State rules City must turn over requested records to NewsLanc re Marriott / CRIZ / RACL

The following is the ruling by the Office of Open Records of the State of Pennsylvania requiring the City to provide NewsLanc with copies of all the requested documents pertaining to the CRIZ grant, RACL, and communications with Penn Square Partners pertaining to the expansion of the Marriott Hotel in downtown Lancaster..

This is an extraordinary victory by NewsLanc and the Lancaster public.  Time will tell whether the City cooperate with the ruling or continues to hide its dealings by filing an Appeal.

FINAL DETERMINATION

IN THE MATTER OF : : ROBERT FIELD, : Requester : :

v.

: Docket No.: AP 2017-1266

: CITY OF LANCASTER, : Respondent : :

INTRODUCTION

Robert Field (“Requester”) on behalf of NewsLanc, submitted a request (“Request”) to the City of Lancaster (“City”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq., seeking records regarding a hotel expansion in the City. The City partially denied the Request, asserting that certain records are confidential proprietary information, while a portion of the Request asks questions rather than seeking records. 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 dismissed in part, and the City is required to take further action as directed.

FACTUAL BACKGROUND

On May 3, 2017, the Request was filed, stating:

NewsLanc is requesting copies or access to all documents between and among RACL, the CRIZ Authority and Penn Square Partners … pertaining to an application and written communications to and from [Penn Square Partners], its

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general partner, or firms with some ownership in common with the general partner concerning the expansion of the downtown Marriott Hotel by approximately a hundred guest rooms. Without limiting scope of the request but to facilitate the provision of most relevant matters, our initial concerns have to do with representations of costs of the project, who is the formal applicant, to whom do the CRIZ funds ultimately get paid, and what guarantees, if any, are being given by parties as to repayment of grants should there be a shortfall from relevant tax increments.

On May 10, 2017, the City invoked a thirty day extension of time to respond to the Request. See 65 P.S. § 67.902. On June 11, 2017, the City partially denied the Request, asserting that certain records are confidential proprietary information. See 65 P.S. § 67.708(b)(11). The City further stated that the Request asked questions rather than seeking documents.

On June 26, 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 City to notify any third parties of their ability to participate in this appeal. See 65 P.S. § 67.1101(c).

On July 6, 2017, the City submitted a position statement verified by Patrick Hopkins, Open Records Officer for the City, in which the City argues that the Request is insufficiently specific.

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 actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013).

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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 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, neither party requested a hearing; however, the OOR has the requisite information and evidence before it to properly adjudicate the matter.

The City 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 Commonwealth agency or local agency receiving a request by a preponderance of the evidence.” 65 P.S. § 67.708(a). 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)

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(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)).

1. A portion of the Request asks questions rather than seeking records

In its final response, the City states that the Request contains several questions, and although the questions were not requests for specific records, the City was responding with the requested answers. A request must seek records, rather than answers to questions. See Gingrich v. Pa. Game Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at *14 (Pa. Commw. Ct. 2012) (noting that the portion of a request “set forth as a question” did not “trigger a response”); Moll v. Wormleysburg Borough, OOR Dkt. AP 2012-0308, 2012 PA O.O.R.D. LEXIS 197; see also Stidmon v. Blackhawk Sch. Dist., No. 11605-2009 at 5 (Beav. Com. Pl. Dec. 14, 2009) (“The [RTKL does] not provide citizens the opportunity to propound interrogatories upon local agencies, rather it simply provides citizens access to existing public records”). The presence or absence of a question mark is not determinative as to whether a request asks a question. See Varick v. Paupack Twp., OOR Dkt. AP 2013-1348, 2013 PA O.O.R.D. LEXIS 766.

Here, the second portion of the Request states “[w]ithout limiting scope of the request but to facilitate the provision of most relevant matters, our initial concerns have to do with representations of costs of the project, who is the formal applicant, to whom do the CRIZ funds ultimately get paid, and what guarantees, if any, are being given by parties as to repayment of grants should there be a shortfall from relevant tax increments.” This portion of the Request does not seek records, but rather asks the City to provide the answers to questions regarding the CRIZ Authority. The OOR cannot refashion the questions asked in the Request into a request for records. See Pa. State Police v. Office of Open Records, 995 A.2d 515, 516 (Pa. Commw. Ct.

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2010) (“Nowhere in [the RTKL] has the General Assembly provided that the OOR can refashion the request”). Accordingly, the appeal as to this portion of the Request is dismissed. See Petka v. Pa. Dep’t of Transp., OOR Dkt. AP 2014-1288, 2014 PA O.O.R.D. LEXIS 996.

2. A portion of the Request is sufficiently specific

The City argues that the Request is insufficiently specific. Section 703 of the RTKL states that “[a] written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.” 65 P.S. § 67.703. When interpreting a RTKL request, agencies should rely on the common meaning of words and phrases, as the RTKL is remedial legislation that must be interpreted to maximize access. See Gingrich v. Pa. Game Comm’n., No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at *16 (Pa. Commw. Ct. 2012) (citing Bowling, 990 A.2d at 824). In determining whether a particular request under the RTKL is sufficiently specific, the OOR uses the three-part balancing test employed by the Commonwealth Court in Pa. Dep’t of Educ. v. Pittsburgh Post- Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015), and Carey v. Pa. Dep’t of Corr., 61 A.3d 367, 372 (Pa. Commw. Ct. 2013).

First, “[t]he subject matter of the request must identify the ‘transaction or activity’ of the agency for which the record is sought.” Pa. Dep’t of Educ., 119 A.3d at 1125. In Carey, the Commonwealth Court found a request for unspecified records (“all documents/communications”) related to a specific agency project (“the transfer of Pennsylvania inmates to Michigan”) that included a limiting timeframe to be sufficiently specific “to apprise [the agency] of the records sought.” 61 A.3d 367. Second, the scope of the request must identify a discrete group of documents (e.g., type or recipient). See Pa. Dep’t of Educ., 119 A.3d at 1125. Finally “[t]he timeframe of the request should identify a finite period of time for which

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records are sought.” Id. at 1126. This factor is the most fluid and is dependent upon the request’s subject matter and scope. Id. Failure to identify a finite timeframe will not automatically render a sufficiently specific request overbroad; likewise, a short timeframe will not transform an overly broad request into a specific one. Id.

Here, the Request seeks “all documents between and among RACL, the CRIZ Authority and Penn Square Partners … pertaining to an application and written communications to and from [Penn Square Partners], its general partner, or firms with some ownership in common with the general partner concerning the expansion of the downtown Marriott Hotel by approximately a hundred guest rooms.” The Request seeks a discrete group of documents (all documents between the City and RACL, the CRIZ Authority and Penn Square Partners), related to a specific project (expansion of the downtown Marriott). While the Request does not provide a specific time frame, because the items are limited to a particular project, the Request is inherently limited to a specific time frame. Additionally, the City’s response in which it provided various records to the Requester indicates that it understands what the Request seeks and what records would be responsive to the Request. See Easton Area School District v. Baxter, 35 A.3d 1259, 1265 (Pa. Commw. Ct. 2012) (“[T]he request was obviously sufficiently specific because the School District has already identified potential records included within the request”). Therefore, this portion of the Request is sufficiently specific to enable the City to determine which records are being requested.

In its final response, the City asserts that it redacted records that are exempt from disclosure as records containing confidential proprietary information. Section 708(b)(11) of the RTKL exempts from disclosure “[a] record that constitutes or reveals a trade secret or

3. The City has not demonstrated that responsive records are confidential

proprietary information

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confidential proprietary information.” 65 P.S. § 67.708(b)(11). Confidential proprietary information is defined by the RTKL, as follows:

Commercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.

65 P.S. § 67.102. An agency must establish that both elements of this two-part test are met in order for the exemption to apply. See Sansoni v. Pa. Hous. Fin. Agcy., OOR Dkt. AP 2010- 0405, 2010 PA O.O.R.D. LEXIS 375; see also Office of the Governor v. Bari, 20 A.3d 634 (Pa. Commw. Ct. 2011) (involving confidential proprietary information).

In determining whether certain information is “confidential,” the OOR considers “the efforts the parties undertook to maintain their secrecy.” Commonwealth v. Eiseman, 85 A.3d 1117, 1128 (Pa. Commw. Ct. 2014), rev’d in part, 125 A.3d 19 (Pa. 2015). “In determining whether disclosure of confidential information will cause ‘substantial harm to the competitive position’ of the person from whom the information was obtained, an entity needs to show: (1) actual competition in the relevant market; and, (2) a likelihood of substantial competitive injury if the information were released.” Id.

Here, in its final response, the City generally asserts that certain responsive records are exempt from disclosure as confidential proprietary information. However, conclusory statements are not sufficient to establish that the records are exempt under the RTKL. See Office of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw. Ct. 2013) (“[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records”). As the City has not submitted any evidence demonstrating that the withheld records are confidential proprietary information, the City has failed to meet its burden that the records are exempt under Section 708(b)(11). See 65 P.S. § 67.708(a)(1).

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CONCLUSION

For the foregoing reasons, the Requester’s appeal is granted in part and dismissed in part, and the City is required to provide the withheld records. 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 Lancaster County Court of Common Pleas. 65 P.S. § 67.1302(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.1 This Final Determination shall be placed on the website at: http://www.openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED:

/s/ Kathleen A. Higgins ____________________________ APPEALS OFFICER KATHLEEN A. HIGGINS, ESQ.

Sent to: Robert Field (via e-mail only); Patrick Hopkins (via e-mail only)

July 26, 2017

1 Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013). 8