FINAL DETERMINATION IN THE MATTER OF TRICIA MEZZACAPPA, Complainant v.

BOROUGH OF WEST EASTON, Respondent : : : : : : : : : :

Docket No: AP 2013-0853

INTRODUCTION Tricia Mezzacappa (Requester) submitted a request (Request) to the Borough of West Easton (Borough) pursuant to the Right-to-Know Law, 65 P.S. 67.101 et seq., (RTKL) seeking meeting minutes, check lists, and information related to a DUI Center impact fee. The Borough partially denied access claiming that responsive records were previously provided to the Requester. The Requester appealed to the Office of Open Records (OOR). For the reasons set forth in this Final Determination, the appeal is granted and the Borough is required to take further action as directed. FACTUAL BACKGROUND On May 13, 2013, the Request was filed seeking: (1) minutes and check lists approved at Borough Council meetings in December 2012 and January of 2013; (2) documents showing the receipt DUI Impact fee funds since September 2012; and (3) the year to date check list for 2012 organized by budgetary item called the expenditure History Report. With respect to Item 1

2 of the Request, the Requester specified that she was specifically not seeking an email from the jail explaining what a census is. The Requester also provided examples of records she

considered responsive to Item 2 of the Request, including a copy of the check received, the deposit slip to deposit the funds received, a bank wire or ACH credit on a bank statement, the accounting report posting the cash to a revenue account, or any other source you have on file to show the receipt of these funds. After invoking a thirty (30) day extension to respond pursuant to 65 P.S. 67.902, the Borough granted access to the records requested in Items 1 and 3 of the Request. The Borough denied access to Item 2 of the Request claiming that responsive records were provided to the Requester in response to a March 14, 2013 request. On May 11, 2013, the Requester appealed to the OOR arguing that the Borough did not provide all records responsive to Item 2 of the Request and improperly utilized a thirty (30) day extension to respond to the Request.1 The OOR invited both parties to supplement the record and directed the Borough to notify any third parties of their ability to participate in this appeal pursuant to 65 P.S. 67.1101(c). On May 15, 2013, the Requester submitted a verified position statement claiming that the records the Borough previously provided were not responsive to Item 2 of the Request. On May 22, 2013, the Borough submitted the affidavit of Peter Layman, Esq., the Borough Open Records Officer, attesting that the Borough previously provided the Requester with all records responsive to Item 2 of her Request and no additional documents are available.

The Requester does not challenge the sufficiency of the records provided by the Borough in response to Items 1 and 3 of the Request. As a result, the Requester has waived any objections as to those Items. See DOC v. OOR, 18 A.3d 429 (Pa. Commw. Ct. 2011).

LEGAL ANALYSIS The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government. SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions. Bowling v. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted 15 A.3d 427 (Pa. 2011). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S. 67.503(a). An appeals officer is required to review all information filed relating to the request and may consider testimony, evidence and documents that are reasonably probative and relevant to the matter at issue. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing is

discretionary and non-appealable. Id.; Giurintano v. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The Borough is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. 67.302. Records in possession of a local agency are presumed public unless exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65 P.S. 67.305. Upon receipt of a request, an agency is required to assess whether a record requested is within its possession, custody or control and respond within five business days. 65 P.S. 67.901. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. 67.708(b).

Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence. 65 P.S. 67.708(a). Preponderance of the evidence has been defined as such proof as leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). 1. An agency may exercise its discretion to extend the response period pursuant to Section 902 of the RTKL

On appeal, the Requester claims that the Borough improperly invoked an extension to respond to a simple request. Section 902 of the RTKL places the discretion to determine whether an extension of time is needed with the agency if it determines that one of the enumerated factors in Section 902(a) applies. See 65 P.S. 67.902; Thompson v. Dickinson Township, OOR Dkt. AP 2012-0292, 2012 PA O.O.R.D. LEXIS 42 (citing Cap v. City of Allentown, No. 2011-C-3533 (Lehigh Com. Pl. Jan. 20, 2012)). Here, the Borough determined that it required an additional thirty (30) days during which to respond to the Request because the Request required legal review and possible redaction of documents and due to bona fide and specified staffing limitationsboth factors enumerated in Section 902(a) of the RTKL. In addition, the Borough issued its extension notice on April 1, 2013, within five (5) business days of the date the Request was received as required by Section 902(b)(1) of the RTKL. As a result, the Borough exercised its discretion to invoke a timely extension to respond the Request and

matters committed to agency discretion are not subject to the jurisdiction of the OOR. See Dept. of Pub. Welfare v. Froehlich, 29 A.3d 863 (Pa. Commw. Ct. 2011). 2. The Borough must provide records responsive to Item 2 of the Request

On appeal, the Borough claims that, in response to a prior request for records from the Requester, it provided all records responsive to Item 2 of the Request. The RTKL provides that [a]n agency may deny a requester access to a record if the requester has made repeated requests for that same record and the repeated requests have placed an unreasonable burden on the agency. See 65 P.S. 67.506(a)(1). Under this section an agency must demonstrate that (1) the requester has made repeated requests for th[e] same record[(s)] and (2) the repeated requests have placed an unreasonable burden on the agency. Office of the Governor v. Bari, 20 A.3d 634, 645 (Pa. Commw. Ct. 2011); see Slate v. DEP, OOR Dkt. AP 2009-1143, 2010 PA O.O.R.D. LEXIS 97 (A repeated request alone is not enough to satisfy 506(a)(1)). The OOR has held that repeated requests for the same records, although phrased differently, may be denied as disruptive. See Cohen v. Dept. of Labor & Industry, OOR Dkt. AP 2009-0296, 2009 PA O.O.R.D. LEXIS 159; Dougher v. Scranton, OOR Dkt. AP 2009-0798, 2009 PA O.O.R.D. LEXIS 318 (Slight differences in phraseology do not preclude application of [Section 506(a)]). On appeal, the Borough claims that the instant Request was properly denied because the Requester was previously given copies of related records. However, the Borough does not claim or provide evidence that it received a previous request from the Requester seeking the same records as in the instant Request. In addition, the Borough did not provide any supporting evidence that, even if the Requester filed a repeated request for the same records, that the Borough was unreasonably burdened with having to respond to the Requester's second RTKL

request. As a result, the Borough has not established that the Request was disruptive under 65 P.S. 67.506(a)(1). CONCLUSION For the foregoing reasons, Requesters appeal is granted and the Borough is required to provide all responsive records within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Northampton County Court of Common Pleas. 65 P.S. 67.1302(a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at: http://openrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED: June 12, 2013

_________ APPEALS OFFICER BENJAMIN A. LORAH, ESQ. Sent to: Tricia Mezzacappa (via e-mail only); Peter Layman, Esq. (via e-mail only);