CONCURRING & DISSENTING OPINION BY
Judge SIMPSON.I respectfully concur in and dissent from the thoughtful majority opinion. For the reasons described below, I would affirm the decision of the Court of Common Pleas of Northampton County (trial court).
I.
I concur in that part of the majority opinion which affirms part of the trial court’s affirmance of the Office of Open Record’s (OOR) determination. OOR determined that Christopher Baxter (Requester) should receive copies of all emails sent to or received from specified, official Easton Area School District (School District) e-mail addresses assigned to school board members and the School District superintendent, over a one month period.
The School District’s “Acceptable Use” policy expressly provides that “The e-mail system is reserved for official [School District] messaging.” Tr. Ct., Slip Op. at 8; Reproduced Record at 129a. The policy also provides that a user shall have no expectation of privacy. Id. These limitations on the subject matter of the e-mails support the result.
*1266After the OOR’s determination, however, the School District raised a new argument on its appeal to the trial court. It asserted that under this Court’s recent decision in In re Silberstein, 11 A.3d 629 (Pa.Cmwlth.2011), e-mails to or from individual school board members were not public records as a matter of law because individual members could not conduct School District business. The Requester countered that because this issue was not raised in the original denial or in proceedings before the OOR, it was waived. The trial court held that the School District could raise the issue for the first time on appeal because Silberstein was not decided until after the OOR’s determination. The trial court distinguished this Court’s decision to the contrary in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa.Cmwlth.2010).
In my view, the respected trial court erred on the waiver issue. The tardy raising of the “public record” defense to disclosure resulted in an appeal which careened off in a significantly different direction after the OOR’s determination. As discussed below, it also resulted in the lack of any record on a factual issue material to the majority’s disposition. The Requester does not press his waiver argument on further appeal to this Court, so there is a reason for the majority’s decision not to address it fully. Nevertheless, we need to make clear that new defenses to disclosure cannot be raised by agencies after proceedings before the OOR merely because this Court renders a new decision.
II.
I must dissent, however, to that part of the majority opinion and order which reverses “as to that portion of [the trial court’s] order providing for the disclosure of private activities.” Easton Area School Dist. v. Baxter, 35 A.3d 1259, 1265 (Pa. Cmwlth.2012). There are several reasons for my position.
First, and most obvious, there is nothing in the trial court’s opinion or order that says anything about “disclosure of private activities.” The trial court simply denied the School District’s appeal and affirmed the OOR determination. Similarly, there is nothing in the OOR determination that addresses “disclosure of private activities” because that issue was never raised. As a result, it is difficult to know what parts of the foregoing orders are reversed.
Second, and more important, because of the way the appeal was distorted by the tardy raising of the “public record” defense, there is no information in the record to support a determination that any of the e-mails in question contain references to “private activities.” Indeed, the School District never made this factual argument, never offered proof to support it, and never sought partial reversal on this basis. Rather, the School District argued (to the trial court and this Court) that because of the status of individual school board members e-mails to or from them could not be public records as a matter of law.
Third, because of the lack of detail in the majority order, I do not understand what happens next. Does the School District initiate a new review for “private activities” information, and the case starts all over again? Is the case remanded to the OOR for a new review of e-mail content? Or, is the reversal part of the majority order purely prospective in nature, so that it does not apply to the current controversy at all but will only apply to future requests for e-mails? I am stumped.
For all these reasons, I would affirm the trial court outright. I would not reverse any part of the trial court’s order based on *1267“private activities” disclosure as the record does not support such action.