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FINAL DETERMINATION

TRICIA MEZZACAPPA, Complainant

v.

WEST EASTON BOROUGH, Respondent

: : : : : : :

:

Docket No: 2013-0499

INTRODUCTION

Tricia Mezzacappa (the “Requester”) submitted a request (the “Request”) to West Easton

Borough (“Borough”) pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., (“RTKL”)

seeking minutes, checklists and bank statements. The Borough denied the Request asserting the

Requester owed a past due balance of $0.25 for duplication of previously requested records. The

Requester appealed to the Office of Open Records (“OOR”) challenging the denial. For the

reasons set forth in this Final Determination, the appeal is granted and the Borough is

denieddenieddenieddenieddeniedError! Bookmark not defined.deniednot required to take any

further actionnot required to take any further actionnot required to take any further actionnot

required to take any further actionnot required to take any further actionnot required to take any

further actionrequired to take further action as set forth below.

FACTUAL BACKGROUND

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On February 13, 2013, the Requester sought minutes and checklists (all funds) approved

at the February 11, 2013 Borough council meeting as well as January 2013 bank statements. On

February 21, 2013, the Borough extended its deadline to respond pursuant to Section 902 of the

RTKL. On March 21, 2013, the Borough notified the Requester that a previously requested audit

opinion letter would be made available to her upon payment of $0.25. On March 25, 2013 the

Borough denied the Request asserting the Requester owes an outstanding balance for that audit

opinion letter. On March 25, 2013, the Requester appealed to the OOR, challenging the denial.

The OOR invited the parties to supplement the record and directed the Borough to notify any

third parties of their ability to participate in this appeal pursuant to 65 P.S. § 67.1101(c).

On April 4, 2013, the Borough provided an affidavit of Peter Layman, Esq., the Borough

Open Records Officer, asserting that at the time the Borough issued its March 25, 2013 denial the

Requester had not paid the $0.25 copying fee for the audit opinion letter. Mr. Layman asserts

that although the Requester has now paid the $0.25 she is required to file a new request for the

records she seeks in her Request.

LEGAL ANALYSIS

The RTKL 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. OOR, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), appeal granted

15 A.3d 427 (Pa. 2011). 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 or not hold a hearing is

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discretionary and non-appealable. Id .; Giurintano v. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa.

Commw. Ct. 2011). Here, neither party requested a hearing and the OOR has the necessary,

requisite information and evidence before it to properly adjudicate the matter.

The Borough is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.local302. 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).

The Borough argues that Section 901 of the RTKL permits it to deny the instant Request.

The OOR disagrees. Section 901 of the RTKL provides that “[a]ll applicable fees must be paid

in order for a requester to receive access to the record requested.” 65 P.S. § 67.901. In

Pennsylvania Department of Transportation v. Drack , the Commonwealth Court noted that a

failure to pay for costs that an agency incurs for a past request may provide the agency with "(1)

a reason either to refuse to process [the Request] or to deny access to records otherwise available

within five days until [the Requester] paid for his [] earlier RTKL requests (under Section 901 of

the RTKL) or (2) to exercise its right under Section 902(a)(6) to a thirty-day extension to respond

finally...." 42 A.3d 355, 363 (Pa. Commw. Ct. 2012). However, the decision whether to grant or

deny access to a record is to be determined based upon the facts as they exist on the date a

request is submitted, not on the later date when a response is issued. Scolforo v. Office of the

Governor , OOR Dkt. AP 2011-0276, 2011 PA O.O.R.D. LEXIS 213 (permitting denial of access

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to records that did not exist at the time a request was submitted where request sought a “schedule

from inauguration day until the date when this request is fulfilled.”).

Here, on February 13, 2013, the day the Request was submitted to the Borough, the

Requester had no outstanding balance owed because it was not until March 21, 2013 that the

Borough notified the Requester that the audit opinion letter was being made available to her, and

her obligation to pay for a copy of the audit opinion letter arose. Therefore, because the

Requester had no outstanding fees owed at the time of the Request the Borough could not

permissibly deny access on that basis. Section 901 of the RTKL does, however, permit the

Borough to require the Requester pay outstanding balances prior to receiving copies or actual

access to the requested records. As no other grounds for denial were asserted, the records are

presumed public and the appeal is granted.

CONCLUSION

For the foregoing reasons, Requester’s appeal is granted and the Borough is required to

provide the requested records within thirty (30) days. This Final Determination is binding on all

parties. Within thirty (30) days of the mailing date of this Final Determination, any party may

appeal to the Northampton localCounty Court of Common Pleas. 65 P.S. § 67.local1302(a). All

parties must be served with notice of the appeal. The OOR also shall be served notice and have

an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final

Determination shall be placed on the OOR website at: http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: April 24, 2013

_________________________

http://openrecords.state.pa.us/




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APPEALS OFFICER AUDREY BUGLIONE, ESQ.

Sent to: Tricia Mezzacappa (via email only)Peter Layman (via e-mail only)

oor dkt. 2013-0499, 500

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