Office of Open Records erred in granting records request to Pittsburgh newspaper, Commonwealth Court says

By Nicholas Malfitano | Aug 25, 2015

Commonwealth Court Judge P. Kevin Brobson  

HARRISBURG – The Commonwealth Court of Pennsylvania has reversed a 2014 decision that granted access to a series of emails sought by the Pittsburgh Post-Gazette under the Right-To-Know Law (RTKL).

Judges Dan Pellegrini, Bernard L. McGinley and P. Kevin Brobson decided the case, as Brobson wrote the Court’s July 14 opinion to reverse the Office of Open Records' original determination.

On Aug. 5, 2014, the Post-Gazette filed a RTKL request with the Pennsylvania Department of Education (PDE) seeking “all of the emails of Acting Secretary of Education Carolyn Dumaresq as they pertain to the performance of her duties as Acting Secretary, since she was appointed on Aug. 23, 2013 to date.”

The PDE notified the Post-Gazette asking for clarity and specificity on which records were sought, particularly since the request period covered one year, but the Post-Gazette declined to provide specifics in an Aug. 25, 2014, response letter to the PDE.

The PDE issued its final response on Sept. 11, 2014, denying the request as “insufficiently specific” under Section 703 of the RTKL – an action that led the Post-Gazette to appeal to the OOR on Sept. 24.

The OOR issued a Notice of Appeal the next day that notified the requester and PDE that any information or legal argument they wished to submit was due by 5 p.m. on Oct. 6. 

The PDE submitted its statement dated Oct. 6, again arguing the request lacked specificity because “it did not specify a subject matter or individual correspondents.”

The PDE further argued that if OOR found the request was sufficiently specific, PDE should “be given an opportunity, following that determination, to fully prepare the records for review and redaction, and cite all applicable exemptions” and be allowed to require pre-payment of fees if the estimate exceeds $100.

On Oct. 24, the OOR determined: “(1) The Request was sufficiently specific; (2) PDE could not seek pre-payment of fees because it failed to include an estimate in its initial response; (3) PDE could not bifurcate the proceedings before OOR—i.e., PDE was required to assert any applicable exemptions or privileges at the time of the appeal and could not seek to assert them after losing the specificity challenge; and (4) PDE failed to establish that any exemptions or privileges applied to the requested records.”

Therefore, the OOR granted the Post-Gazette’s appeal and ordered the PDE to provide it with all responsive records within 30 days. 

Subsequently, the PDE appealed the entire four-pronged determination to the Commonwealth Court, basing its objection on Section 703 of the RTKL, which requires “records sought with sufficient specificity to enable the agency to ascertain which records are being requested.”

“When considering a challenge to the specificity of a request under Section 703 of the RTKL, this Court employs a three-part balancing test, examining the extent to which the request sets forth (1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought,” Brobson said.

Brobson added that in applying the three-part test, the Court noted the request identifies a finite timeframe of 347 days (Aug. 23, 2013, to Aug. 5, 2014), and limits the scope of the request – emails to and from Secretary Dumaresq.

“What the request fails to specify, however, is the subject matter of the request – i.e., the transaction or activity of the agency for which requester seeks information. Requester argues that the subject matter of the request is specific because it only seeks e-mails as they pertain to the performance of her duties as Acting Secretary,” Brobson said.

“This, however, does not provide a context by which the Request can be narrowed; it is, by virtue of the Secretary’s position, a request for emails about all of the agency’s activity overly nearly a one -year period.” 

Brobson termed the Post-Gazette’s records request “a fishing expedition” and the one-year time frame “not short enough to save what is, because of requester’s failure to identify a subject matter narrower than ‘all agency activity,’ an otherwise overbroad request.”

“In sum, the request seeks all e-mails of Secretary Dumaresq over a one-year period, without limiting the subject matter of the request in any meaningful way and is, therefore, insufficiently specific under Section 703 of the RTKL. Thus, OOR erred in concluding the request was sufficiently specific. Accordingly, the final determination is reversed,” Brobson said.

The petitioner is represented by Patrick C. Lord, in Harrisburg. 

The respondent is represented by Frederick N. Frank of Frank, Gale, Bails, Murcko & Pocrass, in Pittsburgh.

The Commonwealth Court of Pennsylvania case 2095 C.D. 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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