Montgomery County v. Iverson

CONCURRING OPINION BY

President Judge PELLEGRINI.

While I agree that that the open records request submitted by Paul Iverson was not sufficiently specific under Section 703 of the Right-to-Know Law (RTKL), 65 P.S. § 67.703,11 write separately because I disagree with some of the reasoning used by the majority in reaching that conclusion.

As noted by the majority, Iverson submitted his open records request to Montgomery County seeking copies of all e-mail records “to and from the <montcopa.org> mail domain, to and from the <septa.org>, <dvrpc.org>, <pahouse.net> and <pa-senate.com> domains” in which both the e-mail subject and body contain any of the following terms: “Newton”; “Fox Chase”; “Fox Chase-Newton”; “R8”; “HS-1”; “Pennypack”; “Trail”; “Greenway”; “Pa-tee”; “Bryn Athyn”; “Pitcairn”; “Park-house”; “Lorimer”; or “Bethayres.” Although Iverson specified the domains and the relevant keywords to be searched for in e-mails, he did not limit this request to any specific timeframe. I agree with the majority that a specific timeframe is needed so that the agency does not have to expend tax dollars to search records that are not pertinent to the request. Moreover, requiring specificity does not deny access to the documents; all that it does is require a requestor to submit a new application. Use of the form prepared by the agency that sets forth the required information and delivery of it to the Open Records Officer would facilitate, not impede, access because the form tells the requestor what the agency needs and gets the request to the party charged with expediting the request.

The other basis that the majority finds that the request is insufficiently specific deals with an issue we have not dealt with before — a request based on a “word search.” No one here is contending that a word search is not a valid request because it is a request for documents with words, not a subject matter of the documents or the context in which the document is created. Unlike what occurred before digitization, when a request was made to an agency for records, the requestor would explain what he or she was after and the person fulfilling the request would go to the files where the information would be located— e.g., the files containing information on a “greenway” or a “trail” in “Fox Chase.” With digitization, like using Google, a word search can be used to discover information on an enterprise basis, and if the search is not refined, as we all know, it can produce thousands of documents not relevant to the information that is sought. When such a *286number of results are retrieved, whether in a legal database or in Google, a search is refined because it is impractical to review every citation in the list of results. Not only would such review be impractical in the RTKL context, but an agency must also review every citation for information that is exempt from disclosure.

In addressing that issue, the majority finds that the word search here is insufficiently specific because “it does not identify specific individuals, email addresses, or even departments, but requests any applicable emails from the County’s domain to four other domains. There is no context within which the search may be narrowed. It is true that the Request limits the emails sought to those that have one of fourteen terms in the subject line; however, some of those search terms, such as ‘trail,’ are incredibly broad.” Op. at p. 284. The majority reasons that because the request could produce a large number of documents, access could be denied because it would place an unreasonable burden on an agency to examine all its e-mails for an extended period without knowing, with sufficient specificity, what township business or activity the request is related. Id. See Mollick v. Township of Worcester, 32 A.3d 859, 871 (Pa.Cmwlth.2011) (holding that the request for e-mails among Township Supervisors and between the Supervisors and Township employees regarding any Township business and/or activities for a one to five-year period was deemed to be overbroad).

I agree with the majority that the word search here is insufficiently specific because, on its face, the request provides no context to allow for the narrowing of results to know exactly what the information Iverson is seeking. 65 P.S. § 67.703 requires 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.... ” Even if the word search provides sufficient context, if it is obvious that a word search requested contains too may common terms, or the word search itself produces records which, after sampling, contain a significant percentage of documents that have nothing to do with the request, the agency can deny the request as being not sufficiently specific. However, I disagree with the majority’s suggestion that an agency does not have to automatically comply with the request just because the request produces a large number of documents for review. 65 P.S. § 67.1308(1) prohibits a policy or regulation which places “a limitation on the number of records which may be requested or made available for inspection or duplication.”

I also part company with the majority’s suggestion that a requestor has to identify specific individuals, e-mail addresses or even departments in the request. I disagree for several reasons with that reasoning. Nothing in the RTKL requires that a requestor know who authored the document, the names that are involved or the e-mail addresses. All that the RTKL requires is that the request be made with such specificity that the documents requested can be identified.

Finally, and having said all that, the County does not have to conduct a word search in this case because it does not have the capability with its present equipment to make such a search, and it is under no obligation to purchase the equipment or software giving it that capability. As noted by the trial court, the County’s Infrastructure Development Master, Anthony Olivieri, testified that Montgomery County does not have the physical storage equipment to sift through all of the e-mails that Iverson requested, and that the County would have to buy new servers and *287storage devices to accommodate the request. (Reproduced Record at 98a.) Oli-vieri opined that it would take two weeks to restore each calendar year of e-mails into the new system, so that the County would expend ten weeks to simply gather all of the e-mails that would be accessible back to 2006. (Id. at 104a.) Once all of the data is restored, Olivieri explained that the County would then have to create a minimum of 7,500 personal storage table files for the data to then start mining for the information identified by the keywords in Iverson’s request. (Id. at 101 a-03a.) Olivieri stated that each of Iverson’s 14 search terms would then have to be examined separately and that each search would take approximately 45 days for each calendar year of e-mails on the new server, and that individual machines would have to be searched as well. (Id. at 104a-06a.) Olivi-eri confirmed that this expensive and laborious process would be the only way to comply with the request submitted by Iv-erson. (Id. at 107a.)

As noted by the County, Section 705, 65 P.S. § 67.705, states that “[w]hen responding to a request for access, an agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.” In addition, Section 507, 65 P.S. § 67.507, states that “[n]othing in this act shall be construed to modify, rescind or supersede any record retention policy or disposition schedule of an agency established pursuant to law, regulation, policy or other directive.”

Thus, the RTKL does not require the County to engage in the extraordinarily burdensome process of reclaiming the broad swath of archived records based on Iverson’s request or to expend funds to purchase equipment to comply with a request under the RTKL. Moreover, the RTKL does not require the County to purchase the new hardware and software that would be required to accommodate such an unlimited and unwarranted search.

Accordingly, like the majority, I agree that the trial court’s order should be affirmed because Iverson’s request was not sufficiently specific under 65 P.S. § 67.703.

Judges LEAVITT and COVEY join in this concurring opinion.

. Act of February 14, 2008, P.L. 6. 65 P.S. § 67.703, states, in relevant part, 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.... ”