Pennsylvania Office of Attorney General v. Philadelphia Inquirer

OPINION BY

The Pennsylvania Office of Attorney General (OAG) petitions for review of a determination of'its- designated Right-to-Know Law (RTKL)1 Appeals Officer (Appeals Officer)2 finding that the receipt and transmission of pornographic emails is an “activity” because it memorializes an employee’s improper use of time and resources making it a “public record” within the meaning of Section 102 of the RTKL, 65 P:S. § 67.102. Section 102 defines “public record” as “[a] record ... of a Commonwealth ... agency,” and defines “record” as “[^Information ... that documents a transaction or activity of any agency that is created, received, or retained pursuant to law or in connection with a transaction, business or activity of the agency.” Id.

In August 2014, Amy Warden, á staff writer for the Philadelphia Inquirer' (Re-questor), submitted a RTKL request to. the OAG seeking copies of all emails that *59were “of a personal nature and involve[ ] pornographic ' or otherwise inappropriate material” to or from the accounts of three former OAG employees3 from 2009 until they left the OAG in late 2012 or early 2013,-including “all recipients of the-email chains that shared in this email and include the actual emails.” (Reproduced Record (RR) at 1). Requestor later amplified the request to include 11 named employees 4 and all “former and current office staffers and other former and current state officials” from 2005 to the present and sought emails that violated OAG policy which' prohibited using computers to access, download or distribute sexually suggestive pornographic or obscene material. (Id. at 5). The request again included “all participants in the • email chains that, shared in this email — even if that includes several hundred people — and include the actual emails, from their point of origin on.” (Id.).

The OAG’s designated right-to-know Officer denied the request for the personal emails determining that':

• because a request seeking emails of a personal nature or that “are professionally inappropriate” was not sufficiently specific description as required by Section 703 of the RTKL5 for the OAG to search and identify subject to the request. Moreover it was not sufficiently specific because in defining “pornographic,” it relied on the definition of that term in Black’s Law Dictionary (6th Ed.) to discern if some responsive documents exist;

• the’request was'burdensome because it “seeks records over an almost ten year period of time between a large universe of individuals;

• to the extent the requested “pornographic” emails exist, they were not disclosable “records” under the RTKL because their contents do not “document transaction or activity” of the OAG and they were not “created, received, or "retained” by the personnel in connection with their position as public officials to further OAG business; and

• even if the emails are “records,” they are exempt from disclosure under the non-criminal investigation exemption in Section 708(b)(17)(vi)(A) of the RTKL6 “because they have now become part of an ongoing internal investigation” of the violation of OAG policies on the appropriate use of its equipment that would reveal the progress or result of this investigation.

Requestor appealed to the OAG’s designated Appeals Officer.

. The Appeals Officer initially determined that because the request for “personal” or “inappropriate” emails was not sufficiently specific under Section >703 of the RTKL for the OAG to respond to the request, the OAG did not have to comply with that portion of the request. However, she found that the request for “pornographic” emails was sufficiently specific to allow the *60OAG to determine which emails fall into that category. The Appeals Officer found that while the requested time period and universe of names to be . searched is “ex-pansile,” there is no basis in the record to conclude that the request would be an unreasonable burden on the OAG because the OAG will know the records sought with sufficient specificity when limited to pornographic emails.

The Appeals Officer also determined that the request could not be denied on the basis that the emails are not a “record” or “public record.” She noted that “[n]pt all emails are records” and that this Court “has held that not all emails are accessible under the RTK[L] simply because they evidence ‘communications of a public official.’ Such a broad construction would ignore those decisions emphasizing content and interpreting ‘records’ in the context of emails.” (RR at 31) (citations omitted). Finding that while the requested emails do not prove, support or evidence a transaction in which the OAG is engaged, the use of emails to transmit pornographic material is an “activity” documenting an employee’s improper use of an agency’s time and resources making it a “record” within the meaning of the RTKL. (Id. at 32-33).

The Appeals Officer further determined that the non-criminal investigation exemption of Section: 708(b)(17)(vi)(A) required the OAG “to. demonstrate that ‘a systematic or searching inquiry, a detailed examination, or an official probe’ is being conduct-, ed regarding a noncriminal matter.” (RR at 34) (citation omitted). She explained that the OAG did not offer any affidavits to support the eonclusory statements ■ of the right-to-know Officer that the emails may be relevant to an investigation, of OAG policies and the appropriate use. of OAG equipment which would reveal the progress or result of the OAG investigation. She noted, “In fact, there is no evidence of an' actual investigation except for. the statement of the RTK Officer.” (Id. at 35). The Appeals Officer stated that it was the OAG’s burden to rebut the presumption of “public record” in Section 305(a) by a preponderance of the evidence and that “a bold statement made by the RTK Officer in her letter is not sufficient” because “it does not constitute evidence— much less a preponderance — to establish either that an ongoing investigation is in process or that the requested emails bear any relationship to such an investigation.” (Id.).

As a result, the Appeals Officer directed the OAG to produce copies of all email traffic involving pornographic material to and from the wox-k accounts of current and former OAG office staffers and other current and former state officials from 2005 to the present, including all participants in the erhail chains and including the actual emails from their point of origin on. The OAG then filed the instant petition for review.

The' core issue on appeal7 is whether personal emails are public records within the meaning of the RTKL so that the agency is compelled to produce them under a RTKL request because they document the conduct of that agency.

,In making a determination that the information sought is a “public record,” a requestor must establish that the information sought falls within the definition of a “record” of the agency as defined in Section 102 the RTKL. Office of Governor v. Bari, 20 A.3d 634, 640 (Pa.Cmwlth.2011). To establish that it is a public récord, “the *61requestor must meet a two-part test: First, the information must ‘document a transaction or activity of the agency.’ Recently, this Court ... interpreted ‘documents’ to mean ‘proves, supports [or] evidences.’ Second, the information must be ‘created, received, or retained’ in connection with the activity of the agency.” Barkeyville Borough v. Stearns, 35 A.3d 91, 94-95 (Pa.Cmwlth.2012) (citation omitted).

We addressed whether private emails using a public email address are public records in Easton Area School District v. Baxter, 35 A.3d 1259 (Pa.Cmwlth.), appeal denied, 617 Pa. 641, 54 A.3d 350 (2012). 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 board for a one-month period. The school district denied the request on various grounds, but the Office of Open Records reversed and directed the school district to provide all responsive emails subject to the redaction óf “pérsonálly identifiable information.” On appeal, the trial court held that because the emails were sent and received from school district email addresses, were stored on the school district’s server, and were the school district’s property under its “Acceptable Use Policy,” they were public records subject to disclosure under the RTKL subject to the appropriate redactions.

On appeal to this, Court, the school district again argued, inter alia, that the emails,to or from individual school board members’ email addresses do not qualify as public records subject to disclosure under the RTKL. We examined case law from other jurisdictions8 and concluded:

*62We agree with those cases 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 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.

Easton Area School District, 35 A.3d at 1264. See also Meguerian, 86 A.3d at 930 (“For emails to qualify as records ‘of- an agency,- we look to the subject-matter of the records. Emails are not considered records of an agency simply because they are sent or received using an agency email address or by virtue of their location on an agency computer. The emails must document a transaction or activity of the responding agency”) (citations omitted).

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 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.”

Acknowledging those cases, Requestor contends that while the requested emails do not document an agency transaction or activity per se, they become a public record because they document a violation of agency policy and that transforms them into an “activity of the agency” and makes them a public record under the RTKL.9 If that reasoning were to be adopted, that would mean that if an employee sends what are purportedly pornographic emails, uses the government email for business, or just overuses the email system, those emails would also be subject *63to disclosure. Moreover, that-reasoning is broad enough to encompass a request for all personal emails on the basis that the requestor wants to know if the agency is enforcing its policy to make sure that violations do not occur, if we were to adopt that view, then no personal emails would ever be exempt from disclosure because that principle is sufficiently broad to encompass all personal emails, and they would all have to be disclosed to determine whether an agency is properly enforcing its fair use email policy.

In this case, the records sought are emails that were either sent to or from an OAG email address or retained by the recipient in violation of OAG policy. The fact that they were sent, received or retained in violation of OAG policy, does not transform what was not a public record into a public record under the RTKL. For emails to qualify as records “of’ an agency, we only look to see if the subject-matter of the records relate to the agency’s operations. None of the requested emails remotely relate to OAG operations or any “transaction” or “activity” of that agency. The emails only related to personal activity of individuals.10 While' the public has the right to access “records” relating to OAG ^employees and its “transactions” or “activities,” the RTKL does not compel disclosure of all OAG emails solely on the basis that they, violate ÓAG policy. As a result, the requested emails are not disc-losable as records under the RTKL merely because they were sent or received using an OAG email address or by virtue of their location on an OAG computer in violation of OAG policy. Easton Area School District.11

One final comment that is necessary given all of the statements that the Attorney *64General has made regarding the release of this information. We want to make clear that we are only stating that the RTKL does not compel her to release the requested emails and, while there may be other legal reasons that prevent her from doing so, nothing in this opinion precludes her from releasing the emails.

Accordingly, the Appeals Officer’s determination requiring OAG to provide copies of alb email traffic involving pornographic material to and from OAG email addresses of former and current office staffers and state officials from 2005 to the present, including all participants in the email chains that shared in the emails, including the actual emails from them point of origin on, is reversed.

ORDER

AND NOW, this 19th day. of November, 2015, that portion of the Final Determination of the Office of Attorney General Appeals Officer dated October 23, 2014, at SR-59467-MF2T, denying the disclosure of the requested emails of the Pennsylvania Office of Attorney General (OAG) is affirmed; that portion of the Final Determination requiring the disclosure of the requested OAG emails is reversed.