            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bill Schackner and The Pittsburgh                   :
Post-Gazette,                                       :
                        Petitioners                 :
                                                    :
                   v.                               :        Nos. 785 C.D. 2019
                                                    :             786 C.D. 2019
Edinboro University,                                :
                              Respondent            :

Edinboro University of Pennsylvania,                :
                        Petitioner                  :
               v.                                   :        No. 809 C.D. 2019
                                                    :
Bill Schackner and The                              :        Argued: February 10, 2020
Pittsburgh Post-Gazette,                            :
                              Respondents           :

BEFORE:        HONORABLE RENÉE COHN JUBELIRER, Judge
               HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CROMPTON                                            FILED: April 27, 2020

               In these consolidated matters, Bill Schackner of The Pittsburgh Post-Gazette
(Requester) sought records from Edinboro University of Pennsylvania (University)
about its attendant care/disability services pursuant to the Right-to-Know Law (RTKL).1
The University disclosed records with redaction and withheld others, asserting various
exceptions, some of which the Office of Open Records (OOR) upheld. Requester
argues OOR abused its discretion in not requesting an exemption log and challenges
the evidence as insufficient overall. Requester also contends OOR erred in construing
and applying the noncriminal investigative and predecisional deliberative exceptions.
      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
The University filed a cross-petition for review as to OOR’s analysis of specificity
and the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. §1232g.
Upon review, based on the record OOR developed as the fact-finder, we affirm as
modified as to disclosure of communications with A Bridge to Independence (ABI)
before it became the University’s attendant care contractor, as further explained below.


                                   I. Background
             In December 2018, Requester submitted a RTKL request to the University
seeking the following (with emphasis added):

             Copies of all correspondences, including but not limited to
             electronic, sent or received from Sept. 15, 2018 through today
             (Dec. 18, 2018) that include (or make reference to) any of the
             following terms, programs and individuals:

             Attendant care; attendant care program; [ABI]; Office of Students
             with Disabilities; Office for Accessibility Services; Jack Hewitt;
             wheelchair; disability; disabilities; H. Fred Walker; Pennsylvania
             Office of Vocational Rehabilitation (OVR); New York Office for
             Vocational Rehabilitation; Frank Brogan; Ronald Wilson; Adult
             Career and Continuing Education Services-Vocational
             Rehabilitation (ACCES-VR);
              And were sent or received by the following individuals:
             Michael Hannan, interim president; Stacie Wolbert, associate
             vice president for student affairs; Angela Burrows, assistant vice
             president for communications; Jim Fisher, interim provost;
             Daniel Greenstein, chancellor of the State System of Higher
             Education and any of his staff; Ronald Wilson, director of social
             equity; Pertrina Marrero, director of social equity.

Reproduced Record (R.R.) at 9a-10a (September Request). Requester submitted
another request seeking identical information, but corresponding to the timeframe of
March 1, 2018, through May 3, 2018 (March Request) (collectively, the Requests).

                                           2
               After invoking an extension, and as negotiated with Requester, the
University provided responsive records on a rolling basis in a series of productions
of bates-labeled records through January and February 2019. Records bates-labeled
000001-000078 and 000169-000458 pertained to the September Request and records
bates-labeled 000079-000168 pertained to the March Request.2 Of significance,
during its search for responsive records, the University gleaned that 3,168 records
“may potentially be responsive” to the Requests. R.R. at 625a (Counsel Attestation).


               Pursuant to Requester’s extension to complete its review of responsive
records, on February 27, 2019, the University produced the final batch of records
with redactions. R.R. at 407a-558a (Ex. 17, 000307-000557). Relevant here, the
University denied the Requests in part, withholding records under multiple exceptions
in Section 708(b) of the RTKL, 65 P.S. §67.708(b): (b)(1) (relating to loss of federal
funds under FERPA); (b)(5) (relating to medical records); (b)(6) (relating to personal
identifiers); (b)(7) (relating to personnel records); (b)(9) (relating to drafts); and
(b)(10)(1) (relating to predecisional deliberations). R.R. at 396a. In addition, the
University asserted the Requests were insufficiently specific under Section 703 of the
RTKL in that a keyword search for “Ronald Wilson” did not indicate a subject matter.
Notably, Wilson was not only the Director of Social Equity as stated in the Requests;
he held other roles during the relevant timeframe, including Title IX Coordinator.
Nonetheless, the University “interpreted the [Requests] to seek communications
between the identified individuals that are related to the attendant care program.” Id.

       2
         The University redacted email addresses under Section 708(b)(6) of the RTKL, and made
other redactions pursuant to Section 708(b)(1)(i) of the RTKL, asserting its disclosure would result
in the loss of federal funding. See Reproduced Record (R.R.) at 141a. Later, the University
disclosed additional records with redactions based on these two grounds as well as the
predecisional deliberative exception in Section 708(b)(10) of the RTKL. R.R. at 206a (Ex. 12).
                                                 3
               Requester appealed the partial denials of both Requests to OOR. In the
appeal, Requester also requested an exemption log correlating the exceptions to the
records redacted or withheld. Based on the similarity in the Requests, and with the
parties’ consent, OOR consolidated the two appeals.


               OOR developed the record, inviting both parties to submit evidence and
supporting argument. However, OOR did not require the University to submit an
exemption log.3 OOR also did not request in camera review or hold a hearing.


               The University submitted attestations from its Open Records Officer
(ORO) and its Executive Director for Information Technologies Services regarding
their search for records, and its legal counsel, Molly Harris (Counsel), regarding her
review and compilation of responsive records. After receiving position statements
and attestations from the University, OOR sought additional evidence regarding the
noncriminal investigation exception. The University provided another attestation of
Counsel and one of Ronald Wilson about his investigations into sexual misconduct
complaints in accordance with federal law. R.R. at 650a-51a (Wilson Attestation).


               Based on the submissions, deeming the Requests sufficiently specific,
OOR granted the appeal in part and denied it in part. See Schackner v. Edinboro
Univ., OOR Dkt. No. AP 2019-0404 (issued May 31, 2019) (Final Determination).
In granting the appeal, OOR required disclosure of records: (1) withheld/redacted
based on FERPA; and (2) sent/received between the University and ABI, its attendant


       3
          The term “exemption log,” often used interchangeably with the term “privilege log,”
typically “lists the date, record type, author, recipients, and a description of the withheld record or
redaction.” McGowan v. Dep’t of Envtl. Prot., 103 A.3d 374, 381 (Pa. Cmwlth. 2014).

                                                  4
care contractor, regarding attendant care services.4 Relevant here, it reasoned emails
to/from ABI qualified as internal to the University both before and after ABI became
its contractor. OOR upheld the University’s denial as to the remaining exceptions.


              Requester petitions for review, arguing OOR abused its discretion in
developing the record and erred in construing and applying certain RTKL exceptions.
The University cross-petitions for review challenging OOR’s analysis of specificity
and the Final Determination to the extent it directed disclosure.


                                          II. Issues
              These appeals present both legal and evidentiary issues for our review.
As a matter of law, Requester challenges whether: (1) emails sent to/from a
contractor are “internal” so as to allow protection under the predecisional deliberative
exception in Section 708(b)(10) of the RTKL; and (2) the University conducted a
qualifying noncriminal investigation pursuant to Section 708(b)(17) of the RTKL.
The University questions OOR’s analysis of FERPA under Section 708(b)(1), and
its application of the multi-factor assessment for specificity.


              Requester also questions the sufficiency of the evidence and asserts
OOR abused its discretion in not requiring the University to submit an exemption log.
To clarify the application of certain exceptions, Requester seeks a limited remand to
OOR to direct the creation and production of an exemption log as to Section 708(b)(5)
(for medical/disability status) and (b)(6) (for personal identifiers) only.

       4
        OOR properly applied the predecisional deliberative exception in Section 708(b)(10) of
the RTKL to protect emails exchanged among the University’s leadership team regarding policy.
As to emails between the University and ABI, OOR explained that emails discussing ABI’s location
on campus were not protected because they did not deliberate a policy or provision of services.
                                               5
                                        III. Discussion
               In RTKL appeals involving a Commonwealth agency, this Court may
rely on the record developed before the appeals officer. Dep’t of Labor & Indus. v.
Heltzel, 90 A.3d 823 (Pa. Cmwlth. 2014) (en banc). Our review over matters of law
is plenary. Id. The parties here do not enlist, and we do not exercise, our fact-finding
function. Therefore, we assess this matter in our appellate capacity.


                                         A. Specificity
               We begin our analysis with the University’s challenge to the specificity
of the Requests. The University argues the Requests did not adequately define the
subject matter such that it is confined to only records documenting agency activities.5
In particular, it objected to Requester using a name (Ronald Wilson) as both a sender/
recipient and a keyword because all emails to or from that person could be responsive.


               Section 703 of the RTKL provides a baseline for specificity, stating:
“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. Case law further refined the specificity review as a multi-factor
assessment. See Office of the Governor v. Engelkemier, 148 A.3d 522 (Pa. Cmwlth.
2016); Dep’t of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Cmwlth. 2015).


               In assessing specificity, a decision-maker “examin[es] the extent to
which the request sets forth[:] (1) the subject matter of the request; (2) the scope of


       5
         In pertinent part, Section 102 of the RTKL defines a “record” as: “Information … 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.
                                                6
documents sought; and (3) the timeframe for which records are sought.” Engelkemier,
148 A.3d at 530. See also Carey v. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Cmwlth.
2013) (“Each [part of the request] specifies a subject matter, a finite timeframe and
seeks a discrete group of documents, either by type, as communications, or by
recipient …. [Thus,] [t]he [r]equest is sufficiently specific ….”). However, we do not
assess these factors in isolation; rather, we consider them in combination and with the
benefit of the entire record developed in the appeals officer stage. Engelkemier.


             Applying the multi-factor test here, the University does not dispute that
the Requests identified the type of records (i.e., correspondence), recipients and
discrete timeframes. The timeframes to which the September Request and the March
Request pertain are objectively reasonable, the former spanning 95 days whereas the
latter spans 64 days. See, e.g., Baxter v. Easton Area Sch. Dist., 35 A.3d 1259 (Pa.
Cmwlth. 2012) (deeming request for emails spanning 30 days sufficiently specific).


             With regard to requests for emails, like the Requests before us, the
subject matter is indicated by the keywords and senders/recipients identified by a
requester. In such cases, the balancing of factors is informed by the records an
agency disclosed. Engelkemier. Stated differently, while keywords, on their face,
may not identify a transaction or activity of the agency, we weigh the keywords in
the context of the RTKL request and the records compiled in response. Id.; Baxter.


             Moreover, particularly with requests seeking emails, this Court has
found an agency’s ability to compile records in response persuasive. Baxter. But
see Montgomery Cty. v. Iverson, 50 A.3d 281 (Pa. Cmwlth. 2012) (en banc)


                                          7
(agency’s ability to respond does not render request specific). From its disclosure
of hundreds of records, it is evident the University could discern what records were
sought when construing the Requests as confined to attendant care services.


             Viewing the combination of senders and recipients, who were or are
University employees, the Requests contemplate only “records” as defined by the
RTKL. The senders and recipients are finite, and the subject matter is indicated in
the keywords, including attendant care, disabilities, accessibility and rehabilitation.


             Here, the University challenges the keywords when the term was
simply a name, i.e., Ronald Wilson. We anticipate that use of a name as a search
term, as well as a sender/recipient, may include records that are not germane to
University activities. However, combined with the fact that the Requests identified
15 senders/recipients over a reasonable timeframe, the keywords provide sufficient
parameters to enable the University’s response. It bears emphasis that the University
was able to compile hundreds of responsive records using the search terms. To the
extent the balancing of these factors presents a close call, we defer to the fact-finder.
As such, we affirm OOR’s conclusion that the Requests were sufficiently specific,
and confirm the University must disclose responsive public records under the RTKL.


                             B. Sufficiency of Evidence
                              1. Form - Exemption Log
             Before turning to the merits of the asserted exceptions, we address
Requester’s contention that OOR abused its discretion in developing the record prior
to issuing the Final Determination when it did not request an exemption log.


                                           8
              “[T]he RTKL grants appeals officers wide discretion with respect to
procedure ....” Bowling v. Office of Open Records, 75 A.3d 453, 467 (Pa. 2013).
This Court consistently holds an appeals officer has discretion in the manner in
which she develops the record. Highmark Inc. v. Voltz, 163 A.3d 485 (Pa. Cmwlth.
2017) (en banc); Dep’t of Educ. v. Bagwell, 114 A.3d 1113 (Pa. Cmwlth. 2015).
Although an appeals officer may request additional evidence or explanation from
the parties, it is not incumbent upon OOR to do so.


              A detailed exemption log offers sufficient proof of an exemption,
especially where the information in the log is bolstered with averments in a verified
statement or attestation. McGowan v. Dep’t of Envtl. Prot., 103 A.3d 374 (Pa.
Cmwlth. 2014). While the combination of an attestation and an exemption log may
constitute better evidence, an attestation “found to be relevant and credible may
provide sufficient evidence in support of a claimed exemption.” Heavens v. Dep’t of
Envtl. Prot., 65 A.3d 1069, 1073 (Pa. Cmwlth. 2013). Before OOR, “affidavits are
the [primary] means through which a governmental agency ... justifies nondisclosure
of the requested documents under each exemption.” Id.


              In this case, the University relied solely on attestations to substantiate the
asserted exceptions, despite that Requester asked for an exemption log in its appeal to
OOR. In support of its contention that OOR erred in not granting its request for such
a log, Requester cites Vista Health Plan, Inc. v. Department of Human Services (Pa.
Cmwlth., No. 660 C.D. 2017, filed May 31, 2018), 2018 WL 2436329 (unreported).6
There, this Court held that OOR had the authority to request an exemption log when

       6
         Unreported cases may be cited for their persuasive value in accordance with Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code §69.414(a).
                                             9
the affidavits or other documentary evidence contained insufficient facts to assess
the exemptions. Importantly, despite OOR deeming the evidence before it sufficient
proof for the exception (Section 708(b)(26) of the RTKL relating to requests for
proposals), we concluded the record was insufficient for this Court to ensure only
protected information was withheld. As a consequence, we vacated and remanded to
OOR to reconsider the asserted exception with the benefit of an exemption log. Id.


               As in Vista, in this case, OOR deemed the attestations sufficient to
prove the asserted exceptions by a preponderance of the evidence, with the exception
of Section 708(b)(1). Here, we are able to review the entirety of the record, including
the hundreds of responsive records disclosed, in conjunction with attestations to the
salient facts. But unlike Vista, we do not discern so little information regarding the
content of responsive records to preclude our review of the asserted exceptions.7


               With the benefit of the University’s production of more than 450 records,
the protected status of certain redactions may be discerned. Mission Pa., LLC v.
McKelvey, 212 A.3d 119 (Pa. Cmwlth. 2019), appeals granted in part, McKelvey v.
Dep’t of Health (Pa., Nos. 393, 394, 396 MAL 2019, filed Jan. 28, 2020). For example,
redaction of names or email addresses in emails are protected as personal identifiers
under Section 708(b)(6). See, e.g., R.R. at 107a (redacting email addresses of
parents and students receiving services). Thus, it is unnecessary to remand to OOR
to require an exemption log only as to personal identifiers and disability status when
the redactions are clear from review of the redacted records themselves.


       7
         Requester mischaracterizes our decision in Vista as requiring an agency’s submission of
an exemption log to meet its burden of proof. However, in Vista, we deemed the record insufficient
for adequate appellate review so a remand was necessary to aid our understanding of the case.
                                               10
               We reject Requester’s criticism of the quality of the attestations
submitted; the University identified the type of record, like policy drafts, and
submitted a statement that the record was withheld or redacted.8 In context and based
on the facts in the attestations and the description in the verified position statement
of redactions, we conclude that the University provided sufficient evidence to meet
its burden of proof that the drafts it withheld are protected by Section 708(b)(9).9


               Additionally, we consider the evidence sufficient to withhold criticisms
or evaluations of an employee under Section 708(b)(7) of the RTKL. However,
OOR concluded that “the University has demonstrated that some records contain
exempt employee information.” Final Determination at 15. In the interest of clarity,
we confirm the University only established that evaluations and written criticisms of
employees are protected by this exception.10


               In sum, the record is adequate to permit our review of the merits.


                             2. Substance – RTKL Exceptions
               Records in an agency’s possession are presumed public unless exempt
under an exception in Section 708(b) of the RTKL, a privilege, or another law.
Section 305(a) of the RTKL, 65 P.S. §67.305(a). The RTKL places the burden of

       8
           Ideally, since the agency bates-labeled responsive records, the supporting attestations
would refer to documents by bates-label or other details. Had the University taken that additional
step in this case, Requester may have appealed fewer issues or potentially not appealed at all.
       9
         Requester does not seek disability status or identifiers of those with disabilities protected
by Section 708(b)(5) and (b)(6) in the appeal, and such information is properly protected.

       10
          Requester also did not question the adequacy of the evidence the University submitted
regarding Section 708(b)(7) in its affidavit. See Certified Record at 647-51 (Schackner Affidavit).
                                                 11
proving asserted exemptions squarely on an agency. A party must prove asserted
RTKL exceptions apply “by a preponderance of the evidence.” Section 708(a)(1) of
the RTKL, 65 P.S. §67.708(a)(1). “A preponderance of the evidence standard … is
tantamount to a more likely than not inquiry.” California Univ. of Pa. v. Schackner,
168 A.3d 413, 417 (Pa. Cmwlth. 2017) (citation omitted). Consistent with the
presumption of openness, exceptions are narrowly construed. McGowan.


                 (a) Section 708(b)(10) – Predecisional Deliberations
                First, we consider whether OOR erred in protecting communications
between the University and its contractor, ABI, under the predecisional deliberative
exception in Section 708(b)(10)(i)(A) of the RTKL. This exception protects records
that reflect:

                The internal, predecisional deliberations of an agency, its
                members, employees or officials or predecisional deliberations
                between agency members, employees or officials and members,
                employees or officials of another agency, including
                predecisional deliberations relating to a budget recommendation,
                legislative proposal, legislative amendment, contemplated or
                proposed policy or course of action or any research, memos or
                other documents used in the predecisional deliberations.

65 P.S. §67.708(b)(10)(i)(A). To establish this exception, the University must show
the record: “(1) is internal to [the] agency; (2) contains information that is deliberative;
and (3) reflects deliberations that occurred prior to a decision,” i.e., “predecisional.”11
California Univ. of Pa., 168 A.3d at 420 (citation omitted). All three elements must
be met. Carey.

       11
          We discern no merit in Requester’s contention that evidence supporting this exception
must state the date of the decision. As long as it is clear from the evidence that the information
pre-dated a decision at issue, the predecisional component is met.
                                               12
             The “internal” element is met “‘when [records] are maintained internal
to one agency or among governmental agencies.’” Id. (citation omitted). This Court
recently held the predecisional deliberative exception may protect records shared
with a third-party contractor. See Finnerty v. Dep’t of Cmty. & Econ. Dev., 208 A.3d
178 (Pa. Cmwlth. 2019), appeal granted, Chester Water Auth. v. Dep’t of Cmty. &
Econ. Dev. (Pa., No. 44 EAP 2019, Dec. 31, 2019). In Finnerty, we reasoned that
information shared for deliberation with an outside contractor retained by an agency
qualifies as “internal” because the contractor acts as the agent of the agency. Id.


             The University hired ABI to coordinate disability services on its behalf.
As the contractor hired to perform these services, ABI is an agent of the University
integral to its function such that the internal element of the predecisional deliberative
exception is met. Finnerty. OOR did not err in so concluding.


             Having reviewed the three prerequisites for this exception, we apply it
to the three categories of communications with ABI that the University withheld.
These categories are comprised of emails exchanged: (1) before its hire, regarding
attendant care services; (2) after its hire, regarding attendant care policy and services;
and (3) after its hire, regarding the location of ABI.


             Records responsive to the Requests pertain to two operative decisions:
(1) the hire of ABI in September 2018; and (2) coordination of attendant care services
after ABI’s hire. Both categories of records are deliberative in that the first category
pertains to deliberations regarding the hire of ABI and the second category pertains
to deliberations regarding the provision of services through ABI. Both categories of


                                           13
records are also predecisional to the extent they pertain to the operative decision.
However, it is not clear that both categories meet the “internal” requirement.


             In its OOR appeal, Requester acknowledged that responsive records
would include communications regarding the change in the University’s attendant
care policy with care coordinator ABI. See R.R. at 571a. These communications
deliberating policy are deliberative in nature and occurred prior to determining the
policy and services. Once ABI became the University’s agent in providing attendant
care services, these records also became internal.


             The September Request sought records post-dating the hire of ABI as
attendant care coordinator for the University. Communications between ABI and
the University regarding provision of services after ABI’s hire qualify as internal
because they involve deliberation of the services being provided. Finnerty.


             The March Request, however, sought records pre-dating ABI’s hire.
Communications among University employees and agents regarding the outsourcing
of attendant care services to prospective contractors (like ABI) are protected under
this exception as they reflect internal deliberations of the hiring decision pre-hire.
By contrast, communications to and from the prospective contractors are not
similarly exempt since they are not “internal” until the contractor becomes an agent.


             Accordingly, emails between ABI and the University exchanged before
its hire do not meet the internal prerequisite for this exception. In applying Finnerty
to protect emails to/from ABI before it became the University’s agent, OOR erred.


                                          14
             Notwithstanding this error, we uphold OOR’s legal conclusion that this
exception applies to emails to/from ABI post-hire because communications with a
contractor meet the internal element. Therefore, we affirm OOR with modification
to require disclosure of emails exchanged with ABI before its hire (i.e., not internal).


               (b) Section 708(b)(17) - Noncriminal Investigations
             Next, we address Requester’s contention that OOR erred as a matter of
law in determining that the University established it performed a noncriminal
investigation such that records related to its investigation are protected by Section
708(b)(17) of the RTKL. Because Ronald Wilson was the Title IX Coordinator for
the University and his name was both a keyword and among the sender/recipients in
the search, records involving his investigation of Title IX matters were responsive.


             Section 708(b)(17) of the RTKL protects records “related to a
noncriminal investigation ….” 65 P.S. §67.708(b)(17). In the RTKL context, this
Court defines an “investigation” as a “systematic or searching inquiry, a detailed
examination, or an official probe.” Dep’t of Health v. Office of Open Records, 4
A.3d 803, 811 (Pa. Cmwlth. 2010). “[T]he agency … must show that a searching
inquiry or detailed examination was undertaken as part of an agency’s official duties.
Stating that an investigation occurred [without more] ... does not suffice.” Dep’t of
Educ. v. Bagwell, 131 A.3d 638, 659-60 (Pa. Cmwlth. 2015) (citations omitted).


             Requester maintains that an investigation is not undertaken as part of
an agency’s “official duties” unless there is express statutory authority prescribing
the investigative power. Expressly conferred powers pursuant to legislation is but


                                          15
one illustration of the “official duties” part of this analysis. Sherry v. Radnor Twp.
Sch. Dist., 20 A.3d 515 (Pa. Cmwlth. 2011).


             The University must comply with statutes other than its enabling statute
and has authority to perform the requisite investigations as part of its compliance.
Here, that entails an investigation into sexual misconduct allegations that may relate
to a staff member or administration of disability services to which the students are
entitled. Construing the exception as narrowly as Requester suggests would mean that
highly sensitive investigations of sexual misconduct in our educational institutions are
not protected merely because the enabling statute of the agency did not enumerate
investigations into sexual misconduct, or other matters with which federal compliance
is required, as part of the agency’s duties. That would yield an unreasonable result.


             There is no case law of which this Court is aware that holds the
investigative power must be affirmatively conferred in an agency’s enabling statute
in order for an agency’s investigation to qualify as one within its official duties. See
Pa. Liquor Control Bd. v. Beh, 215 A.3d 1046, 1061 n.22 (Pa. Cmwlth. 2019)
(explaining “official duties” required for Section 708(b)(17) flows from an agency’s
authority to act). This is an unreasonably narrow construction of the phrase “official
duties” when not all of an agency’s powers are explicitly conferred. To the contrary,
long-standing precedent recognizes that agencies exercise authority through
necessarily implied powers. Pa. Human Relations Comm’n v. St. Joe Minerals
Corp., Zinc Smelting Div., 382 A.2d 731 (Pa. 1978). This includes investigations
undertaken as part of its compliance with other laws, like Title IX, 20 U.S.C.
§§1681-1683.


                                          16
              As a member of the State System of Higher Education governed by
Section 2002-A(a) of the Public School Code of 1949, 24 P.S. §20-2002-A(a),12 the
University has the authority and the duty to investigate sexual misconduct
allegations. The University must comply with Title IX which protects students and
faculty from discrimination and harassment based on sex. Cf. Harden v. Rosie, 99
A.3d 950 (Pa. Cmwlth. 2014). This federal statutory scheme provides the source of
authority for this noncriminal investigation. But see California Univ. of Pa. (holding
university’s investigation of collapse of parking garage was not within official duties
such that this exception protected records related to its investigation).


              Here, “the University withheld records related to Title IX investigations
conducted by Ronald Wilson, who is the University’s former Title IX Coordinator.
Any records related to the University’s investigations into allegations of sexual
misconduct, harassment, or discrimination constitute records related to noncriminal
investigations, and are exempt from disclosure under the exemption to the RTKL.”
R.R. at 647a (emphasis added). Upon OOR’s request for additional clarification,
(Certified Record at 670), Counsel submitted a second attestation confirming the
investigation into student allegations of sexual misconduct, sex discrimination and
sexual harassment, and her decision to withhold records related to that investigation.
R.R. at 652a. She also verified the facts in her position statement, including that the
records related to the University’s investigation into a student’s allegations were
withheld, some of which involved University employees, and so were also withheld
under Section 708(b)(7) (protecting certain personnel records). R.R. at 649a. Such
records were responsive because “Ronald Wilson” was a keyword in the Requests.

       12
          Act of March 10, 1949, P.L. 30, as amended, added by the Act of November 12, 1982,
P.L. 660, 24 P.S. §20-2002-A(a).
                                            17
               Also in support of this exception, Wilson attested to his role as former
Title IX Coordinator, which included investigating formal complaints in accordance
with federal law. R.R. at 651a. He confirmed the receipt of formal complaints of
sexual misconduct during the relevant timeframes, and the investigation process
(conducting interviews and collecting documentation) related to those complaints.


               These attestations substantiate the University’s investigation into
sexual misconduct claims. The University’s investigation into sexual misconduct
claims qualifies as an official inquiry for purposes of the noncriminal investigative
exception. Beh; Dep’t of Health. Because the tenets for establishing the noncriminal
investigation are met, we affirm OOR’s application of Section 708(b)(17).13


               (c) Section 708(b)(1)(i) (Loss of Funds under FERPA)

               Section 708(b)(1)(i) of the RTKL protects “[a] record, the disclosure of
which would result in the loss of Federal or State funds by an agency or the
Commonwealth[.]” 65 P.S. §67.708(b)(1)(i) (emphasis added). The University
argues that it withheld or redacted records asserting they were “education records”
under FERPA such that their disclosure might jeopardize its federal funding.


               FERPA defines “education records” as “those records, files,
documents, and other materials which – (i) contain information directly related to a
student; and (ii) are maintained by an educational agency or institution or by a person
acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A). We recently held

       13
          We are particularly reluctant to order disclosure in these circumstances where the agency
acted in good faith by cooperating throughout the proceedings and exercising diligence in providing
responsive records as soon as practicable on a rolling basis.
                                                18
that a record does not qualify as an education record for FERPA/loss of funding
purposes unless it directly relates to a student. Central Dauphin Sch. Dist. v. Hawkins,
199 A.3d 1005 (Pa. Cmwlth. 2018).


             Qualifying education records are also customarily maintained in a
student’s academic file. This Court explained that the “maintained by” aspect of the
definition entails more than mere possession by an educational institution. See W.
Chester Univ. of Pa. v. Rodriguez, 216 A.3d 503 (Pa. Cmwlth. 2019) (holding emails
of university were not education records under FERPA). This means there must be
some formality to maintenance, such as monitoring or “logging requests for access”
to the records. Id. at 509. Consistent with federal case law, we found that emails
stored in the ordinary course of business are not, “without more, maintained by the
institution.” Id. (following the progeny of Owasso Indep. Sch. Dist. v. Falvo, 534
U.S. 426 (2002)).


             Also, the potential loss of federal funding is not a basis for imposing
this exception. Hawkins. In Hawkins, we explained “Section 708(a)(1) requires
more than the mere possibility of a loss of federal funds.” Id. at 1016. Further, we
recognized that, under FERPA, the loss of federal funding “is reserved for schools
that have a ‘practice’ or ‘policy’ of releasing education records.” Id.


             Here, the University did not establish that the records at issue are
maintained by the University in files directly related to students under FERPA.
Moreover, the University also alleged only the possibility of the loss of federal
funding; this does not suffice. Id. Accordingly, OOR did not err in holding the


                                          19
University did not meet its burden to prove that Section 708(b)(1)(i) applied. As a
result, OOR properly directed disclosure of records withheld or redacted under
FERPA that were not otherwise exempt under another proven exception.


                                        IV. Conclusion
               We discern no abuse of discretion by OOR in developing the record.
On the merits, for the foregoing reasons, we affirm OOR’s Final Determination with
modification to confirm disclosure of the records OOR deemed public, as well as
emails exchanged between ABI and the University before its hire.14 See Pa. State
Troopers Ass’n v. Scolforo, 18 A.3d 435 (Pa. Cmwlth. 2011) (affirming OOR’s order
with modification to alter disclosure of records by agency). The University shall
disclose records in accordance with the Final Determination as modified herein, and
shall confirm that the records disclosed comply with the disclosure order as modified
as set forth in the following order.



                                              _______________________________
                                                J. ANDREW CROMPTON, Judge
       14
          However, we caution OOR that when an agency submits records in redacted form, and
alludes to additional records in its supporting statements and argument, it is incumbent upon OOR
to identify the records subject to disclosure, whether by bates-label or otherwise, in its
determination. See Office of the Governor v. Davis, 122 A.3d 1185 (Pa. Cmwlth. 2015).
According to Counsel, the University identified 3,168 potentially responsive records, yet the
record is not clear how many of those she deemed actually responsive. On this record, it is not
evident that the 458 bates-labeled pages comprise all responsive records, and the University’s
partial denial stated that an unspecified number of documents were withheld. R.R. at 396a.
Therefore, we affirm OOR’s Final Determination as modified to require the disclosure of records
to which an exception did not apply paired with a verified or sworn statement by Counsel that the
records disclosed pursuant to the Final Determination comprise the entirety of records withheld
under FERPA and, as to the predecisional deliberative exception, those records that did not qualify
for protection because they were not internal or not deliberating attendant care services. Also, the
statement shall confirm the disclosure of all records responsive to the Requests, to which an
exception was not established, that the University withheld based on its specificity challenge.
                                                20
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bill Schackner and The Pittsburgh              :
Post-Gazette,                                  :
                        Petitioners            :
                                               :
                 v.                            :       Nos. 785 C.D. 2019
                                               :            786 C.D. 2019
Edinboro University,                           :
                           Respondent          :

Edinboro University of Pennsylvania,           :
                        Petitioner             :
               v.                              :       No. 809 C.D. 2019
                                               :
Bill Schackner and The                         :
Pittsburgh Post-Gazette,                       :
                           Respondents         :

                                     ORDER

             AND NOW, this 27th day of April 2020, the final determination of the
Office of Open Records (OOR) is AFFIRMED AS MODIFIED to require
disclosure by Edinboro University of Pennsylvania (University) to Requester Bill
Schackner of The Pittsburgh Post-Gazette of communications to and from the
University’s contractor, A Bridge to Independence (ABI), before it became the
University’s agent as explained in the accompanying opinion.             OOR’s final
determination and disclosure order is affirmed in all other material respects.


             AND FURTHER, the final determination is SUPPLEMENTED to
require the University to submit a sworn or verified statement of legal counsel
corresponding to the records deemed subject to disclosure by OOR, as modified by
this Court. The statement shall confirm the general content of the records disclosed,
including that the disclosure contains the following, provided that the records were
not otherwise protected by another proven exception: all records the University
withheld or redacted under Section 708(b)(1) of the Right-to-Know Law (RTKL);1
and all communications exchanged between the University and ABI that the
University withheld under Section 708(b)(10) of the RTKL before ABI became an
agent of the University, and those exchanged after when communications concerned
the contractor’s location. The verified or sworn statement shall also confirm the
disclosure includes any records withheld based on the University’s specificity
challenge to which an asserted exception was not upheld by OOR, and affirmed as
modified by this Court.



                                                    ______________________________
                                                    J. ANDREW CROMPTON, Judge




      1
          Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
