You must go through all of this effort to find information that is supposed to have easy, public access. Mr. Malin filed his request on August 10, 2011. The final determination was made by the state, in favor of Mr. Malin, on September 23, 2011. The district has 30 days to provide the information, complete as requested. Here is a copy of the file:
FINAL DETERMINATION Michael Malin (the "Requester") submitted a request (the "Request") to the North Penn School District ("District") seeking financial records pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., ("RTKL"). The District denied the Request, stating that the requested information has not been audited and that the District does not release unaudited financial statements. The Requester appealed to the Office of Open Records ("OOR"). For the reasons set forth in this Final Determination, the appeal is granted in part and dismissed as moot in part and the District is required to take further action as directed. FACTUAL BACKGROUND On August 10, 2011, the Request was filed, seeking
Current asset and liability statements
Current government fund statements2
A list of financial statements prepared by and for the District including a schedule of their preparation if such exists
The basic financial statements referred to in the notes which [the District supplied in response to a previous request]
On August 17, 2011, the District denied the Request, stating
The information you are requesting has not been audited as of this date, and … [the] District does not publish any unaudited financial statements. Copies of the audited statements will not be available on the … District website until December 2011 following the audit of the 2010-2011 financial information for the district, the preparation of the auditor’s report and the Board of School Directors’ approval of such.
On August 26, 2011, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record. On September 2, 2011, the Requester provided a statement affirming that factual content of his submissions. On September 9, 2011, the District provided correspondence with various attachments indicating that the District provided unaudited financial information to the Requester. The District also provided a copy of the provided statements and a notarized affidavit from its Right-to-Know Officer indicating that these statements were forwarded to the Requester. After the record closed, the Requester submitted an additional statement. Because it was received after the record closed, it was not considered. 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."
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 discretionary and non-appealable.
The District is a local agency subject to the RTKL that is required to disclose public records. 65 P.S. § 67.302. 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.
Section 708 of the RTKL clearly places the burden of proof on the public body to demonstrate that a record is exempt. In pertinent part, Section 708(a) states: "(1) The burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence." 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as "such proof as leads the fact-finder … to find that the existence of a contested fact is more probable than its nonexistence."
Ass’n v. Scolforo
In the present case, the District does not dispute that the requested records are subject to public access, and, accordingly, provided the Requester with some responsive records. As a result, the appeal is moot as to the records already provided. The District, however, did not allege it provided all responsive records within its possession. Because the Request seeks additional financial records, the District is required to provide all responsive records not previously provided.
The OOR is mindful that an agency cannot produce records that do not exist within its "possession, custody or control" and, accordingly, is not ordering the creation of any records listed in the Request. Absent an agency’s provision of a sufficient evidentiary basis as to whether all responsive records have been provided, however, the OOR will order the disclosure of responsive public records. 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 3 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. 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). Pa. State Troopers , 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). See generally Sindaco v. City of Pittston, OOR Dkt. AP 2010-0778, 2010 PA O.O.R.D. LEXIS 755; Schaefer v. Delaware County, OOR Dkt. AP 2010-0752, 2010 PA O.O.R.D. LEXIS 735. CONCLUSION For the foregoing reasons, Requester’s appeal is
rules as per Section 1303 of the RTKL. This Final Determination shall be placed on theOOR website at: http://openrecords.state.pa.us.
FINALDETERMINATION ISSUED AND MAILED:September 23, 2011
APPEALS OFFICER
J. CHADWICK SCHNEE, ESQ. Sent to:Michael Malin; RobertIannozzi, Jr., Esq.
5granted in part and dismissed as moot in part and the District is required to provide the Requester with all responsive records other than those already provided 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 Montgomery County Court of Common Pleas. 65 P.S. § 67.1302(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 5 . 4 IN THE MATTER OF :
:
MICHAEL MALIN, :
Complainant :
: Docket No.: AP 2011-1146
v. :
:
NORTH PENN SCHOOL DISTRICT, :
Respondent :
INTRODUCTION
No comments:
Post a Comment