FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No: AP 2019-1434
:
COLONIAL INTERMEDIATE UNIT 20, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to Colonial Intermediate

Unit 20 (“Unit”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking,

among other items, all solicitor invoices for the 2018-2019 school year. The Unit granted the

Request but argued that the Requester owed fees from prior requests. 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 Unit is to take additional action as directed.

FACTUAL BACKGROUND

On July 17, 2019, the Request was filed, seeking, in relevant part “[a]ll Solicitor invoices

for 2018-2019 school year.” On August 23, 2019, following a thirty-day extension to respond, 65

P.S. § 67.902(b), the Unit granted the Request, but refused to provide the records until the

Requester prepaid the fees associated with this Request in addition to fees for the production of

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records in response to a previous request. See 65 P.S. § 67.1307(h); 65 P.S. §67.901. The Unit

specifically identified a $1.00 invoice sent on May 15, 2019 and an $86.00 invoice sent on June

15, 2019.

On August 26, 2019, the Requester appealed to the OOR, challenging $86.00 of the fees,

as well as the prepayment demand, and stating grounds for disclosure. The OOR invited both

parties to supplement the record and directed the Unit to notify any third parties of their ability to

participate in this appeal. 65 P.S. § 67.1101(c).

On September 6, 2019, the Unit submitted a position statement reiterating its grounds for

refusing to provide the requested records until the fees are paid. The Unit claims that it is entitled

to withhold access to the requested records until the Requester has paid all applicable fees. In

support of its position, the Unit submitted the affidavit of Dr. Frank DeFelice, the Open Records

Officer for the Unit, as well as a copy of the invoices sent for the prior requests and a copy of the

correspondence from the Unit to the OOR and the Requester that the Unit would be providing the

records.

On September 9, 2019, the Requester provided a copy of an invoice noting that $1.00 was

enclosed. The Unit requested that this submission be disregarded as it was beyond the deadline

for submissions and argues that it was not provided with the necessary affidavit and has no bearing

on the issues raised in the appeal.

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,

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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), aff’d 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. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, parties

did not request a hearing; however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Unit is a local agency subject to the RTKL that is required to disclose public records.

65 P.S. § 67.302. Records in possession of a local 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

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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 Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)).

The Unit argues that it is entitled to deny access to the records requested because the

Requester owes fees from a prior request. The Requester argues that she paid the $1.00 fee from

May 2019 and is entitled to a waiver of the $86.00 fee, as it was assessed for records which the

Unit originally denied her. In her appeal submission, she identified OOR Dkt. AP 2019-0839 as

the appeal where the Unit denied her records but then assessed a fee. She argues that the OOR

requested the records and they were presented upon request.1 More relevantly, she also argues the

Unit never charged her a fee until the present Request.

While a requester may not normally challenge fees owed stemming from a prior request,

here, the fees charged in a prior request are being utilized to withhold access to records in the

present Request. See Mezzacappa v. Borough of West Easton, OOR Dkt. AP 2011-0833, 2011 PA

O.O.R.D. LEXIS 553 (holding that a requester was collaterally estopped from challenging fees

owed for a prior RTKL request). Therefore, the validity of those fees is at issue.

The Unit argues that the Requester must pay the outstanding balance for records that were

prepared in response to the prior request and appeal. An agency may deny access to public records

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The Requester cites to Borough of W. Easton v. Mezzacappa, No. 1527 C.D. 2012, 2013 Pa. Commw. Unpub. LEXIS
449 (Pa. Commw. Ct. 2013) in support of her argument that an agency may not impose fees for records that were
previously denied. However, in that case, the records were denied and never provided to the requester. Here, the
requested records in the prior request were provided on appeal and the appeal was then withdrawn. See Mezzacappa
v. Colonial Intermediate Unit 20, OOR Dkt. AP 2019-0839, 2019 PA O.O.R.D. LEXIS 595.

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where a requester has an outstanding balance due from previous RTKL requests. Compare 65 P.S.

§ 67.901 (stating that “[a]ll applicable fees shall be paid in order to receive access to the record

requested”); Pa. Dep’t. of Transp. v. Drack, 42 A.3d 355, 363 (Pa. Commw. 2012); Brown v. Pa.

Dep’t of Corr., A.3d 1118 (Pa. Commw. 2017) with Lynch v. Indiana Township, OOR Dkt. AP

2018-0876, 2018 PA O.O.R.D. LEXIS 852 (holding that an agency may not seek past due fees

when the underlying copies were made without the requester’s knowledge); Carr v. Penn Hills

Township, OOR Dkt. AP 2018-1399, 2018 PA O.O.R.D. LEXIS 1280.

The Unit provided redacted records in response to the prior request on June 13, 2019;

however, the Unit did not provide an invoice until June 15, 2019. Section 901 of the RTKL

provides that “[a]ll applicable fees shall be paid in order to receive access to the records requested,”

65 P.S. § 67.901; therefore, an agency is not required to provide the records without receiving the

fees. However, the OOR favors a contemporaneous exchange of records for fees. See Frame v.

Menallen Twp., OOR Dkt. AP 2009-1072, 2010 PA O.O.R.D. LEXIS 155.

In Burda v. Montgomery County, OOR Dkt. AP 2019-0456, 2019 PA. O.O.R.D. LEXIS

____, the OOR held that the County could withhold access to records until the requester paid an

outstanding balance. In that case, the requester had filed a prior request and upon the issuance of

an OOR Final Determination, the County informed the requester that copies were made and that

copying fees were owed. The requester responded indicating he would be mailing a check, but

never mailed a check. The OOR held that the outstanding balance there was appropriate.

Here, however, the Unit made copies to redact information under the RTKL and chose to

provide those records to the Requester but did not provide an invoice contemporaneously with the

records or notify the Requester that copies needed to be made and fees would be imposed. The

Unit had the right under the RTKL to require a contemporaneous exchange of records for fees.

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That is, the Unit should have informed the Requester that the redacted copies were available to her

upon receipt of payment, such that the Requester had an opportunity to challenge the $86 fee if

she chose in the prior appeal.2 Since the Unit chose to provide the records without any indication

that copying would be necessary, the fee is not valid under the RTKL. Because that fee is not

valid, the Unit may not invoke Section 901 of the RTKL in the instant Request.

The Unit also demanded prepayment of copying fees for the instant Request. The OOR

has jurisdiction over an appeal of a request for prepayment. See Prison Legal News v. Office of

Open Records, 992 A.2d 942, 946 (Pa. Commw. Ct. 2010). Section 1307(h) of the RTKL states

that “[p]rior to granting access in accordance with this act, an agency may require a requester to

prepay an estimate of the fees authorized under this section if the fees required to fulfill the request

are expected to exceed $100.00.” 65 P.S. § 67.1307(h). In Pa. Dep’t of Educ. v. Bagwell, the

Commonwealth Court noted that “[a]n agency may only pass on the cost of duplication that

corresponds to those pages to which an agency is granting access.” 131 A.3d 638, 654 (Pa.

Commw. Ct. 2016).

Here, the Unit’s prepayment demand was nominally based upon the duplication costs of

the records to be provided. Section 1307 of the RTKL provides that the OOR has the authority to

establish duplication fees for local agencies. 65 P.S. § 67.1307(b)(1)(i). Pursuant to this authority,

the OOR has approved fees of up to $0.25 per page for the duplication of records as set forth in

the OOR’s Fee Schedule. This fee schedule does not permit an agency to impose any additional

fee for the time and labor spent making redactions; however, it does permit an agency to charge

copying fees for any printing necessary to securely redact records, even when inspection is sought.

2
This presumes that if the cost of copying is less than $100.00 the agency will make the necessary copies and then
inform the Requester of the cost, whereas Section 1307(h) permits an agency to refrain from making copies until
receipt of the payment.

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See, e.g., DeBartola v. Cambria County District Attorney’s Office, OOR Dkt. AP 2017-0050, 2017

PA O.O.R.D. LEXIS 1019.

In its final response, the Unit did not provide the number of pages to be duplicated but

estimated it to be in excess of $100.00 and stated “[t]he expense is due to the cost of redacted

copies @ $.25/each.” The Unit is permitted to demand prepayment when estimated fees are in

excess of $100.00.3 However, on appeal, Dr. DeFelice attests that the cost to duplicate the invoices

is $50.00 and that the invoices “must be reviewed and redacted to protect privilege information.”

Because the Unit acknowledges on appeal that its estimate is under $100, it may not seek

prepayment under Section 1307(h), and any overpayment must be refunded to the Requester.

The records have not yet been copied. Although the Unit may not require prepayment

under Section 1307(h), once the copies have been made, it may collect any incurred copying fees

prior to providing the records to the Requester. See Official RTKL Fee Schedule, available at

https://www.openrecords.pa.gov/RTKL/FeeStructure.cfm. Additionally, upon receipt of the

records, the Requester may appeal the sufficiency or completeness of the records and the fees

within 15 business days. See Buehl v. Pa. Dep’t of Corr., No. 198 C.D. 2015, 2015 Pa. Commw.

Unpub. LEXIS 552 (Pa. Commw. Ct. 2015) (finding that appellate rights may be triggered from

an agency’s response to a RTKL request and from the requester’s receipt of the requested records).

CONCLUSION

For the foregoing reasons, the appeal is granted, and the Unit is required to provide all

responsive records 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

Northampton County Court of Common Pleas. 65 P.S. § 67.1302(a). All parties must be served

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The Requester argues that she has made the $100.00 prepayment under protest, while Dr. DeFelice attests that the
Unit has not received that payment.

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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. 65 P.S. § 67.1303. 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.4 This Final Determination shall be placed on the OOR website at:

http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: September 19, 2019

/s/ Erin Burlew

_________________________
APPEALS OFFICER
ERIN BURLEW, ESQ.

Sent to: Tricia Mezzacappa (via email only);

Rebecca Young, Esq. (via email only);
Frank DeFelice (via email only)

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