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FINAL DETERMINATION

IN THE MATTER OF :
:
NICOLE BRAMBILA AND READING :
EAGLE, :
Requester :
:
v. : Docket No: AP 2017-0374
:
PENNSYLVANIA DEPARTMENT OF :
TRANSPORTATION, :
Respondent :

INTRODUCTION

Nicole Brambila (Requester), a reporter with the Reading Eagle, submitted a request

(Request) to the Pennsylvania Department of Transportation (Department) pursuant to the

Right-to-Know Law (RTKL), 65 P.S. 67.101 et seq., seeking a 2008 feasibility study

related to REAL ID in Pennsylvania. The Department partially denied the Request, stating that

the study reflects the Departments internal, predecisional deliberations. 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 Department is required to further action as directed.

FACTUAL BACKGROUND

On January 10, 2017, the Request was filed seeking copies of the 2008 feasibility study

conducted by [the Department] looking at the impact of implementing REAL ID in

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Pennsylvania. On January 18, 2017,1 the Department invoked a thirty day extension during

which to respond. See 65 P.S. 67.902. On February 15, 2017, the Department directed the

Requester to the General Assemblys website that provides the estimated costs to implement the

REAL ID. The Department denied access to the feasibility study (Study) because it reflects the

internal, predecisional deliberations of the Department. See 65 P.S. 67.708(b)(10)(i)(A).

On February 24, 2017, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure. The OOR invited both parties to supplement the record and

directed the Department to notify any third parties of their ability to participate in this appeal.

See 65 P.S. 67.1101(c).

On March 8, 2017, the Department submitted a position statement reiterating its grounds

for denial. In support of its position, the Department submitted a sworn affidavit from Kurt

Myers, Deputy Secretary for Driver and Vehicle Services with the Department.

On April 3, 2017, the Department submitted the Study and two draft versions of the

Study for in camera review to the OOR.2 The Requester agreed to allow the OOR until May 17,

2017 to issue a Final Determination in this matter. See 65 P.S. 67.1101(b)(1).

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

1
The Departments offices were closed on January 16, 2017 in observance of Martin Luther King, Jr. Day. As such,
the Departments extension notice was timely issued.
2
The privilege log and records submitted for in camera review included two draft versions of the Study; however,
the Requester clarified on April 26, 2017 that she is only seeking the final version of the Study.

2
actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), affd

75 A.3d 453 (Pa. 2013).

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 law also states that an appeals officer may admit into evidence

testimony, evidence and documents that the appeals officer believes to be reasonably probative

and relevant to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-

appealable. Id.; Giurintano v. Pa. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct.

2011). Here, the parties did not request a hearing; however, the OOR has the requisite

information and evidence before it to properly adjudicate the matter.

The Department is a Commonwealth agency subject to the RTKL that is required to

disclose public records. 65 P.S. 67.301. Records in possession of a Commonwealth 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 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

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evidence. 65 P.S. 67.708(a)(1). 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 Pa. Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821,

827 (Pa. Commw. Ct. 2010)).

The Department claims that the Study reflects the Departments internal, predecisional

deliberations. Section 708(b)(10)(i)(A) of the RTKL exempts from public disclosure a record

that reflects:

[t]he 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, ... or course of
action or any research, memos or other documents used in the predecisional
deliberations.

65 P.S. 67.708(b)(10)(i)(A). To withhold a record under Section 708(b)(10)(i)(A), an agency

must show: 1) the deliberations reflected are internal to the agency, including representatives; 2)

the deliberations reflected are predecisional, i.e., before a decision on an action; and 3) the

contents are deliberative in character, i.e., pertaining to a proposed action. See Kaplin v. Lower

Merion Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011). To establish that records are

deliberative, an agency must show that the information relates to the deliberation of a particular

decision. McGowan v. Pa. Dep't of Envtl. Prot., 103 A.3d 374, 378-88 (Pa. Commw. Ct. 2014).

The term deliberation is generally defined as [t]he act of carefully considering issues and

options before making a decision or taking some action BLACKS LAW DICTIONARY 492 (9th

ed. 2009); see also Heintzelman v. Pa. Dep't of Cmty. & Econ. Dev., OOR Dkt. AP 2014-0061,

2014 PA O.O.R.D. LEXIS 254, aff'd No. 512 C.D. 2014, 2014 Pa. Commw. Unpub. LEXIS 644

(Pa. Commw. Ct. 2014).

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Mr. Myers attests that the Study was created by Department employees and distributed

among Department personnel during the drafting stage and later with personnel of the

Governors Office. The Requester argues that the Study was shared with the Legislature when

voting for the related Senate Bill No. 354, and, therefore, cannot be internal to the Department.

Notwithstanding the Requesters argument, a document remains internal even if it is shared

with another agency. 65 P.S. 67.708(b)(10)(i)(A). The RTKL defines agency as [a]

Commonwealth agency, local agency, judicial agency or legislative agency. 65 P.S. 67.102.

Here, the Study is internal under Section 708(b)(10)(i)(A) because it was shared between

employees of entities that are defined as agencies under the RTKL. Kaplin, 19 A.3d 1209;

Vitali v. Pa. Office of the Governor, OOR Dkt. AP 2014-0903, 2014 PA O.O.R.D LEXIS 1112 .

To establish that records are deliberative, an agency must show that the information

relates to the deliberation of a particular decision. McGowan, 103 A.3d at 378-88. The term

deliberation is generally defined as [t]he act of carefully considering issues and options

before making a decision or taking some action.... BLACKS LAW DICTIONARY 492 (9th ed.

2009); see also Heintzelman, OOR Dkt. AP 2014-0061, 2014 PA O.O.R.D. LEXIS 254. In order

for a record to be deliberative in character, it must make recommendations or express opinions

on legal or policy matters and not be purely factual in nature. Furthermore, an agency must

submit evidence of specific facts showing how the information relates to a deliberation of a

particular decision. Carey v. Pa. Dept of Corr., 61 A.3d 367, 379 (Pa. Commw. Ct. 2013). In

McGowan, the Pennsylvania Department of Environmental Protection (DEP) submitted

affidavits detailing the withheld information related to the DEPs internal deliberations,

including draft documents to contemplate a future course of agency action. 103 A.3d 374.

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Here, Mr. Myers attests that the Study was prepared prior to a decision during the

deliberative process. He attests that the Study examines multiple options and contemplates the

best course of action regarding the impact of adopting the federal REAL ID regulations. The

Study was used to weigh options and what course of action to take regarding the federal REAL

ID regulations. While the Study may have been used to consider options regarding the

implementation of REAL ID, the OOR has conducted an in camera review of the Study, and

those deliberations are not contained within the Study. Rather, the Study contains the underlying

factual bases for the deliberations, but not the deliberations themselves. Therefore, the

information contained in the Study is not deliberative in character. Further, there are no opinions

or recommendations contained within the Study, rather it is factual data related to the available

options to pursue. Based on the evidence provided and the OORs in camera review, the

Department has not met its burden of proving that the Study is exempt from disclosure. See 65

P.S. 67.708(a)(1).

CONCLUSION

For the foregoing reasons, Requesters appeal is granted, and the Department is required

to provide a copy of the Study within thirty days. This Final Determination is binding on all

parties. Within thirty days of the mailing date of this Final Determination, any party may appeal

to the Commonwealth Court. 65 P.S. 67.1301(a). All parties must be served with notice of the

appeal. The OOR also shall be served notice and have an opportunity to respond as per Section

1303 of the RTKL. However, as the quasi-judicial tribunal adjudicating this matter, the OOR is

not a proper party to any appeal and should not be named as a party.3 This Final Determination

shall be placed on the OOR website at: http://openrecords.pa.gov.

3
See Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

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FINAL DETERMINATION ISSUED AND MAILED: May 15, 2017

/s/ Jill S. Wolfe


_________________________
APPEALS OFFICER
JILL S. WOLFE, ESQ.

Sent to: Nicole Brambila (via e-mail only);


Jeffrey Spotts, Esq. (via e-mail only);
Ellen Sheffey (via e-mail only)