Law Office of Audrey Buglione 4304 New Jersey Avenue Harrisburg, PA 17112 By: Audrey Buglione, Esquire LD. No. 206587 ‘Telephone (717) 657-1597 Attomey for audrey @recordslaw.com, Appellee Austin Nolen DELWARE COUNTY : COURT OF COMMON PLEAS Appellant : DELAWARE COUNTY, PA CIVIL ACTION - LAW AUSTIN NOLEN : NO, 14-10490 Appellee : PRE AND NOW, this day of , 2014, upon consideration of Appellant Delaware County's Petition for Review the Final Determination of the Pennsylvania Office of Open Records, and any response thereto, it is hereby ORDERED and DECREED that said Petition is DENIED and that: (1) Appellant Delaware County, at Appellant’s expense, shall provide Appellee all records responsive to Appellee’s Right to Know Request within ten (10) days of the date of this Order;(2) Appellant Delaware County shall pay to Appellee as authorized by 65 P.S. 67.1305(a) the statutory civil penalty of $1,500.00 for Appellant's bad faith denial of access to public records within ten (10) days of the date of this Order; (3) Appellant Delaware County shall pay to Appellee as authorized by 65 P.S. 67.1304(c) the penalty of S within ten (10) days of the date of this Order; (4) Appellee may file a Bill of Costs for consideration by the Court; (5) Appellee shall motion the Court if Appellant Delaware County fails to comply with this, Order and may in that case pursue additional appropriate sanctions as authorized by 65 P.S. 67.1305(b) By the Court:Law Office of Audrey Buglione 4304 New Jersey Avenue Harrisburg, PA 17112 By: Audrey Buglione, Esquire LD. No. 206587 Telephone (717) 657-1597 Appellee Austin Nolen DELWARE COUNTY : COURT OF COMMON PLEAS Appellant : DELAWARE COUNTY, PA CIVIL ACTION-LAW AUSTIN NOLEN : NO. 14-10490 Appellee ANSWER TO APPELLANT'S PETITION REQUESTING JUDICIAL REVIEW OF A FINAL DETERMINATION OF THE PENNSYLVANIA OFFICE OF OPEN RECORDS. Appellee, Austin Nolen (“Appellee” or “Requester”), by and through his attomey, Audrey Buglione, Esquire, hereby files the within Answer to Appellant, Delaware County (“Appellant” or “County") Petition Requesting Judicial Review of the Final Determination of the Pennsylvania Office of Open Records, as follows: 1. Admit d. 2. Admitted. 3. Admitted. 4, Admitted. 5. Admitted. 6. Admitted.7, Admitted. 8. Admitted. 9. Admitted. 10, Admitted in part. It is admitted that on or about October 9, 2014 Appellant Delaware County submitted correspondence to the Office of Open Records. It is admitted that the Appellant asserted, without evidence, that the claimed exemptions apply. Denied in part. It is denied that the exemptions apply. The County willfully or with wanton disregard of its obligations under the Pennsylvania Right-to-Know Law deprived the Appellee requester of access to public records by failing to identify the responsive records, failing to review the responsive records and failing to provide any legal or factual basis to support a claim that the records are not in its possession, custody or control or that any exceptions as set forth in the Pennsylvania Right-to-Know Law apply to the responsive records. The Appellant Delaware County's failure to provide any evidence supporting its position before the Pennsylvania Office of Open Records and subsequent decision to file the instant Petition for review of the Office of Open Records Final Determination warrants an award of reasonable attorney fees and costs of litigation to the Appellee as permitted by Section 1304 of the Right-to-Know Law, 65 P.S. § 67.1304(b). The County’s appeal to this Court is a frivolous waste of judicial resources and warrants an award of reasonable attorney fees and costs of litigation to the Appellee as permitted by Section 1304 of the Right-to-Know Law, 65 P.S. § 67.1304. ‘The County's appeal to this Court is a waste of judicial resources and contrary to the process established by the Right-to-Know Law which provides a forum for review of agency denials without the need for a requester to incur the expense of legal fees. TheCounty had ample opportunity to submit evidence to support its position and chose not to do so. It is also denied that the Appellant stated that the records are in the “possession” of a third party governmental agency. Specifically, in its October 9, 2014 correspondence the Appellant Delaware County states that the “repository of most of these records” is the ‘Southeastern Pennsylvania Regional Task Force. A “repository” is commonly defined as a place, building or receptacle where things may be stored. Delaware County never asserted, and cannot now do so, that the records are not in its possession, custody or control. The Right-to-Know Law requires agencies such as Delaware County to retrieve its records and review those records in response to a request, regardless of where the records are stored. 1. Ad d. 12. Admitted. 13, Admitted. 14, Denied. ‘The Appellant Delaware County, not the Requester, bears the burden to prove that it permissibly denied a request for records made under the Right-to-Know Law. Delaware County failed to provide any evidence that it reviewed the records in question, failed to provide any evidence of a factual or legal basis supporting a denial of access and failed to provide any evidence that the records are not in its possession, custody or control. It is denied that the Office of Open Records improperly considered facts and/or argument submitted by Appellee. The Office of Open Records properly decided the ‘matter based upon Delaware County’s failure to provide any evidence to support a denial of access. 15. Admitted.16. Denied. The Appellee is without knowledge or information sufficient to form a belief as to the truth of whether responsive records are in the possession of the Southeastern Pennsylvania Regional Task Force. Even if the records are stored with the Southeastern Pennsylvania Regional Task Force, as set forth above in paragraph 10 of this Answer, Delaware County is required to obtain the requested records in response to a Right-to- Know request because the records document a transaction ot activity of Delaware County and are in the possession, custody or control of Delaware County. It is denied that the ‘Appellee is required to make his request for records to the Southeastern Pennsylvania Regional Task Force because the records are in the possession, custody or control of Delaware County and document a transaction or activity of the Appellant Delaware County. 17. Denied, The Right to Know Law requires agencies such as Delaware County to obtain its records in response to a Right-to-Know Request regardless of whether or not those records are in the physical possession of the agency. An agency cannot deny access to records simply because it has located its records in such a way as to make it difficult for the agency to retrieve those records. 18, Denied. It is denied that requiring the Requester to submit a new Request does not prejudice the Requester Appellee. The Request was made on August 13, 2014 over five months ago. Requiring the Requester to make the Request to another entity, which may or may not be a governmental agency, does prejudice the Requester as it results in a continued delay of access to the public records requested. Further, even if the Southeastern Pennsylvania Regional Task Force is an agency subject to the Right-to- Know Law and physically holds the records, the records requested are also those of19. 20. Delaware County because the records document a transaction or activity of the County. Delaware County is required to provide the records regardless if another agency would also be required to provide the records. Denied, The Office of Open Records did not abuse its discretion or err as a matter of law by ordering Appellant to provide the requested records. Appellant provided no evidence that it searched for records and provided no evidence that the records are not in its possession, custody or control. ‘That the records or copies of the records may also be in the possession of the Southeastern Pennsylvania Regional Task Force does not alter the obligation of the Appellant Delaware County to provide the records. Further, the County's untimely provision of the invoice is supporting evidence that the additional requested records which relate to the item(s) on the invoice are records in the possession, custody or control of Delaware County. Further, the County's failure to provide the invoice with its August 28, 2014 response to the Request is evidence that the County disregarded its obligation to search for responsive records prior to responding to the Request, supports the Office of Open Records determination and warrants the imposition of a civil penalty as permitted by Section 1305 of the Right-to-Know Law, 65 P.S. § 67.1305. Denied. The Appellee is without sufficient knowledge ot information to respond to what “important procedural/due process consideration” violations by the Office of Open Records the Appellant Delaware County refers. The Office of Open Records used the proper standard in deciding the appeal given that the County bears the burden to support its denial and it failed to search for and review responsive records, failed to provide any evidence that the requested records are not public and failed to provide any evidence thatthe responsive records are not in the County's possession, custody or control. Based upon the Appellant Delaware Counties failure to comply with the provisions of the Right- to-Know Law and search for responsive records, identify responsive records and provide legal and factual support for its denial of access before the Office of Open Records, this appeal should be considered frivolous warranting the award of attorney fees and costs of litigation to the Requester. WHEREFORE, the Appellee, Austin Nolen, prays as follows: 1. That this Honorable Court affirm the Final Determination of the Office of Open Records and order the Appellant Delaware County to immediately provide the requested records to the Appellee. 2. That all costs of litigation and other reasonable fees, including Appellee’s attorneys’ fees, be charged to and borne by Appellant, Delaware County; 3. That this Honorable Court impose a civil penalty upon Appellant Delaware County for the bad faith denial of access to public records; 4, For such other relief as this Court deems appropriate. Respegtfully submitted, Audrey Buglione Ly Attomey for Appellee Austin Nolen LD. #206587 4304 New Jersey Avenue Harrisburg, PA 17112 P: 717-657-1597 audrey@recordslaw.comCERTIFICATE OF SERVICE I, Audrey L. Buglione, certify that on December 15, 2014, I sent a true and correct copy of Appellee’s Answer to Appellant's Petition Requesting Judicial Review of a Final Determination of t he Pennsylvania Office Of Open Records, via United States Mail, postage prepaid, to: Francis J. Catania, Esquire Office of the Delaware County Solicitor 201 West Front Street Media, PA 19063 ‘Audrey C. BuglioneLaw Office of Audrey Buglione 4304 New Jersey Avenue Harrisburg, PA 17112 By: Audrey Buglione, Esquire LD. No. 206587 Telephone (717) 657-1597 Attorney for audrey @recordslaw.com Appellee Austin Nolen DELWARE COUNTY : COURT OF COMMON PLEAS Appellant : DELAWARE COUNTY, PA CIVIL ACTION -LAW ‘AUSTIN NOLEN : NO, 14-10490 Appellee ENTRY OF APPEARANCE To the Director of the Office of Judicial Support, in the Civil Division of Delaware County: Please enter my appearance for the Appellee in the above captioned matter. ‘Attorney for Appellee Audrey L. Buglione 4304 New Jersey Avenue Harrisburg, PA 17112 LD. # 206587 (717) 657-1597 audrey@recordslaw.comCOURT OF COMMON PLEAS DELWARE COUNTY : Appellant : DELAWARE COUNTY, PA CIVIL ACTION - LAW RIGHT TO KNOW LAW AUSTIN NOLEN NO. 14-10490 Appellee VERIFICATION I verify that the statements made in this Answer to Appellant’s Petition Requesting Judicial Review of a Final Determination of the Pennsylvania Office of Open Records are true and correct to the best of my knowledge, information, and belief. I understand that false statements ‘made herein are subject to the penalties of 18 PA. C.S. Subsection 4904, relating to unsworn falsification to authorities. vee MUON coh Ur ‘Austin Nolen