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OOR Says: Release The Audit Opinion

OOR Says: Release The Audit Opinion

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Published by tricia_mezzacappa
Audit
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Published by: tricia_mezzacappa on Feb 11, 2013
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11/25/2013

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1
FINAL DETERMINATIONTRICIA MEZZACAPPA,Complainantv.WEST EASTON BOROUGH,Respondent::::::::Docket No: 2013-0038INTRODUCTION
Tricia Mezzacappa
(the “Requester”) submitted a request (the “Request”) to
West EastonBorough
(“
Borough
”)
pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101
et seq
., (“RTKL”)
 seeking the cover letter to an Audit Opinion. The Borough denied the Request asserting that thecover letter from the auditor is exempt from disclosure by Section 708(b)(17) of the RTKL aspart of a noncriminal investigation. The Requester appealed to the Office of Open Records
(“
OOR
) challenging the denial. For the reasons set forth in this Final Determination, the appealis
granted
and the Borough is required to take further action.
FACTUAL BACKGROUND
 On November 12, 2012, the Requester sought
a copy of the “2012 Audit Opinion letter.”
The Request further states that an identical request was denied in July 2012, but that because theRequester missed the appeal deadline she is re-requesting the record. After extending its deadlineto respond pursuant to Section 902 of the RTKL, the Borough denied the Request as disruptive.
 
2The Borough also advised that it
was unsure whether the Request sought the solicitor’s let
ter orthe cover letter from the auditor to Borough council. The Borough asserted that both recordswould be
“work papers”
and exempt from public disclosure pursuant to Section 708(b)(17) of theRTKL.On January 4, 2013, the Requester appealed to the OOR, confirming that her Requestsought the Audit Opinion cover letter sent to members of West Easton Borough council. Sheargues that the Audit Opinion cover letter is the auditor
s conclusions and strategies used toreach an opinion and
not “work papers” underlying an audit.
The OOR invited the parties tosupplement the record and directed the Borough to notify any third parties of their ability toparticipate in this appeal pursuant to 65 P.S. § 67.1101(c).On January 16, 2013, the Requester submitted a statement made under penalty of perjuryreiterating her position. The Borough provided an affidavit of Peter Layman, Esq., the BoroughOpen Records Officer and Solicitor, asserting that, because the Requester did not appeal thedenial related to the July 2012 request for the audit opinion,
the Borough’s denial was a final
determination under the doctrine of 
res judicata.
Therefore, the Borough argues, the Requester isprecluded from re-litigating the issue by requesting the same document a second time. TheBorough also asserts the Request is a disruptive request under Section 506 of the RTKL becauseit is a repeat request for the same record sought in July 2012 and places a burden on the Boroughto respond. The Borough contends the Request is burdensome because the Borough has onlytwo (2) part-time staff members who work no more than forty-five (45) hours per week. TheBorough contends the repeat Request infringes
upon the Borough and its staff’s ability to
respond to other business. The Borough also reiterated its position that Section 708(b)(17) of theRTKL
 protects the Auditor’s Opinion cover letter from disclosure, as a “work paper.”
Finally,
 
3the Borough asserts the Request is properly denied because the Requester owes the Borough$4.50 for fees related to prior requests for records.
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 accountablefor 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 localagencies.
See
65 P.S. § 67.503(a). A
n appeals officer is required “to review all information filedrelating to the request”
and may consider testimony, evidence and documents that are reasonablyprobative and relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer mayconduct a hearing to resolve an appeal. The decision to hold a hearing or not hold a hearing isdiscretionary and non-appealable.
 Id 
.;
Giurintan
o 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 publicrecords. 65 P.S. § 67.302. Records in possession of a local
 
agency are presumed public unlessexempt under the RTKL or other law or protected by a privilege, judicial order or decree.
See
65P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a recordrequested is within its possession, custody or control and respond within five business days. 65P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions.
See
65 P.S. § 67.708(b).
1. Res judicata is not applicable

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