FINAL DETERMINATION

IN THE MATTER OF :
:
NICOLE BRAMBILA AND THE :
READING EAGLE, :
Requester :
:
v. : Docket No.: AP 2017-0337
:
PENNSYLVANIA DEPARMENT OF :
AGING, :
Respondent :

INTRODUCTION

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

(Request) to the Pennsylvania Department of Aging (Department) pursuant to the Right-to-

Know Law (RTKL), 65 P.S. 67.101 et seq., seeking records regarding reports of abuse.

The Department granted the Request, and the Requester appealed to the Office of Open Records

(OOR). For the reasons set forth in this Final Determination, the appeal is granted in part

and denied in part, and the Department is required to take further action as directed.

FACTUAL BACKGROUND

On January 3, 2017, the Request was filed, seeking to inspect or obtain copies of:

[A]ggregated data that shows the number and type of abuse reports for the
years in which the agency is required to keep. Please also provide,
likewise in aggregated data, the following information:

1
 [1] The facility type as defined by OAPSA [Older Adults Protective
Services Act] and listed on your agencys website.... These facilities
include:

[a] Adult daily living centers

[b] Personal care homes
[c] Assisted living residences
[d] Birth centers
[e] Community homes for individuals with mental retardation
[f] Community residential rehabilitation services
[g] Department of public welfare nursing facilities
[h] DPW-licensed and DPW operated nursing facilities for adults
[i] Domiciliary care homes
[j] Family living homes
[k] Home care registry
[l] Home health care organization or agency
[m] Hospices
[n] Intermediate care facilities for the mentally retarded (private
and state)
[o] Long term care nursing facilities
[p] Long term structured residences
[q] Personal care homes
[r] State mental hospitals

[2] Reporting party (whether an individual or facility and type).

[3] County in which the facility is located.

[4] Nature of the abuse (whether sexual, physical injury, serious bodily
injury, suspicious death, emotional, financial or caretaker neglect
and/or self-neglect).

[5] Agencies notified and/or involved (whether protective services,

departments of Aging, Health and/or state and local law enforcement
or the Office of Attorney General[)].

[6] Conclusions (whether the [D]epartment substantiated or

unsubstantiated the allegations in the abuse report).

On the same day, the Department invoked a thirty-day extension to respond. See 65 P.S.

67.902. On February 3, 2017, the Department noted that it would be granting the Request. On

February 7, 2017, the Department provided the following records:

The Benchmark Report of Abuse for fiscal years 2014-2015 and 2015-2016;

2
 Annual Reports for 2013-2014, 2014-2015 and 2015-2016; and

Older Adults Protective Services Act statistics regarding investigations from the first
quarter of fiscal year 2014-2015 through the fourth quarter of fiscal year 2015-2016.1

On February 17, 2017, the Requester filed an appeal with the OOR, arguing that the

Request had only been partially fulfilled, and the Department had not provided much of the

aggregated data that had been requested. Specifically, she notes that the Request seeks reporting

parties and agencies notified, as well as the reported abuses and information on the nature of the

abuse, broken down by county and facility type. 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. 65 P.S. 67.1101(c).

On March 3, 2017, the Department submitted a notarized position statement made under

penalty of perjury by James Burd, the Departments Open Records Officer, who attests that the

Department is not in possession of reports that present the data requested. On March 9, 2017, the

Requester submitted a string of e-mails between herself and the Departments spokesperson,

Drew Wilburne, who indicated on February 17, 2017 that the Department would be sending the

Requester the requested data.2

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.

1
The Requester also acknowledges receiving an Annual Report covering 2012-2013. The Annual Reports provide
statistics regarding the types of reported abuse from fiscal years 2011 through 2016, as well as the number of reports
of abuse and substantiated claims, broken down by county and dating back to 2011.
2
In an e-mail dated November 30, 2016 that was included in that communication, Mr. Wilburne stated that the
database has been in place for the past five years. On March 22, 2017, in response to an inquiry by the OOR as to
why records dating back to the inception of the database had not been provided, Mr. Burd explained in an unsworn
statement that, while the database does contain information from the past five years, only data from up to the past
three years is put into routine reports. Mr. Burd further explained that the Benchmark Reports had been provided to
the Requester to show the kind of information that is routinely generated, and that reports responsive to the Request
are not generated and do not exist. On March 24, 2017, in response to a further inquiry by the OOR, the Department
submitted a notarized position statement made under penalty of perjury by Mr. Burd, verifying the foregoing.

3
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. 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. 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, neither party requested a hearing; however, the OOR has the necessary 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. 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. 65 P.S. 67.708(b).

4
 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

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)). Likewise, [t]he burden of proving a record does not exist ... is

placed on the agency responding to the right-to-know request. Hodges v. Pa. Dept of Health,

29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011).

1. The Department has provided records responsive to Items 4 and 6 as well as to

part of Item 3

As the Annual Reports provided by the Department provide the number of abuse reports

broken down by county, the percentage of each type of abuse and whether or not the Department

substantiated the claim, the appeal is denied as to Items 4 and 6 of the Request. However, the

Department does not provide the types of abuse broken down by county.

2. The Department has not proven that it does not have records responsive to Items
1, 2, 3 and 5

Aside from the reports already provided to the Requester, the Department argues that it

does not have responsive reports, and that it would be required to create a record to respond to

the Request. Specifically, Mr. Burd attests as follows:

8. My thorough review of the records[] has revealed that [the Department] does
not possess or have custody or control over reports that would present the data
requested.

5
 9. The requested data, organized by facility type and other factors identified in the
[R]equest, is not merely aggregated data because the [R]equest seeks to compel
[the Department] to identify the relationship between the facility types and other
data points set forth in the request.

10. Aggregated data includes simply the entirety of data elements for
Reporting party (whether individual or facility and type); County in which the
facility is located; Nature of the abuse (whether sexual, physical injury, serious
bodily injury, suspicious death, emotional, financial or caretaker neglect and/or
self-neglect); Agencies notified and/or involved (whether protective services,
departments of Aging, Health and/or state and local law enforcement or the Office
of Attorney General; and Conclusions (whether the department substantiated or
unsubstantiated the allegations in the abuse report).

11. Aggregated data does not include a report identifying the relationship
between these elements, as [r]equested herein.3

12. [The Department] does not maintain, format, compile or organize its data
according to each facility[] type that reports each instance of abuse, the
conclusions associated with each instance at each type facility, the agencies
involved in each instance or relevant county.4

13. In order to respond to the [R]equest, [the Department] would be required to

recompile, prepare or provide data in special formats to create reports that would
meet the specifications of the [R]equest.

14. [The Department] does not currently maintain or have the existing ability to
create records that are responsive to the [R]equest.

15. Specifically, in order to recompile or format [the data] into the type of report
that Requestor seeks, [the Department] would be required to create, test, and
validate new computer programs, which would require at least an estimated one
week plus of Analyst time.

Section 705 of the RTKL states that agencies are not be required to create a 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 P.S. 67.705.

Under the RTKL, an affidavit may serve as sufficient evidentiary support. See Sherry v. Radnor

3
Aggregated data is defined under the RTKL as [a] tabulation of data which relate to broad classes, groups or
categories so that it is not possible to distinguish the properties of individuals within those classes, groups or
categories. 65 P.S. 67.102.
4
However, the Annual Reports provide the number of abuses reported and substantiated, broken down by county.

6
Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records,

992 A.2d 907, 909 (Pa. Commw. Ct. 2010). In the absence of any evidence that the Department

has acted in bad faith or that the records do, in fact, exist, the averments in [the statement]

should be accepted as true. McGowan v. Pa. Dept of Envtl. Prot, 103 A.3d 374, 382-83 (Pa.

Commw. Ct. 2014) (citing Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw.

Ct. 2013)). Accordingly, the Department has met its burden of proving that it does not have

reports connecting the facility type with the type or frequency of abuse or the conclusions

associated with each report. The Department has also established that it does not organize its

data by the reporting party or the agencies involved and has further established that it does not

have the existing ability to generate responsive reports.

This does not end the analysis, however. Section 102 of the RTKL defines a record as

[i]nformation, regardless of physical form or characteristics, that documents a transaction or

activity of an agency and that is created, received or retained pursuant to law or in connection

with a transaction, business or activity of the agency. 65 P.S. 67.102. The Commonwealth

Court has noted that the RTKL:

permits a [requester] to request and obtain public records, subject to claims of

exemption. A [requester] cannot control how an agency catalogues or organizes
such files. As such, an agencys failure to maintain the files in a way necessary to
meet its obligations under the RTKL should not be held against the requestor. To
so hold would permit an agency to avoid its obligations under the RTKL simply
by failing to orderly maintain its records.

Pa. Dept of Envtl. Prot. v. Legere, 50 A.3d 260, 265 (Pa. Commw. Ct. 2012). Information

contained in an agencys database is considered a record under the RTKL and is subject to

disclosure. Providing information from an agency database does not constitute the creation of a

record. See Commonwealth v. Cole, 52 A.3d 541, 549 (Pa. Commw. Ct. 2012) (holding that

drawing information from a database does not constitute creating a record under the Right-to-

7
Know Law); see also Gingrich v. Pa. Game Commn, No. 1254 C.D. 2011, 2012 Pa. Commw.

Unpub. LEXIS 38, *21 (Pa. Commw. Ct. 2012) ([P]ulling information from a database is not

the creation of a record). To hold otherwise would encourage an agency to avoid disclosing

public records by putting information into electronic databases. Cole, 52 A.3d at 549. An

agency need only provide the information in the manner in which it currently exists. Id. at 547.

An agency is not required to create a list or spreadsheet containing the requested information;

however, the information must simply be provided to requesters in the same format that it

would be available to agency personnel. Id. at 549 n.12.

Here, the structure of the Request is significant. The opening paragraph, seeking

aggregated data that shows the number and type of abuse reports [and], likewise in

aggregated data, the following information: frames the entire Request. The Department is

correct that [a]ggregated data does not include a report identifying the relationship between

[all of] these elements. Aggregated data, by definition, relate to broad classes and does not

allow the properties of individuals to be identified within those classes. However, the

Department has interpreted the Request too narrowly. In this case, providing responsive records

does not require connecting all of the various data requested which could allow for the

identification of individual facilities. Rather, to the extent that the Department has records

containing aggregated data that, for example, show the number and type of abuse reports broken

down by reporting party (Item 2 of the Request), that data must be provided.

Mr. Burd attests that the Department does not maintain, format, compile or organize its

data according to facility type, conclusions or agencies involved; however, the Department does

not refute that it has at least some relevant data.5 Thus, while the Department is not required to

5
In an e-mail dated February 13, 2017, and submitted by the Requester, Mr. Wilburne acknowledges that the data
[the Requester] is seeking is captured in two separate systems.

8
create any reports connecting the data points enumerated in Items 1-6 of the Request, it must

provide any aggregated data it may have that is responsive to Items 1, 2, 3 and 5 of the Request,

in whatever form available.

CONCLUSION

For the foregoing reasons, the appeal is granted in part and denied in part, and the

Department must provide all responsive records, as described above, to the Requester 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 or petition for review 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 according to

court rules 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. 6

This Final Determination shall be placed on the website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: March 27, 2017

/s/ Blake Eilers

Blake Eilers, Esq.
Appeals Officer

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

James Burd (via e-mail only);
Drew Wilburne (via e-mail only)
Deborah Hargett-Robinson, Esq. (via e-mail only)

6
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).