Board of Supervisors of Milford Township v. McGogney

DISSENTING OPINION BY

Senior Judge KELLEY.

I respectfully dissent. The majority concludes, inter alia, that the functions of an open records officer are ministerial and administrative in nature; therefore, the Milford Township open records officer did not have the actual authority to waive the attorney-client privilege. I disagree.

Pursuant to the general rule set forth in Section 901 of the Right-to-Know Law7 (RTKL), the Township’s open records officer, Janya Awckland, had five business days to respond to Requestor’s request. As stated in the majority opinion, due to Awckland’s concerns regarding the five day time limit, she sent the unredacted requested records to Requestor without the Township solicitor’s consent. However, pursuant to Section 902 of the RTKL, 65 P.S. § 67.902, Awckland had another choice other than sending the unredacted requested documents to Requestor within five business days. Section 902 governs an extension of time and provides as follows:

(a) DETERMINATION. — Upon receipt of a written request for access, the open-records officer for an agency shall determine if one of the following applies:
(1) the request for access requires redaction of a record in accordance with section 706;
(2) the request for access requires the retrieval of a record stored in a remote location;
*575(3) a timely response to the request for access cannot be accomplished due to bona fide and specified staffing limitations;
(4) a legal review is necessary to determine whether the record is a record subject to access under this act;
(5) the requester has not complied with the agency’s policies regarding access to records;
(6) the requester refuses to pay applicable fees authorized by this act; or
(7) the extent or nature of the request precludes a response within the required time period.
(b) NOTICE.—
(1) Upon a determination that one of the factors listed in subsection (a) applies, the open-records officer shall send written notice to the requester within five business days of receipt of the request for access under subsection (a).
(2) The notice shall include a statement notifying the requester that the request for access is being reviewed, the reason for the review, a reasonable date that a response is expected to be provided and an estimate of applicable fees owed when the record becomes available. If the date that a response is expected to be provided is in excess of 30 days, following the five business days allowed for in section 901, the request for access shall be deemed denied unless the requester has agreed in writing to an extension to the date specified in the notice.
(3) If the requester agrees to the extension, the request shall be deemed denied on the day following the date specified in the notice if the agency has not provided a. response by that date.

Accordingly, under Section 902(a)(4) of the RTKL, if an open records officer is uncertain regarding his or her duty to disclose requested information under the RTKL, the open-records officer may assert the need for an extension of time to, inter alia, determine if the request for access requires redaction of a record or perform a legal review to determine whether the requested information is subject to access. 65 P.S. § 67.902(a)(4); Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510, 514 (Pa.Cmwlth.2010). Thus, no agency, such as the Township, can credibly claim that any requested records that the open records officer decided to disclose within the five business day time period are not subject to disclosure because it lacked sufficient time to thoroughly consider a request under the RTKL.

Herein, once Awckland performed her duty as the Township’s open records officer and provided the requested records to Requestor, the documents were in the public domain. It matters not that Awckland may have made a mistake in providing the requested documents or that the requested records may be immune from disclosure based on attorney-client privilege. The Township authorized Awckland to perform all of the functions of the open records officer under the RTKL. In light of the aforementioned provisions of the RTKL, the Township cannot now claim that Awck-land released the requested records prematurely when Section 902 of the RTKL provides an avenue for an open records officer to secure an extension of time to provide any requested records. Therefore, I would reverse the trial court’s order.

. Act of February 14, 2008, P.L. 6, 65 P.S. § 67.901.