Lackawanna County Government Study Commission v. Scranton Times, L.P.
Opinion of the Court
This appeal under the Right to Know Law (RTKL), 65 P.S. § 67.101 et seq., concerns a local newspaper’s request for unredacted copies of three emails contained in the investigative materials that were produced for public inspection by
In his report, which was issued seventy-eight days after the Commission had adopted its final report of findings and recommendations, the private investigator reviewed the assigned items but did not provide any analysis of the available forms of county government or how another form of government would be more efficient or accountable. Based upon “several concerns” expressed by unidentified “stakeholders” regarding the “actions of airport personnel,” the private investigator recommended “an independent investigation by an outside law enforcement agency.” On its final day of existence under the Home Rule Charter and Optional Plans Law (“HRC & OPL”), 53 Pa. C.S. § 2901 et seq., the Commission adopted a resolution authorizing the private investigator to deliver his “full and complete findings to law enforcement,” and the investigator
Under the RTKL, any documents within the actual or constructive possession of the Commission and its private investigator are presumed to be public records that must be made available to a requester unless they are exempt under an enumerated statutory exception. The Commission concedes that the private investigator’s records are generally discoverable under Section 506(d)(1) of the RTKL, 65 RS. § 67.506(b)(1), but the Commission and its private investigator contend that his materials are nonetheless exempt from disclosure by 65 RS. § 67.708(b) (17) governing records “relating to a noncriminal investigation.” The Commission and the investigator bear the burden of proving that the unredacted records being sought by the newspaper are protected from disclosure under the “noncriminal investigation” exemption, which exemption must be narrowly construed due to the RTKL’s remedial nature.
For the investigator’s materials to be exempt from disclosure under the “noncriminal investigation” exemption, appellate authority requires that: (1) the investigation be part of the Commission’s “official duties as established by [its] enabling legislation,” i.e., the HRC & OPL; and (2) the investigation be a systematic and recurrent examination, rather than “a one-time inquiry.” Under the HRC & OPL, the Commission’s “official duties” were to study the existing and available forms
Furthermore, even if the investigator’s “limited review” fell within the Commission’s “official duties,” the investigator’s materials still do not qualify for protection under the “noncriminal investigation” exemption. During the evidentiary hearing, the investigator admitted under oath that he conducted “a one-time inquiry,” which makes his investigative materials ineligible for the “noncriminal investigation” exemption under Commonwealth Court precedent. Additionally, the FBI has advised the investigator that it has no objection to the public disclosure of the investigator’s unredacted work papers, and the federal prosecutor similarly has confirmed in writing that his office “has no interest concerning the discoverability” of the records being sought in this RTKL appeal.
Consequently, the Commission and its investigator have not established that the investigator’s records, whether in
I. FACTUAL BACKGROUND
On May 21, 2013, the Lackawanna County electors approved a referendum question for the election of a government study commission, and elected seven individuals to serve as members of the Lackawanna County Government Study Commission (“the Commission”) “to study the existing form of government of Lackawanna County, to consider the advisability of the adoption of an optional form of government, and to recommend whether or not an optional plan of government should be adopted” in Lackawanna County. See In re Referendum Petition for Government Study Commission, 2013 WL 1103067, at *28 (Lacka. Co. 2013), aff’d, No. 430 C.D. 2013 (Pa. Cmwlth. April 15, 2013). The statutory authority of a government study commission is set forth in Section 2918 of Subchapter B of the HRC & OPL, which provides that “[t]he government study commission shall study the form of government of the municipality to compare it with other available forms under the laws of this Commonwealth and determine whether or not in its judgment the government could be strengthened or made more clearly responsible or accountable to the people or whether its operation could become more economical or efficient under a changed form of government.” 54 Pa.C.S. § 2918. Section 2920 of the HRC & OPL charges the government study commission with the responsibility to conduct “public
At the conclusion of its study, the government study commission must issue a report recommending one of four enumerated actions under Section 2923 of the HRC & OPL: (1) a referendum to adopt one of the optional plans of government; (2) a referendum to adopt a home rule charter; (3) that the form of government remain unchanged; or (4) any other action consistent with its functions under Subchapter B of the HRC & OPL. Pilchesky v. Lackawanna County, 88 A.3d 954, 966 (Pa. 2014) (citing 53 Pa.C.S. § 2923). If the government study commission recommends the adoption of an optional plan of government, its report must also specify the number of members to serve on the governing council, whether those members will be elected at-large, by district or on a combination at-large and district basis, the designation of those districts, whether the council manager will be elected by the voters or appointed by the council members, and whether the offices of treasurer and controller will be omitted, appointed or elected. See 53 Pa.C.S. § 2924; In re Referendum Petition for Government Study Commission, supra, at *27. Upon the discharge of the government study commission pursuant to 53 Pa.C.S. § 2922, “[a] 11 the records, reports, tapes, minutes of meetings and written discussions of the commission shall ... be turned over to the municipal clerk or secretaiy for permanent safekeeping and made available for public inspection at any time during regular business hours.” 53 Pa.C.S. § 2921(d).
At its first public meeting on June 27, 2013, the Commission elected Charles J. Volpe (“Volpe”) as
On November 26, 2013, the Commission’s counsel and a private investigator, James F. Seidel of Seidel Investigations and Consulting, Inc. (“Seidel”), executed a one page agreement by virtue of which the Commission retained Seidel “to perform a limited review (performance audit) of Lackawanna County’s financial and operating activities...to identify areas of County government that if changed, may reduce costs or streamline County government.”
The Commission’s counsel did report at the Commission’s hearing on January 8, 2014, that “an invoice from Seidel Investigations and Consulting...in the amount of $10,000.00” had “been paid by Mr. Volpe and his company, Excalibur,” and that “[Volpe] is not seeking reimbursement on that” invoice. (Transcript of Lackawanna County Government Study Commission Hearing on 1/8/14, filed as docket entry no. 34, at pp. 22, 27). The Commission’s counsel also reported that Seidel’s review was “still in the investigative process, but we fully anticipate by the end of February, beginning of March,” to have Seidel’s report “in written form for review by the Commission and the public.” (Id. at pp. 40-41).
Volpe announced during the Commission’s next public hearing on January 15, 2014, that the Commission had retained Seidel, a retired “twenty-six year special agent of the FBI,” to conduct “this investigation” into Lackawanna County “contracts that are in place at the [Lackawanna County] Recycling Center,...the [Wilkes-
On February 17, 2014, the Commission formally issued and unanimously adopted its “final report and recommendations for an Executive-Council Optional Plan of County Government” in compliance with Section 2921 of the HRC & OPL, 53 Pa.C.S. § 2921. (Transcript of Lackawanna County Government Study Commission Hearing on 2/17/14, filed as docket entry no. 38, at pp. 55-58). In its 21-page, single-spaced “report of findings and recommendations,” the Commission made no reference to Seidel or his investigation which had commenced on November 26, 2013. (Docket entry no. 37, at pp. 1-21). However, in the required attestation signed by the Commission’s members “listing in detail the funds, goods, materials and services, both public and private, used by the commission in the performance of its work and the preparation and filing of the report,” 53 Pa.C.S. § 2921(b), the Commission identified the $10,000.00 “Retainer” that Volpe had paid to Seidel on November 26, 2013. (Id., Exhibit D at p. 6 of 6).
In his report, Seidel stated that he “performed a limited review,” and that his “limited review identified several areas that we believe should be subjected to a more comprehensive review and, in certain instances, investigation regardless of the form of government selected by County taxpayers.” (Seidel Exhibit 1 at p. 1). Seidel’s report provides a general overview of the County’s finances, indebtedness, pension plan, health insurance expenses and real estate tax collections. (Id. at pp. 3-14). The report also contains abrief discussion of the operations of the County Stadium Authority and Transit System Authority. (Id. atpp. 19-22, 26-27).
The bulk of the Seidel report is devoted to examination of: the County’s lease and child care agreements with Hildebrandt Learning Center, (Id. at pp. 14-17, 30-64); the professional service operating agreement between the County Solid Waste Management Authority and Lackawanna Recycling Center, Inc., (Id. at pp. 17-19, 65-83); alleged .misconduct at the Wilkes-Barre/Scranton
Citing unidentified stakeholders who “voiced several concerns with respect to actions of Airport personnel,” Seidel’s report also mentions “missing parking garage money,” “payments made to Airport employees for use of airport facilities,” “vendor sponsored employee personnel trips and home remodeling,” “employees performing landscaping at an airport official’s home,” “contractor payment to airport employee,” “installation of excess carpeting of {sic) an employee’s residence,” “personnel {sic) use of airport vehicles,” and “removal of gas and supplies for personnel {sic) use.” {Id. atp. 23). Seidel states in his report that the foregoing “statements rise to a level necessitating an independent investigation by an outside law enforcement agency.” {Id. at p. 24). In his report’s conclusion, Seidel indicates that “[t]he current County Commissioners inherited an operation with massive losses that were pushing the County towards bankruptcy,” that it is “apparent that there are no near term resolutions,” and that the “County must focus its attention on how to contain
On May 15, 2014, Volpe, Giannetta, Seidel and the Commission’s counsel met with certain editors and reporters of The Scranton Times to discuss the public release of Seidel’s investigative report. (T. P. 10/16/14 at pp. 7-9, 32-33). During that meeting, Volpe and Seidel stated that the Commission would furnish The Scranton Times with a copy of Seidel’s report, but would not disclose the identities of the “stakeholders” that Seidel had interviewed. (Id. atpp. 15,21,30).OnMay 17,2014,Borys Krawczeniuk (“Krawczeniuk”) of The Scranton Times published an article regarding the Commission’s refusal to release the names of the individuals who were interviewed by Seidel. (Lackawanna County Exhibit No. 1). In his report, Krawczeniuk stated that Seidel’s report “contains references to some statements by unnamed people Mr. Seidel interviewed, but lacks evidence to support their statements,” as a result of which “the newspaper is not publishing it.” (Id.). Krawczeniuk further reported that “Mr. Seidel and Mr. Volpe refused to identify those interviewed or release supporting documentation, although Mr. Volpe said the backup documentation would be released Wednesday, but not the identities.” (Id.). Krawczeniuk also quoted Volpe as stating that “turning over everything unredacted to the [Lackawanna County] Commissioners could jeopardize any criminal investigation or subject commission members to prosecution for interfering with an investigation.” (T. P. 10/16/14 at p. 25).
The Commission thereafter provided The Scranton
On the date of the municipal primary election during which the electorate voted on the Commission’s referendum for the adoption of an executive-council optional plan of county government, the Commission conducted its final public meeting.
The Commission’s counsel clarified that the Commission was not claiming that information revealing the names of the stakeholders who were interviewed by Seidel “is not part of the report and is not public,” but instead maintained that “it’s just simply not public at this particular time.” {Id. at pp. 12-13). Volpe reiterated that if law enforcement authorities declined to prosecute, the identities of those individuals “will be revealed.” {Id. at p. 16). Giannetta likewise confirmed that the Commission merely wished to “give some time to law enforcement to be able to investigate any of these findings and determine whether they should be prosecuted,” with the understanding that “eventually at some point everything needs to be turned over to the public. {Id. at p. 21).
Consequently, the Commission’s counsel stated that Seidel was “going to, for lack of a better term, redact
On May 20, 2014, the Lackawanna County electorate did not approve the Commission’s referendum question for the adoption of the executive-council optional plan of county government. (Lackawanna County Exhibit No. 2). On June 4, 2014, the Commission delivered its records, reports, minutes and other materials to the Lackawanna County Commissioners Office in accordance with Section 2921(d) of the HRC & OPL. (Docket entry no. 19, Exhibit D). On that same date, Krawczeniuk and The Scranton Times, L.P. d/b/a The Times-Tribune (“The Scranton Times”), submitted a right-to-know request to the Commission seeking “an unredacted copy of the report compiled by Seidel Investigations & Consulting, Inc., including the names of stakeholders who provided information to the commission and whose names were either not mentioned in the report or whose names were concealed through active redacting of the report.” (Docket entry no. 19, Exhibit A; T. P. 10/16/14 atp. 18).
On June 6, 2014, the Lackawanna County Solicitor
On June 12, 2014, The Scranton Times filed a RTKL appeal with the Office of Open Records (“OOR”)
On July 10,2014, the OOR issued its final determination granting The Scranton Times’ appeal and directing the Commission “to provide an unredacted copy of the [Seidel] report within thirty (30) days.” (Docket entry no. 19, Exhibit L at p. 10). The OOR reasoned that the Commission is required to provide public access to any public records within its actual or constructive possession or control. (Id. at p. 6). Finding that “the Commission cannot attest to what the redacted information contains as it was never provided an unredacted copy of the [Seidel] report,” the OOR concluded that the Commission had not satisfied “its burden of proof that the redacted information
On August 8, 2014, the Commission filed the instant petition for review under 65 P.S. § 67.1302. (Docket entry no. 1). A scheduling order was issued on August 22, 2014, establishing deadlines for the filing of petitions to intervene, supporting and opposing briefs and witness/ exhibit lists, and scheduling this matter for an evidentiary hearing and oral argument on October 16, 2014. (Docket entry no. 4). Seidel and Lackawanna County filed petitions to intervene, (Docket Entry Nos. 10, 12), and were both granted leave of court to intervene. (Docket entry no. 13).
The Commission contends on appeal that it “clearly possesses the statutory authority under the Home Rule Law to conduct a noncriminal investigation in advancement of one of its primary goals of studying the existing form of government in Lackawanna County in an effort to make its statutorily prescribed recommendations under the Home Rule Law.” (Docket entry no. 15 atp. 5). The Commission posits that Seidel obtained information from “individual stakeholders” on the “condition of confidentiality,” and that “[t]heir testimony and information w[ere] instrumental in providing the [Commission] with information that allowed the commissioners to make their recommendations to the public within the statutorily prescribed time.” (Id., at p. 7). The Commission represents that “Seidel’s report was also submitted to law enforcement officials as the testimony by several of the confidential stakeholders and investigative findings uncovered potential criminal activity.” (Id.). While the Commission concedes that any materials in Seidel’s possession are deemed public records of the Commission under 65 P.S. § 67.506(d)(1), (Docket entry no. 8 at ¶22), it contends that those documents are nonetheless exempt from disclosure under 65 P.S. § 67.708(b)(17)(iii) and (v). (Docket entry no. 15 atpp. 11-12).
Seidel submits in his brief that the parties’ references to a “redacted report” and an “unredacted report” are “inaccurate” since “Seidel has authored one report, and one report only” which “does not identify the persons interviewed.” (Docket entry no. 17 at p. 4). Invoking the same statutory exceptions cited by the Commission, Seidel asserts that he is exempt “from disclosing to [The Scranton Times] or anyone else the identity of any
The Scranton Times argues “that the Commission did not have any legislatively granted power to conduct any noncriminal investigations” or a “performance audit.” (Docket entry no. 18 at p. 5). It further avers that since Seidel’s report post-dated the Commission’s adoption of its final report and recommendations, Seidel’s “untimely limited review served no legitimate purpose” other than “the purpose of politics” and an attempt to influence the electorate’s vote on the Commission’s recommended change in the form of government. (Id. at pp. 5, 6). However, “[s]ince the Commission took it upon itself to conduct an unofficial limited review under the color of the agency,” The Scranton Times submits that “any information gathered [by Seidel] is subject to disclosure under the RTKL.” (Id. at p. 6). Finally, The Scranton Times notes “that Seidel had no authority to promise confidentiality to any person interviewed while he was acting on behalf of the Commission, and Seidel has not offered any legal authority supporting his alleged power to grant confidentiality.” (Id. at p. 6).
Relying upon its designation “as the statutory custodian of all records and reports of the [Commission] after it is discharged,” Lackawanna County asserts that it has an affirmative “obligation to possess all records and reports” of the Commission, including an “unredacted copy of the Seidel report.” (Docket entry no. 19 at pp. 5-6). The County contends that since the Commission admits that any investigative materials within Seidel’s control are
During the evidentiary hearing on October 16, 2014, Seidel testified that he promised confidentiality to current Lackawanna County employees and other “stakeholders” that he interviewed during his investigation. (T. P. 10/16/14 atpp. 78-80,104). He stated that the identities of those individuals are not reflected in any written materials prepared by him, and testified that their identities have not been revealed to any Commission member or other person. (Id. atpp. 71-72, 76, 89,100). Seidel also claimed that although the names of the persons that he interviewed were contained in his handwritten notes of the interviews, he destroyed those notes after he placed the information furnished by the “stakeholders” in the “investigative inserts” of the binders.
With regard to the redacted identities of the individuals who forwarded emails to Seidel on February 4, 2014, February 5, 2014, and April 25, 2014, (see n. 3, supra), Seidel maintained that his computer “went bad the end of April of this year,” and that Seidel was required to have it serviced by T-R Associates. (T. R 10/16/14 at pp. 88-89). According to Seidel, “Alex at T-R Associates...called [Seidel] and he said listen, we can fix your computer but you’re going to lose all of your emails, your data and we’re going to have to reprogram everything.” (Id. at p. 89). With Seidel’s consent, T-R Associates performed that service, as a result of which Seidel’s emails are reportedly “gone forever” and “it’s impossible” to retrieve them. (Id.).
Seidel confirmed that he provided his report and supporting materials to the “FBI only,” but stated that he has not furnished the FBI with the names of the interviewees, nor has the FBI requested their names. (Id. at pp. 71-72, 105). Seidel contacted the FBI prior to the evidentiary hearing on October 16, 2014, to discuss the instant right-to-know dispute, and was advised by the FBI that it has no objection to the release of Seidel’s unredacted work papers currently being requested by The Scranton Times. (Id. at pp. 47-48, 75). Finally, Seidel attested that he merely conducted a “one-time inquiry” for the Commission and has not performed any additional investigations on its behalf. (Id. at p. 106).
Volpe and Giannetta testified that neither they nor any other Commission members are aware of the identities
In response to Seidel’s contention that the emails which he received from certain stakeholders “were obliterated” by T-R Associates and “can’t be retrieved,” the undersigned stated that “the email, even if deleted, can be retrieved” since its still “exist[s] in some type of an electronic format that could then be printed.” {Id. at pp. 65-66). Counsel for Lackawanna County also asserted that although Seidel’s “hard drive might be obliterated” on his computer, the emails remain electronically stored on and retrievable from his “Frontier [email] server.” {Id. at pp. 65-66, 174-175). Seidel’s counsel replied that there was no evidence in the record supporting the conclusion that Seidel’s deleted emails can be retrieved, and he alleged that Lackawanna County’s counsel was “just making it up as he goes.” {Id. at pp. 175-176). Since the parties’ conflicting digital arguments do not involve a matter which may be judicially noticed under Pa.R.E. 201, Leonard Deutchman, Esquire, of LDiscovery was retained as a technical advisor to the court on October 29, 2014, in order to furnish an expert opinion on the issue of whether Seidel’s deleted emails can be retrieved from Frontier’s email server. (Docket entry no. 42).
Mr. Deutchman opined that, in the alternative, the emails in question may be retrieved from Seidel’s hard drive. If Seidel’s computer experienced a “logical” failure, T-R Associates would have repaired the computer by “install [ing] a new operating system and all applications,” in which event the “emails on the hard drive could still be recoverable.” (Id. at p. 3). Conversely, if Seidel’s computer experienced a “physical” failure, T-R Associates would have “completely replaced the hard drive,” and “recovery of the email from a brand new hard drive would be impossible since none of the email was copied to it.” (Id.). Nevertheless, if the hard drive was replaced due to a physical error, “and if the old drive is still accessible, it can be sent to a drive recovery specialist who can attempt to recover all of the [electronically stored information] ESI on the drive.” (Id.).
In short, Mr. Deutchman concluded that the emails in dispute could be secured from Frontier Internet Service or Seidel’s hard drive. (Id. at pp. 2-3). On October 31,
II. DISCUSSION
(A) STANDARD AND SCOPE OF REVIEW
‘’’Standard of review’ and ‘scope of review,’ although distinct, are not concepts that are considered in isolation from one another.” Bowling v. Office of Open Records, 621 Pa. 133, 170, 75 A.3d 453, 475 (2013). “Scope of review” refers to the confines within which a reviewing court must conduct its examination, “or to the matters (or ‘what’) the [reviewing] court is permitted to examine.” Samuel-Bassett v. Kia Motors America, Inc., 613 Pa. 371, 407, 34 A.3d 1, 21 (2011), cert. denied, 133 S. Ct. 51 (U.S. 2012). “Standard of review” concerns the manner in which (or “how”) that examination is to be conducted. Holt v. 2011 Legislative Reapportionment Commission, 614 Pa. 364, 392, 38 A.3d 711, 728 (2012); Mid Valley School District v. Warshawer, 2013 WL 5234308, at *4 (Lacka. Co. 2013).
As for the scope of review, Section 1303(b) of the RTKL provides that the record on appeal before a common pleas court “shall consist of the request, the agency’s response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.” 65 P.S. § 67.1303(b). However, Section 1303(b) does not restrict the scope of the record on appeal, and instead simply describes the record to be certified by the OORto the reviewing court. As a consequence, the “scope of review” is plenary and permits trial courts “to expand their record to fulfill their statutory role” as fact-finders and thereby consider matters beyond the record that is certified by the OOR. Bowling, 621 Pa. at 173, 75 A.3d at 476. Accordingly, the “standard of review is de novo and [the] scope of review is broad or plenary when [a court] hears appeals from determinations made by appeals officers under the RTKL.” Id. at 173, 75 A.3d at 477.
(B) APPLICABLE BURDEN OF PROOF
Pursuant to Section 708(a)(1) of the RTKL, 65 P.S. § 67.708(a)(1), the agency bears the burden of proving, by a preponderance of the evidence, that a record is exempt
(C) NONCRIMINAL INVESTIGATION EXEMPTION
The RTKL requires an agency to provide any citizen access to any “public record,” which is defined as any “record” that is not (a) exempt from disclosure under 65 P.S. §67.708 or any other federal or state law or regulation or judicial order of decree, or (b) protected by some privilege. 65 P.S. § 67.102. The term “record” includes any “document, paper,...tape,...or..., information stored or maintained electronically and a data-processed or image-processed document.” Id. The Commission and Seidel contend that the material sought by The Scranton Times and Lackawanna County is exempt from disclosure by Section 708(b)(17) of the RTKL which states, in pertinent part, that the RTKL does not require production of:
(17) A record of an agency relating to a noncriminal investigation, including:
*436 * * *
(ii) Investigative materials, notes, correspondence and reports.
(iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169) known as the Whistleblower Law.
* * *
(v) Work papers underlying an audit.
65 P.S. § 67.708(b)(17)(ii) — (iii), (v).
As noted above, “[t]he agency bears the burden of proving that a record is exempt from public access.” McGill, 83 A.3d at 479 (citing 65 P.S. § 67.708(a)(1)). The Commission and Seidel must establish the applicability of the “noncriminal investigation” exemption by “a preponderance of the evidence,” which “is such proof as leads the fact-finder to find that the existence of a contested fact is more probable than its nonexistence.” Pennsylvania State Troopers Association v. Scolforo, 18 A.3d 435, 439 (Pa. Cmwlth. 2011); Kelly, supra, at *8. It is axiomatic that “[ejxemptions from disclosure must be narrowly construed due to the RTKL’s remedial nature....” Clinkscale v. Department of Public Welfare, 2014 WL 4960137, at *2 (Pa. Cmwlth. 2014); Warshawer, supra, at *7.
To qualify for any one of the three claimed exemptions, the Commission and Seidel must first demonstrate that the records sought relate to a “noncriminal investigation.” The RTKL does not define the terms “noncriminal” and “investigation.” Pennsylvania Public Utility Commission v. Gilbert, 40 A.3d 755, 759 (Pa. Cmwlth. 2012). In
To be eligible for the “noncriminal investigation” exemption under Section 708(b)(17), the agency must, as a threshold matter, possess the authority to conduct the investigation at issue. Compare Chawaga, 91 A.3d at 259 (noncriminal investigation exemption did not preclude disclosure of DPW performance audit report since “DPW’s performance audit was not part of the DPW’s legislatively granted fact-finding or investigative powers.”) and Coulter v. Department of Public Welfare, 65 A.3d 1085, 1089-1090 (Pa. Cmwlth. 2013) (records pertaining to DPW’s official probe of county Children & Youth Services (CYS) fell within noncriminal investigation exemption since DPW possessed statutory and regulatory authority to investigate children and youth social service agencies, and its investigation was carried out pursuant “to DPW’s duty to investigate complaints to determine whether an agency is compliant with applicable laws and its power to compel acceptable plans of correction.”). “Agencies are creatures of statute and, thus, only have the authority to
(1) Government Study Commission’s Official Duties Under HRC & OPL
The authority of a government study commission is circumscribed by its enabling legislation, the HRC & OPL. Section 2918 of the HRC & OPL, entitled “Function and duty of commission,” states that a “government study commission shall study the form of government of the municipality to compare it with other available forms under the laws of this Commonwealth and determine whether or not in its judgment the government could be strengthened or made more clearly responsible or accountable to the people or whether its operation could
The Commonwealth Court of Pennsylvania has strictly construed the scope of the authority granted to government study commissions under the HRC & OPL. In Schrier v. Kisselback, 879 A.2d 834 (Pa. Cmwlth. 2005) (en banc), the township government study commission recommended the adoption of an optional plan form of government in which the Council members would be limited to two consecutive terms of office. Id. at 836. After the recommendation was adopted by the electors, the subsequent candidacies of incumbent council members were challenged based upon the recommended implementation of term limits. Relying upon the pronouncement in Kline v. City of Harrisburg, 362 Pa. 438, 68 A.2d 182 (1949) that local governments “are not sovereigns” and can only exercise the powers granted to them, the trial court in Schrier declared the term limitations invalid since the relevant statutes, including the HRC & OPL, “contain no express authorization for term limits, and grant no other express power from which authority could be inferred to establish term limits.” Schrier, 879 A.2d at 837. On appeal, an en banc panel of the Commonwealth Court adopted “the well-reasoned opinion” of the trial court, and agreed “that the [government study] Commission had no statutory authority to recommend the establishment of term limits in the optional plan and, therefore, the voters in the Township could not have adopted such limits.” Id. at 838.
The Commission’s counsel later executed a contract with Seidel to conduct that investigation, pursuant to the Commission’s power to appoint consultants under 53 Pa.C.S. § 2919(b). During the Commission’s 14th public hearing on Januaiy 15, 2014, the scope of Seidel’s investigation was expanded, albeit without any formal vote by the Commission, to probe “contracts that are
Nothing contained in the HRC & OPL vested the Commission, or any consultant retained by the Commission, with the express or implied authority to investigate county contracts and lease agreements, inspect campaign committee reports, or publicly recommend “an independent investigation by an outside law enforcement agency” of unnamed employees of the Wilkes-Barre/ Scranton International Airport based upon statements made
The three emails, which are the subject of this RTKL
When approving Volpe’s petition for the submission of a referendum question for the election of a government study commission on May 21, 2013, we expressly noted that “the government study commission may not exceed its express statutory authority under the HRC & OPL.” In re Referendum Petition for Government Study Commission, supra, at *26. Although the Commission’s retention of Seidel and its investigation of the foregoing items may have been well-intentioned responses to certain complaints that were voiced by county residents at public hearings, and arguably were prompted by the Commission’s inability to seasonably obtain requested documents from the county, the fact remains that Seidel’s investigation was not “part of the agency’s official duties” as required by Department of Health. For that reason, Seidel’s investigative materials are not shielded from public assess based upon the “noncriminal investigation” exemption under Section 708(b)(17) of the RTKL.
(2) One-Time Inquiry
Assuming arguendo that Seidel’s investigation or performance audit was part of the Commission’s “official duties” under the HRC & OPL, Seidel’s materials still would not be insulated from public access by the “noncriminal investigation” exemption. In addition to being within the agency’s legislatively granted fact-finding and investigative powers, the review must also constitute a “systematic or searching inquiry” or “detailed examination,” rather than “a one-time inquiry,” to qualify for protection under Section 708(b)(17) of the RTKL. Chawaga, 91 A.3d at 259 (holding that “DPW’s performance audit report was not part of a ‘systematic or searching inquiry ’ or a ‘ detailed examination’ ” since “DP W conducted a one-time inquiry into NCCF’s finances by interviewing management; reviewing the general ledger, payroll records, invoices, and client case files; inventorying the manufacturing equipment; and examining various other supporting documents.”). Seidel admitted under oath that he merely conducted a “one-time inquiry” for the Commission, as opposed to a recurring or systematic probe. (T. P. 10/16/14 at p. 106). Therefore, based upon Chawaga, and Seidel’s own testimony, Seidel’s materials
(D) PRODUCTION OF ELECTRONICALLY STORED RECORD
Under Section 2921(d) of the HRC & OPL, 53 Pa.C.S. § 2921(d), the Commission’s records were to be provided to the county “and made available for public inspection” upon the discharge of the Commission. See McCord v. Pennsylvanians for Union Reform, 2014 WL 4724425, at *5 (Pa. Cmwlth. 2014) (“Nothing in the RTKL shall supersede or modify the public or nonpublic nature of a record or document established in...state law.”) (quoting 65 P.S. § 67.306). Based upon the foregoing discussion in Section 11(C) above, the unredacted versions of the three emails included in Seidel’s investigative records are not exempt from disclosure under the RTKL.
Section 102 of the RTKL defines a “record” as any information “that is created, received or retained” in connection with any activity of an agency, “regardless of physical form or characteristics,” and includes “information stored or maintained electronically.” 65 P.S. § 67.102. Section 704(b) permits an agency to respond to a right-to-know request by agreeing to “provide access to inspect the record electronically,” 65 P.S. § 67.704(b) (1), and if the requester “is unwilling or unable to access
Although Seidel testified that the emails are “gone forever” and “impossible” to retrieve following the service ofhis computer by T. R. Associates, (T. P. 10/16/14 atp.89), we accept as credible and conclusive the expert opinion of Leonard Deutchman, Esquire, that the subject emails may be recovered from Frontier Internet Service’s email server. Thus, Seidel will be ordered to secure unredacted copies of the three emails from his internet service provider and to thereafter provide them to The Scranton Times. If Frontier Internet Service is unable to retrieve 3 of providing Seidel’s computer to a forensic analyst or a drive recovery specialist to retrieve those three emails. An appropriate order follows.
ORDER
And now, this 14th day of November, 2014, upon consideration of the “Amended Petition for Review of Final Determination Issued by the Office of Open Records of the Commonwealth of Pennsylvania” filed by Lackawanna County Government Study Commission, the memoranda of law submitted by the petitioner, respondent
1. The “Amended Petition for Review of Final Determination Issued by the Office of Open Records of the Commonwealth of Pennsylvania” is denied in accordance with the foregoing memorandum;
2. Within the next thirty (30) days, Seidel Investigations and Consulting, Inc., shall obtain from Frontier Internet Service unredacted copies of (a) the email forwarded to James F. Seidel on February 4, 2014, with the subject header “16 Link,” (b) the email transmitted to James F. Seidel on February 5, 2014, bearing the subject line “Corey O’Brien,” and (c) the email delivered to James F. Seidel on April 25, 2014, with the subject header “Fix Lackawanna;”
3. In the event that Frontier Internet Service is unable to retrieve those three emails from its email server and to provide them to Seidel Investigations and Consulting, Inc., for production to The Scranton Times, L.P. d/b/a The Times-Tribune, consideration will be given to the court-ordered delivery of the computer of James F. Seidel and Seidel Investigations and Consulting, Inc., to a forensic analyst or a drive recovery specialist to retrieve the subject emails for production in an unredacted format; and
4. To the extent that the final determination of the Office of Open Records dated July 10, 2014, required the production of unredacted copies of the foregoing emails, it is affirmed.
. Section 2919 of the HRC & OPL states that “[wjithin the limits of the appropriations and other public and privately contributed funds and services made available to it, the commission may appoint one or more consultants...to serve at the pleasure of the commission and may fix reasonable compensation therefor to be paid the consultants....” 53 Pa.C.S. § 2919(b).
. Robert C. Cordaro (“Cordaro”) and A. J. Munchak (“Munchak”) served as the majority County Commissioners for Lackawanna County from January 2004 to January 2008. See U.S. v. Munchak, 527 Fed. Appx. 191, 192 (3d Cir. 2013). In June 2011, a federal jury convicted Cordaro of conspiracy to commit bribery, two counts of bribery, conspiracy to commit extortion under color of official right, two counts of extortion, conspiracy to commit money laundering, three counts of money laundering, racketeering, conspiracy to commit racketeering, conspiracy to defraud the United States, three counts of filing materially false tax returns, and two counts of tax evasion, and on January 30,2012, U. S. District Judge A. Richard Caputo sentenced Cordaro to an eleven
. Seidel testified during the evidentiary hearing on October 16, 2014, that he had redacted the names of the individuals who forwarded two emails to him. (T. P. 10/16/14 at pp. 89-90). However, a review of Seidel’s binder no. 3, which was marked for identification purposes as Seidel Exhibit 2C, reflects that the sender’s names were redacted from three emails. The first email is dated February 4, 2014, with a subject heading “16 Link” and forwards, inter alia, the electronic hyperlink for an interview of Lackawanna County Commissioner Corey O’Brien by WNEP-TV on June 24, 2011. (Seidel Exhibit 2C, Section 18). The second redacted email is dated February 5, 2014, and contains a subject header “Corey O’Brien.” (Id.). The third email is dated April 25, 2014, and bears the subject line “Fix Lackawanna.” (Seidel Exhibit 2C, Section 22).
. Section 2922(a) of the HRC & OPL provides that “[t]he government study commission shall be discharged upon the filing of its report, but if the commission’s recommendations require further procedure in the form of a referendum on the part of the electors, the commission shall not be discharged until the procedure has been finally concluded.” 53 Pa.C.S. 2922(a). Inasmuch as the referendum recommendation by the Commission was submitted to the electorate on May 20, 2014, the Commission was officially discharged upon the conclusion of that primary municipal election.
. Section 708(b) of the RTKL identifies records which “are exempt from access by a requester,” and in subparagraph (17) lists “[a] record of an agency relating to a noncriminal investigation, including...(iii) [a] record that includes the identity of a confidential source, including individuals subject to the act of December 12,1986 (RL. 1559, No. 169), known as the Whistleblower Law,” and “[w]ork papers underlying an audit.” 65 P.S. § 67.708(b)(17)(iii), (v).
. Under the RTKL, a requester may appeal a local agency’s denial of a records request to the Office of Open Records, which must designate an appeals officer to receive evidence submitted by the requester and the local agency and thereafter issue “a final determination” within thirty days of receipt of the appeal. See 65 RS. §§67.503(a)(2), 1101-1102.
. Based upon Seidel’s testimony that his destroyed handwritten notes reflected the identities of the “stakeholders” that he interviewed, and his acknowledgement that he recalls their identities by memory, The Scranton Times argued that Seidel should be directed to recreate the list of those names which he destroyed. (Id. at pp. 159-163). The Commission and Seidel responded that The Scranton Times’ requested remedy violates Section 705 of the RTKL, which states that “[w]hen responding to a request for access, an agency shall not be required to create record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.” 65 RS. § 67.705. The parties were directed to submit supplemental briefs on that narrow issue, (T. P. 10/16/14 at pp. 163-164), but by letter dated October
. In addition to a home rule charter government, the other optional forms of government authorized by the HRC & OPL include the Executive (Mayor)-Council Plan A, 53 Pa.C.S. §§ 3001-3018, Executive (Mayor) — Council Plan B, 53 Pa.C.S. §§ 3031-3033, Executive (Mayor)-Council Plan C, 53 Pa. C.S. §§ 3041-3043, Council-Manager Plan, 53 Pa.C.S. § 3051-3064, Small Municipality Plan, 53 Pa.C.S. §§ 3071-3080, and Optional County Plan, 53 Pa.C.S. §§ 3091-3095.
. In its last official action on May 20, 2014, the Commission formally adopted a resolution directing Seidel to furnish his “full and complete findings to law enforcement,” and after “he redacted] the stakeholders’ references,” to provide his report to The Scranton Times and the public. (Docket entry no. 36 at pp. 26-27). The Commission stated that the stakeholders’ identities were being withheld in order to afford law enforcement the opportunity to investigate the allegations, and to prevent the Commission members from being chargeable with hindering apprehension or prosecution and obstruction of justice in the interim. (Id. at pp. 16-17, 20-21, 26- 27). Seidel confirmed during his testimony that he provided his “full and complete findings” to the FBI only, (T P. 10/16/14 at pp. 71-72), and that the FBI has no objection to the disclosure of the unredacted materials currently being sought by The Scranton Times. (Id. at pp. 47-48,75). The U. S. Attorney for the Middle District of Pennsylvania has similarly confirmed that he has “no interest concerning the discoverability” of the information which The Scranton Times seeks to discover in this RTKL appeal. (Docket entry no. 39).
. With regard to the Commission’s and Seidel’s “noncriminal investigation” exemption argument predicated upon protection for “[w]ork papers underlying an audit,” 65 P.S. § 67.708(b)(17)(v), it is noteworthy that the Statements on Auditing Standards (SAS) issued by the American Institute of Certified Public Accountants (AICPA) and Black’s Law Dictionary define “work papers” as the records retained by independent auditors or accountants of “the procedures applied, the tests performed, the information obtained, and the conclusions reached” in a formal audit. Kelly, supra, at *6. The record is devoid of any suggestion that Seidel is certified as an independent auditor or accountant.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.