.708(b)(10), as
reflecting the internal pre-decisional deliberations between agency members or
employees, or under Section 708(b)(17) of the RTKL, 65 P.S. §67.708(b)(17), as
related to a non-criminal investigation. Accordingly, the OOR granted the appeal
and ordered the County to provide all records responsive to Item 1 of the Request
within 30 days.
              The County appealed to the trial court, which conducted a de novo
hearing on August 24, 2015. During her testimony, Commissioner McMillen
stated that she reviewed the Request with Ms. Sankey and they considered the one


(continued…)

              In partial reaction to the complaints I received, I also sought out
              information from other sources which are not reflected in my notes
              but which I considered prior to the April 28 meeting.

(OOR opinion at 7.)


                                              5
page of handwritten incomplete sentences and scribblings McMillen made
concerning the two phone calls. She said her notes included the identities of the
callers, who were critical of replacing Eagle with BBE. McMillen said she did not
want to disclose the notes because she believed her constituents expected and
deserved confidentiality in expressing their opinions.     She explained that the
callers were fearful of retaliation against them from BBE. R.R. at 104-07. She
also testified that Eagle was certified by PEMA and BBE was not.
             McMillen testified that she received the two phone calls in her office;
she did not share her notes with the other Commissioners and they did not
influence her position on this issue. She said that she had already noted on the
record that BBE was not certified and that the County had a longstanding
relationship with Eagle, which had provided excellent service. In other words, she
said, her decision had already been made and the calls had absolutely no influence
on her position. (R.R. at 118.)
             McMillen stated that a motion to pursue a contract with BBE was
made at the April 14th meeting and died for lack of a second; a subsequent motion
to table any decision until the Commissioners’ next meeting was passed.
McMillen testified that, in apparent response to media reports, the Commissioners
received letters from the Sandy Township Fire Department, Lawrence Township
Volunteer Fire Company #1, and William C. Kriner, Esq. regarding the issue, with
the firefighters expressing strong objection to a contract with BBE. McMillen also
referenced a pending lawsuit against the County filed by BBE, and she noted that
BBE rejected the suggestion to become a secondary HAZMAT provider. (R.R. at
135-37.) She added that both of the other Commissioners had taken a tour of
BBE’s facility between the two meetings. According to McMillen, the matter was


                                         6
listed as old business on the agenda for the April 28 th meeting; she asked for a
motion; and no motion was made.               Moreover, there was no discussion or
deliberation of the matter at that meeting.
               The    trial   court’s   pertinent   findings   include   the   following.
Commissioner McMillen believed that the callers intended their calls to be held in
confidence out of fear of retribution by BBE. She did not share the content of
those calls or her notes with the other Commissioners. The content of the calls did
not affect Commissioner McMillen’s position on BBE’s request. Eagle has the
required PEMA certification and has been the County’s primary HAZMAT
provider for as long as McMillen has been a Commissioner. BBE does not have
PEMA certification. Prior to receiving the phone calls, Commissioner McMillen
had made a firm and final decision that she would not support BBE’s request. As a
result, she did not travel with the other Commissioners to BBE’s facility prior to
the April 28th meeting. (Findings of Fact Nos. 20-25.)
               Based on the findings summarized above, and relying on this Court’s
decisions in In re Silberstein, 11 A.3d 629 (Pa. Cmwlth. 2013), and Easton Area
School District v. Baxter, 35 A.3d 1259 (Pa. Cmwlth. 2012), the trial court
concluded that Commissioner McMillen’s notes do not document a transaction,
business or official activity of Clearfield County and no relevant transaction,
business or activity of the County occurred at the April 28 th meeting. The trial
court reasoned that the RTKL must be read in pari materia with the Sunshine Act,3
which requires that official agency action be taken at a public meeting, and noted
that no official action was taken regarding BBE’s proposal.              The trial court


      3
          65 Pa.C.S. §§701-716.


                                             7
emphasized that McMillen did not share her notes with her fellow Commissioners
and that they did not influence her position on BBE’s proposal.
               The trial court further opined that disclosure of the notes would
violate public policy, citing our analysis in Department of Health v. Office of Open
Records, 4 A.3d 803 (Pa. Cmwlth. 2010) (addressing the non-criminal
investigation exemption at Section 708(b)(17)). The trial court also concluded that
the notes would be exempt under Section 708(b)(12) of the RTKL, the “personal
use” exemption.
               Thus, the trial court reversed OOR’s final determination and
subsequently dismissed BBE’s request for reconsideration. BBE now appeals to
this Court.4
               BBE first argues that the trial court erred in holding that the notes
created by Commissioner McMillen do not document a transaction, business, or
activity of the County and therefore were not public records for purposes of the
RTKL.
               Section 102 of the RTKL defines a “record” as

               Information, 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. The term includes a
               document, paper, letter, map, book, tape, photograph,
               film or sound recording, information stored or

       4
         Our scope of review is limited to determining whether the trial court committed an error
of law or an abuse of discretion or whether its findings of fact are supported by competent
evidence. Kaplin v. Lower Merion Township, 19 A.3d 1209, 1213 n.6 (Pa. Cmwlth. 2011). Our
scope of review of a question of law under the RTKL is plenary. Stein v. Plymouth Township, 994
A.2d 1179, 1181 n.4 (Pa. Cmwlth. 2010).



                                               8
             maintained electronically and a data-processed or image-
             processed document.
65 P.S. §67.102.
             BBE argues that, in creating the notes of the telephone calls,
Commissioner McMillen was acting in her official capacity. BBE asserts that
Silberstein is distinguishable and does not support the trial court’s decision.
             In Silberstein, the requester submitted a RTKL request to a township
asking for: (1) electronic communications or written correspondence from a
particular business, or its representatives or legal counsel, to the township or any of
its commissioners from January 1, 2009; (2) any electronic communications or
written correspondence between township commissioners and township citizens in
reference to a specific matter; and (3) any electronic communications or written
correspondence between Commissioner Silberstein and any legal counsel other
than the township solicitor regarding the same matter.
             The township’s open-records officer produced only documents and
emails that were on the township’s computers and did not produce any documents
or emails that were on computers solely maintained by the commissioners and/or
businesses that they owned or worked for.           The township did not consider
electronic communications between one individual commissioner and a citizen of
the township to be public records as defined by the RTKL and did not produce
such correspondence.      The township also refused to provide any electronic
communications or written correspondence between Commissioner Silberstein and
any legal counsel other than the township solicitor on the basis that they were not
public records and were protected by the attorney client privilege.
             The requester appealed to OOR, which granted the appeal, and
Silberstein appealed OOR’s final determination to the trial court. The trial court

                                           9
concluded that OOR erred in determining that records maintained on Silberstein’s
personal computer were public records solely on the basis that they were records of
a public officer and, therefore, within the control of the agency. The trial court
reasoned that the plain language of the RTKL did not support such a finding
because Silberstein was not a governmental entity. The trial court explained that
Silberstein had no authority to act alone on the township’s behalf, and he had no
obligation to keep records of, let alone disclose to the public, every conversation,
note, email, or telephone call in which he discussed matters pertaining to the
township. Thus, the trial court held that the requester failed to sustain her burden
proving that the records she sought were public records.
            The requester appealed to this Court, and we affirmed, concluding:
            The initial question that must be addressed is whether
            emails or documents on Commissioner Silberstein’s
            personal computer are public records. As argued by both
            Commissioner Silberstein and The Pennsylvania School
            Boards Association, a distinction must be made between
            transactions or activities of an agency which may be a
            “public record” under the RTKL and the emails or
            documents of an individual public office holder. As
            pointed out by the trial court, Commissioner Silberstein
            is not a governmental entity. He is an individual public
            official with no authority to act alone on behalf of the
            Township.
            Consequently, emails and documents found on
            Commissioner Silberstein’s personal computer would not
            fall within the definition of record as any record
            personally and individually created by Commissioner
            Silberstein would not be a documentation of a transaction
            or activity of York Township, as the local agency, nor
            would the record have been created, received or retained
            pursuant to law or in connection with a transaction,
            business or activity of York Township. In other words,
            unless the emails and other documents in Commissioner
            Silberstein’s possession were produced with the authority
            of York Township, as a local agency, or were later
                                        10
             ratified, adopted or confirmed by York Township, said
             requested records cannot be deemed “public records”
             within the meaning of the RTKL as the same are not “of
             the local agency”.
Silberstein, 11 A.3d at 633 (emphasis added).
             Here, as in Silberstein, Commissioner McMillen’s notes were not
“produced with the authority of” the County or later “ratified, adopted or
confirmed by” the County; consequently, those notes are not “of the local agency,”
and they cannot be deemed public “records” within the meaning of the RTKL.
             BBE contends that this case is factually distinguishable from
Silberstein because Commissioner McMillen made the notes in her official
capacity. According to BBE, the Court based its decision in Silberstein on the
personal nature of the emails and their location on a personal computer of the local
agency employee to determine that the employee did not create the documents in
his official capacity as a county commissioner. However, in making this argument,
BBE misapprehends the Court’s holding. (“unless the emails and other documents
in Commissioner Silberstein’s possession were produced with the authority of
York Township, as a local agency, or were later ratified, adopted or confirmed by
York Township . . . .”) Silberstein, 11 A.3d at 633.
             BBE’s reliance on Baxter is similarly misplaced. In that case, the
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
district for a one-month period. We held that the character of the emails, rather
than their location on an agency-owned computer, was dispositive:
             We agree with those cases [holding] 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 limiting use of
                                        11
             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.

             While emails located on an agency-owned computer are
             not presumptively records of the agency simply by virtue
             of their location, emails that document the agency’s
             transactions or activities are records.
Id. at 1264 (emphasis added).
             Citing Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth.
2012), we also stated that, “[w]hile an individual school member lacks the
authority to take final action on behalf of the entire board, that individual acting in
his or her official capacity, nonetheless, constitutes agency activity when
discussing agency business.” Baxter, 35 A.3d at 1264. Stearns concerned emails
between individual council members, via personal computers, discussing borough
business, specifically, the borough’s consideration of land development plans.
(“The land development plans are evidenced through the email content.” Id. at 95.)
In contrast, Commissioner McMillen did not discuss or otherwise share the
information contained in her notes with the other Commissioners.
             In Pennsylvania Office of Attorney General v. The Philadelphia
Inquirer, 127 A.3d 57 (Pa. Cmwlth. 2015), we again emphasized that in order to
constitute a “record” under the RTKL, information must document a transaction or
activity of the agency.
             The requirement that an email must document a
             “transaction or activity of the agency” is essential for a
             record to be a public record. This is illustrated by our
             decision in Mollick v. Township of Worcester, 32 A.3d
             859 (Pa. Cmwlth. 2011). In that case, we held that
             notwithstanding the fact that the emails were sent on
             personal computers using personal email addresses and

                                          12
              on personal time, nonetheless, the emails sent between
              township supervisors were “records” under the RTKL
              because those records documented a transaction or
              activity of the township. What makes an email a “public
              record,” then, is whether the information sought
              documents 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.”
Id. at 62.
              We believe that the County accurately characterizes the notes at issue
as documenting citizen input, which was communicated to an individual
commissioner, who did not rely on the information to make a decision, who did not
share the notes or their contents with other Commissioners, and who was not
authorized to speak for or bind the County regarding a proposal that was never
acted upon. Given these facts, and applying our holdings in The Philadelphia
Inquirer, Silberstein, Stearns, and Baxter, we conclude that the notes in this
instance are not “[i]nformation . . . that documents a transaction or activity of an
agency [that were] created, received or retained pursuant to law or in connection
with a transaction, business or activity of the agency.” 65 P.S. §67.102. Because
the notes do not document an agency transaction or activity, the trial court properly
concluded that the notes do not fall within the RTKL’s definition of public record.5
              Accordingly, we affirm.




                                            MICHAEL H. WOJCIK, Judge

       5
         Having concluded that the notes are not public records, we need not address whether the
notes are exempt under Section 708 of the RTKL.


                                              13
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clearfield County                      :
                                       : No. 2204 C.D. 2015
                    v.                 :
                                       :
Bigler Boyz Enviro, Inc.               :
and Pennsylvania Office                :
of Open Records                        :
                                       :
Appeal of: Bigler Boyz Enviro, Inc.    :

                                      ORDER


            AND NOW, this 28th day of July, 2016, the order of the Court of
Common Pleas of Clearfield County, dated October 12, 2015, is affirmed.




                                       __________________________________
                                       MICHAEL H. WOJCIK, Judge
