Commonwealth, Pennsylvania Gaming Control Board v. Office of Open Records

DISSENTING OPINION BY Judge

PELLEGRINI.

Glomming onto one sentence contained in Section 703 of the Right-to-Know Law (RTKL),1 which states that “[ejmployees of an agency shall be directed to forward requests for records to the open records officer,” the majority would hold that a request could be made to any employee of the agency and that the time begins to run to respond against the agency with the submission of the request to any employee. The majority also holds that despite the statutory requirement that a form be prepared for use in open records request, any written request will do. Because I believe that the majority’s interpretation is at variance with the plain language of the RTKL, I respectfully dissent.

A.

The first issue is to whom RTKL requests must be made. Section 502(a)(1) of the RTKL, 65 P.S. § 67.502(a)(1), provides that “[a]n agency shall designate an official or employee to act as the open-records officer.” Regarding the Open Records Officer’s functions, Section 502(b) provides that:

(1) The open-records officer shall receive requests submitted to the agency under this act, direct requests to other appropriate persons within the agency or to appropriate persons in another agency, track the agency’s progress in responding to requests and issue interim and final responses under this act.
(2) Upon receiving a request for a public record, legislative record or financial record, the open-records officer shall do all of the following:
(i) Note the date of receipt on the written request.
(ii) Compute the day on which the five-day period under section 901 will expire and make a notation of that date on the written request.
(iii) Maintain an electronic or paper copy of a written request, including all documents submitted with the request until the request has been fulfilled. If the request is denied, the written request shall be maintained for 30 days or, if an appeal is filed, until a final determination is issued under section 1101(b) or the appeal is deemed denied.
*515(iv) Create a file for the retention of the original request, a copy of the response, a record of written communications with the requester and a copy of other communications. This subpara-graph shall only apply to Commonwealth agencies.

65 P.S. § 67.502(b). (Emphasis added.)

Not only does Section 502 designate that the open records officer is the only person designated to receive records requests, but Section 703 provides that the requestor has to address the written request to the open records officer. It provides:

A written request for access to records may be submitted in person, by mail, by e-mail, by facsimile or, to the extent provided by agency rules, by any other electronic means. A written request must be addressed to the open-records officer designated pursuant to section 502. Employees of an agency shall be directed to forward requests for records to the open-records officer. A written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested and shall include the name and address to which the agency should address its response. A written request need not include any explanation of the requester’s reason for requesting or intended use of the records unless otherwise required by law.

65 P.S. § 67.703. (Emphasis added.)

The provision says that the request must be “addressed” to the open records officer. As to the next sentence, while it does say that employees must forward a written request to the open records officer, that sentence does not mean any request has to be forwarded, but only a request that is “addressed” to the open records officer. To hold otherwise reads completely out of this provision the sentence that a written request “must” be made to the open records officer.

Taken together, these provisions mean that a request has to be “addressed” to the open records officer; only requests “addressed” to the open records officer are required to be forwarded; and time begins to run against the agency when the open records officer receives a properly addressed request. Because the request here was not addressed to the open records officer, for this reason alone, the Gaming Control Board was not required to respond to the request.

B.

The other reason that the agency was not required to respond to the written request made here is that it was not on the official form. The majority would hold that an agency cannot require that a re-questor be mandated to use the “official form” to make a records request. Again, the majority’s position is at odds with the RTKL. Section 505(a) of the RTKL, 65 P.S. § 67.505(a), provides that:

The Office of Open Records shall develop a uniform form which shall be accepted by all Commonwealth and local agencies in addition to any form used by the agency to file a request under this act. The uniform form shall be published in the Pennsylvania Bulletin and on the Office of Open Record’s Internet website.

(Emphasis added.)

Under this provision, while an agency may accept other written requests, the only request that it is required to accept are those made on the forms promulgated by the agency or the Office of Open Records. To hold that a request does not have to made on a form would relegate this statutory mandate to develop a uniform form to agency “busy work.” Again, because the request here was not on the *516prescribed form, the Gaming Control Board was not required to answer the request.

Because the majority’s holding would make an unaddressed request written on the back of a brown paper bag and given to a PennDot plow driver by the side of the road on a snowy winter night a valid right-to-know law request, I respectfully dissent.

Judges McGINLEY and COHN JUBELIRER join in this dissenting opinion.

. Act of February 14, 2008, P.L. 6, 65 P.S. § 67.703.