           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kutztown University of Pennsylvania,             :
                        Petitioner               :
                                                 :
                v.                               :   No. 5 C.D. 2019
                                                 :   Submitted: July 26, 2019
David Bollinger,                                 :
                               Respondent        :


BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE CHRISTINE FIZZANO CANNON, Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                                 FILED: September 13, 2019


                Kutztown University of Pennsylvania (the University) petitions for
review of the December 5, 2018 final determination (Final Determination) of the
Pennsylvania Office of Open Records (OOR) under the Right-to-Know Law
(RTKL).1 In the Final Determination, the OOR granted, in part, the appeal of David
Bollinger (Respondent)2 and directed the University to provide Respondent with an
unredacted copy of a record pursuant to Respondent’s RTKL request. For the
reasons that follow, we affirm, in part, and vacate, in part, the Final Determination.


       1
           Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
       2
          By order dated July 19, 2019, this Court precluded Respondent from filing a brief for
failure to conform to this Court’s earlier order directing Respondent to do so. Respondent is not
represented by counsel on appeal.
                 On September 21, 2018, Respondent filed a RTKL request with the
University, requesting:
                 1.)     The identities of the individuals on the search
                         committee for the job of Assistant Director of
                         Campus Services.

                 2.)     The number of applicants to the position.

                 3.)     The credentials of the hired applicant. Job history,
                         licenses, etc.

(Reproduced Record (R.R.) at 1a.) The University granted Respondent’s request
with respect to the second and third items listed.3 With respect to the first listed
item, however, the University denied the request on the basis that it sought
information exempt from disclosure pursuant to Section 708(b)(10)(i)(A) of the
RTKL, 65 P.S. § 67.708(b)(10)(i)(A),4 relating to internal, predecisional
deliberations.




       3
          The University provided a record showing that the number of applicants for the position
was 14. It also provided a copy of the hired applicant’s resume listing his credentials, including
his job history and licenses.
       4
           Section 708(b)(10)(i)(A) of the RTKL provides:
       (b) Exceptions.—Except as provided in subsections (c) and (d), the following are
           exempt from access by a requester under [the RTKL]:
           ....
             (10)(i) A record that reflects:
                 (A) 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.

                                                 2
              Respondent appealed the University’s partial denial of the request to
the OOR on November 4, 2018. On November 20, 2018, the University provided
Respondent with a document entitled “Assistant Director of Campus Services
Candidate Review July 2018” (Review Form). (R.R. at 34a.) The Review Form
lists the names of the search committee members and the date on which the
committee conducted its review. The University redacted the other portions of the
Review Form and explained in a cover letter to Respondent that “[t]he redactions
are   based    on    the   exemption     for   predecisional    deliberations    under
[S]ection 708(b)(10)(i)(A) of the [RTKL].” (Id. at 33a.) The University then
submitted a position statement to the OOR explaining that it had provided
Respondent with all records responsive to his request and that it had redacted the
Review Form pursuant to the RTKL’s predecisional deliberations exception.
              In the Final Determination, the OOR acknowledged that the University
had granted the request with respect to the second and third items requested. With
respect to the first listed item of the request (concerning the identities of committee
members), the OOR concluded: “During the course of the appeal, the University
provided a document containing the identities of the individuals on the search
committee . . . . Accordingly, the appeal is dismissed as moot as to this information.”
(R.R. at 38a.) The OOR also concluded that the University failed to prove that the
redacted portion of the document produced is exempt from disclosure. In support of
that conclusion, the OOR noted that the University had submitted no sworn
statement to serve as competent evidence that the predecisional deliberations
exception applies. The OOR granted, in part, and dismissed as moot, in part,
Respondent’s appeal and directed the University to provide an unredacted copy of
the Review Form.


                                          3
               On appeal,5 the University first argues that the OOR erred in failing to
dismiss as moot Respondent’s appeal in its entirety. It emphasizes that the denied
portion of the request sought “‘the identities of members of the search
committee . . .’ and nothing more” and points out that Respondent received all of the
information he requested. (Br. of Petitioner at 11.) Because the Final Determination
itself acknowledged that the University had provided all requested information, the
University insists that the OOR should have dismissed the appeal as moot. In the
alternative, the University argues that, for two reasons, the OOR erred in ordering
disclosure of the unredacted Review Form. First, the University asserts that the
redacted information is not responsive to the request and that the OOR, in forcing
its disclosure, impermissibly broadened Respondent’s request.                       Second, the
University argues that, based on the face of the Review Form itself, the redacted
information is exempt from disclosure because it contains the internal, predecisional
deliberations of the University. 6
               We first address whether, as the University argues, the OOR erred in
failing to dismiss the instant case as moot. A case is moot if, at any stage of the
litigation, there is no actual controversy between the parties. Phila. Pub. Sch.
Notebook v. Sch. Dist. of Phila., 49 A.3d 445, 448 (Pa. Cmwlth. 2012) (Philadelphia
Notebook). In the RTKL context, an appeal from the OOR’s determination becomes

       5
        On appeal from the OOR in RTKL cases, this Court’s standard of review is de novo and
our scope of review is plenary. Bowling v. Office of Open Records, 75 A.3d 453, 477 (Pa. 2013).
       6
         Having reviewed the entire record from the OOR and on appeal to this Court, we find no
argument whatsoever from Respondent regarding the redacted portions of the Review Form.
Respondent’s only argument—submitted to the OOR along with the initial appeal notice—is that
the identities of the committee members are not exempt from RTKL disclosure. Given that
Respondent has now received that information and has made no further argument before the OOR
or this Court, it is not clear that Respondent objects to the redactions at issue or even desires to
obtain the redacted information.

                                                 4
moot when the agency provides the requested records to the requester in full. See id.
at 449 (“Once [the school district] provided [the r]equester with the [responsive
record], the present case became technically moot.”). “Although we generally will
not decide moot cases, exceptions are made when . . . the conduct complained of
[(1)] is capable of repetition yet evading review, or (2) involves questions important
to the public interest, or (3) will cause one party to suffer some detriment without
the Court’s decision.” Cytemp Specialty Steel Div., Cyclops Corp. v. Pa. Pub. Util.
Comm’n, 563 A.2d 593, 596 (Pa. Cmwlth. 1989).
               Here, the only portion of Respondent’s request that the University
initially denied was the first listed item, seeking “[t]he identities of the individuals
on the search committee.” (R.R. at 1a.) When responding to that request, the
University was obligated to disclose the requested “records” not shown to be exempt
from public access. Section 701 of the RTKL, 65 P.S. § 67.701. “A ‘record’ subject
to disclosure under the [RTKL] includes information regardless of form.” Dep’t of
Envtl. Prot. v. Cole, 52 A.3d 541, 547 (Pa. Cmwlth. 2012) (internal quotation marks
omitted) (discussing Section 102 of the RTKL7). The “record” which Respondent
requested and sought on appeal to the OOR consists entirely of information—i.e.,
the identities of the individuals on the search committee—rather than a document.
The University provided precisely the requested information when it sent
Respondent the redacted Review Form. Once the University had complied entirely

      7
          65 P.S. § 67.102. Section 102 of the RTKL defines the term “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 maintained electronically and a data-processed or
      image-processed document.


                                                5
with the request by providing Respondent with the final outstanding record
identified in the request, there ceased to be any actual controversy in this matter. See
Philadelphia Notebook, 49 A.3d at 448. As the OOR recognized, this rendered
Respondent’s appeal moot.8 As a result, the OOR’s analysis should have ended
there. Thus, the OOR erred when it granted Respondent’s appeal in part by requiring
disclosure of the unredacted Review Form. We will, therefore, affirm the Final
Determination with respect to the OOR’s dismissal of Respondent’s appeal as moot
but vacate the Final Determination to the extent it granted Respondent’s appeal in
part.




                                                P. KEVIN BROBSON, Judge




        8
          None of the exceptions to the mootness doctrine apply in this matter. First, any future
denials or redactions by the University will not evade review because nothing prevents Respondent
from appealing to the OOR and this Court in the context of a future RTKL request. Second, the
merits of this matter involve a fairly routine analysis of an agency’s compliance with a RTKL
request, and do not present the “exceptional circumstances” that would invite us to consider a moot
question. See Wortex Mills, Inc. v. Textile Workers Union of Am., C.I.O., 85 A.2d 851, 857
(Pa. 1952). Finally, Respondent will not suffer a detriment without a decision, because he has
received all records responsive to his request.

                                                6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Kutztown University of Pennsylvania,      :
                        Petitioner        :
                                          :
             v.                           :   No. 5 C.D. 2019
                                          :
David Bollinger,                          :
                          Respondent      :



                                     ORDER


             AND NOW, this 13th day of September, 2019, the Final Determination
of the Office of Open Records (OOR), dated December 5, 2018, is AFFIRMED, in
part, to the extent that it denied Respondent’s appeal as moot, and is VACATED, in
part, to the extent that it granted Respondent’s appeal.




                                          P. KEVIN BROBSON, Judge
