pennsylvania

OFFICE OF OPEN RECORDS
FINAL DETERMINATION IN THE MATTER OF CAROLL TIGNALL, Complainant

v.
DALLASTOWN Respondent AREA SCHOOL DISTRICT, INTRODUCTION Carroll Tignall (the "Requester")

Docket No. AP 2010-0869

submitted a request to Dallastown Area School District Law, 65 P.S. §§67.101 et seq., ("RTKL") seeking

(the "District") pursuant to the Right-to-Know purchase orders/invoices November municipal

for voter cards, names of meeting attendees and e-mails related to the The District provided an attestation of non-existence for the

election.

purchase order and attendees, and claimed the e-mails requested are not "records of' the District. The Requester timely appealed to the Office of Open Records ("OOR"). For the reasons set forth

in this Final Determination, the appeal is denied and the District is not required to take further action.

FACTUAL BACKGROUND
On August 26, 2010, the Requester submitted a right-to-know request for (1) copies of the purchase order, invoice, payment authorization and payment transaction for the cost of printing the voter reminder cards distributed by the District in advance of the May 19,2010 primary election; (2) names of all individuals that attended the may 2009 Parent Advisory Group meeting; (3) all e-mails sent or received by the individuals listed below between October 1,2009 and November 4, 2009 that reference any topic related to the November Municipal Election: i.e., Pay Athletics, Pay to Play, Pay Sports, Extracurricular Fees, School Board Election, School Director Election, General Election, Municipal Election, November Election, School Board Candidates, School Director Candidates, etc. ("E-mails") (electronically)

followed by 21 names (the "Request"). Lisa Kirby, Open Records Officer (ORO), timely responded stating that with respect to Parts 1 and 2, no responsive records exist, and denied E-mails sought in Part 3 because they are not In support of

records of the District and do not document a transaction or activity (the "Response"). non-existence, the ORO submitted a notarized attestation ("Attestation").

Of the individuals listed,

the District notes that they are not board members and do not have authority to conduct official District business, and that the subject-matter of the e-mails does not involve District business. The Requester timely appealed arguing that the records claimed to be non-existent should exist, the

information sought should be separately provided, and e-mails are public record, and include as a sender recipient the Athletic Director, who conducts District business ("Appeal"). The District supplemented the record with a letter arguing its position and an additional With regard to non-existence,

affidavit supporting the facts set forth in the Response ("Affidavit").

the ORO explains that the records do not exist in any form and notes that there is no obligation to create responsive records or respond to questions in lieu of providing a record. The District

explains that the Parent Advisory Group (PAG) is comprised of volunteers who meet periodically in a town-meeting style to discuss concerns and to allow the Superintendent to answer questions.

The District clarifies that the PAG has no authority to conduct business for the District and no business occurs at the meetings, and no formal attendance is taken. With regard to E-mails, the District attests that the individuals listed are or were District employees or coaches, all of them were or are issued e-mail addresses and were or are coaches for the District, other than Harvey, who is the Athletic Director. The District also attests that it does The District (York CCP

not conduct municipal elections and does not have a "pay to play" athletic program. argues that In re Silberstein (MacNeal v. York Township), No. 2009-SU-004714-08

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April 5, 2010)(on appeal), is controlling because the District is located in York County.

The

District asserts that the e-mails are not "records" as defmed under the RTKL because they do not document a transaction, business or activity of the District. The District distinguishes Dixon v. Mt.

Lebanon School District, OOR Dkt. AP 2010-0446, because the e-mails at issue in that case
pertained to business of the district and were among the staff and governing body. By contrast,

here, the e-mails are not of subjects within the business of the district, or among governing representatives and do not document District activities. Further, the District explains that since the lack authority to make

District does not have pay athletic programs, and the senders/recipients policy, any discussion of those topics could not be considered "deliberation." 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. 2010).

The OOR is An

authorized to hear appeals for all Commonwealth

and local agencies. See 65 P.S. §67.503(a). filed relating to the request."

appeals officer is required "to review all information §67.1102(a)(2).

65 P.S.

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.

Id. The law also states that an appeals officer may admit into evidence testimony, evidence and
documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. Id. Here, neither party requested a hearing and the OOR has the requisite and necessary information and evidence, through sworn, written testimony, to properly adjudicate the matter. The District is a local agency subject to the RTKL and required to disclose public records.

See 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. See 65 P.S.

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§67.305. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §67.708(b). However, an agency cannot be compelled to produce records that do not exist. The District substantiated by the Affidavit and its earlier Attestation that it does not possess responsive records to Parts 1 and 2 of the Request. The Affidavit is sufficient evidence to substantiate this fact. See Moore v. OaR, 992 A.2d 907,909 (Pa. Commw. 2010). Thus, the District met its burden with regard to Parts 1 and 2 and need take no further action. With regard to Part 3, the District relies upon its argument that E-mails do not constitute records of the District. The District established that senders/recipients are or were employees, and have or had District e-mail addresses; to that extent, the E-mails are within the District's control. The District argues that it has no obligation to provide records based upon Silberstein. However, the Court's holding in Silberstein depended upon shifting the burden of proof to the requester who was required by the Court to demonstrate that e-mails are "records" of the Township, whereas the RTKL clearly places the burden of proof solely upon the agency to overcome the presumption of openness. The Commonwealth Court recognized as much in its cases, including Jones v. OaR, 993 A.2d 339 (Pa. Commw. 2010). Accordingly, Siberstein is not controlling as an appellate court has ruled otherwise regarding the burden of proof. However, the District establishes that the E-mails do not pertain to or document a business, transaction, activity of the District because the subject-matter does not involve District business. The District established it does not have pay to play or pay athletics and does not conduct municipal elections, subjects identified by the Requester. Coaches have no authority to transact District business or create policy. The RTKL applies only to "records" of the District and information qualifying under Section 102. To the extent that coaches e-mailed each other

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regarding the municipal elections, including for School Board or School Directors, the E-mails are not "records" of the District and there is no obligation to disclose them. CONCLUSION For the foregoing reasons, the Requester's appeal is denied. This Final Determination is binding on the parties. Within thirty (30) days of the mailing date of this Final Determination, either party may appeal to the York 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 rules as per Section 1303. This Final Determination shall be posted on the website at: http://openrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED: October 22,2010

dtJ3,v:.t; d~v:_

LUCINDA GLINN, ESQ. APPEALS OFFICER Sent to: Caroll Tignall; Lisa Kirby for District

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CARROLL TIGNALL MONARCH DRIVE YORK, PA J 74030

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(717) 428-1866 2010-SU-006266-29 >:;i (410) 802-4784 '___ . ~ IN THE COURT OF COMMON PLEAS, YORK COUNTY PENNSYL'VANIA ~J

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CARROLL TIGNALL Petitioner,
v.

NO. C1VIL ACTION -LAW .lURY TR1AL DEMANDED

,
s

COMMONWEALTH OF PENNSYLVANIA, OFF1CE OF OPEN RECORDS (OOR) and DALLASTOWN AREA SCHOOL DISTRICT, Respondent.

APPEAL OF AGENCY DETERMINATION

NOW COMES the Petitioner, CARROLL TIGNALL, and files tbis Complaint, stating the following:
1. 2.

The Petitioner is CARROLL TIGNALL, of520 Monarch Drive, York, PA 17403. The Respondents are:
A. COMMONWEALTH OF PENNSYLVANIA,

OFF1CE OF OPEN RECORDS

(OOR), Keystone Building, 400 North Main Street, Fourth Floor, Harrisburg, PA 171200025.

B. DALLASTOWN
PA 17313-9242.

AREA SCHOOL D1STRICT, 700 New School Lane, Dallastown,

3.

The Petitioner made a written request for records directed to Lisa Kirby', Open Records Officer, Dallastown Area High School, (DASD~ all August 26,2010. Request Letter, attached hereto and made a part hereof as Exhibit "A." \ Lisa Kirby is also the private secretary for the Superintendant, Stuart Weinberg, Ph.D. See copy of the

4.

The Request Letter was made due to the fact that the in the 2009 election for school board members, the Petitioner, who is a member of the DASD School Board, had received numerous complaints about the Superindentant and Adrninstrative Staff and Professional

Staff being directly involved in activities to influence the school board election, including the creation of advocacy emails and print materials using DASD computers and material, advocacy of candiciates at parent advisory board meetings and the use of students working polls on ejection day.
5. The Request Letter contained three (3) separate paragraphs and requestes the following

records. See Exhibit "A" 6. By letter dated, Septem.ber 3, 2010, the Respondent, per Lisa Kirby, Open Records Officer, denied the request. 7. The response to each request was is summarized as follows:
1) These records do not exist. ... 2) These records do not exists ....

3) Such ernails would not be records of the district, as that term is defined in the Law. The emails wou Id not document a "transaction or activity" of the district, nor do they meet any other protion of the defintion of a record. Further, the individuals listed are not boards members, and they do not have authority to conduct offical dictrict business. Similary, the topics do not involve officical district buisiness. See copy of the Denial Letter, attached hereto and made a part hereof as Exhibit "B." 8. On September 20, 2010 the Petitioner filed a timely Appeal of the Denial of the Requested Information to the OOR. made a part hereof as Exhibit "C." 9. After the appeal was filed, the assigned Appeal Officer, Licinda Glinn, Esquire contacted the parties requesting more information. See copy of the Appeal Letter, attached hereto and

10.

On October 22, 2010 the Appeals Officer isueda written determination denying the Records Request. See copy of the Determination, attached hereto and made a part hereof as Exhibit "d.".

11.

In the Determination fr011"1 OOR, there is a reference to a supplemented record being the filed by DASD, See page 2 of the Determination.

12,
13.

The Petitioner never received a copy of the supplemental information frrom the DASD. The Petitioner then contacted the Appeals Officer and requested a copy of all materials submitted by DASD.

14,

On November 15,2010

the Appeals Officer emailed the Supplemental Information

submitted by the DASD to the Petitioner. See Supplemental Information, attached hereto and made a part hereof as Exhibit "E."
1S,

A record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record. The presumption shall not apply if:
(1) the record is exempt under section 708; I (2) the record is protected by a privilege; or

(3) the record is exempt from disclosure under any other Federal 91' State law or regulation or judicial order See 65 P.S. § 67.305, PART 2 OF THE REQUEST (PAG) 16, Part 2 of the Request Letter from the Petitioner concerns the Parent Advisory Group (PAG).
OJ'

decree.

17.

The Determination

found that the DASD explained that no records existed and that the

PAG had no asuthority to conduct business and that therefore, the request was properly denied. 18. 19. The Petitioner disputes the factual basis for the denial that any records exist. A Record, under the Right-to-Know Law, is defined as: "Record." Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document. 65 P.S. § 67,102. 20. In the minutes of the Loganiville-Springfield Elementary School PTA meeting, dated

June 1,2009, the minutes of the meeting reference the PAG, which states: "Parent Advisory. "Gay Strayer reported that the main topic for the their meeting revolved around the recent school board electioon. The committee disucssed a plan for finding a candidate to run in the fall elections. The candidate could not be registered as a democrat or republican and would be need to be willing to campaign during the summer. The candicate would represent Region lI1. , . ",,2 See Minutes of the Loganiville-Springfield made a part hereof as Exhibit "F." 21. Elementary School PTA, attached hereto and

The Petitioner knows from his excperience on the school board, that anytime the DASD has a meeting, an attendance list is passed-around for attendees to write down their name and possibly other information.

The primary election for school board took place in 2009. The PAG meeting was held after the primary election, Two candidates who were previously elected to the school board lost the election. These two were David Inkrote and James Morton. The DASD was then actively soliciting candidiates to run as independents against those who won the primary election.
2

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22.

The Petitioner believes and therefore avers that tl1ere is a list of people on the PAG who are notified of the meeting time and place.

23.

The Petitioner believes and therefore avers that tl~e Superindentant behalf of the ideas floated at this

or someone on his

1)AG.

24.

The Determination

concerning part 2 of the Request Letter is incorrect and should be

reversed by this Court. WHERFORE, the Petitioner respectfully requststhat this Honorable Court reverse the

Determination concerning part 2 of the Request Letter. :
;

PART 3 OFtHE REQUES'T (EMAlLS)
25. The Determination indicates that the emails requested do not pertain to or document a
,

business, transaction or activity of the DASD because the subject-matter involved DASD business. 26. The Petitioner believes that these records clearly document a "transaction

does not

or activity" of

the DASD, i.e. illegal activity concerning the influence of an election by the Superintendant 27. and other Professional and Adrninsitrative Staff.

The Petitioner has in his possession an email between Torance N. Harvey, CAA, Director of Athletics to coaches, employees and others, which states, 'in part: "Dr. Weinberg called me this morning and mentioned that he is surprised and disappointed on the lack of parent knowledge concerning the election and that he is determining from parents he talks to at numerous events. Please remember some of the things that were discussed at our August coaches meeting. There are difference ideas about interscholastic athletics from our candidates that are running for the board .... " See Email between Torance N. Harvey, CAA, Director of Athletics, attached hereto and made a part hereof as Exhibit "G." ;
[

28,

In an October 23,2010 email between Mark Koons, a teacher at DASD and Stewart Weinberg, Mr. Koons states that he had four (4) students volunteer at the polls and that the rest of the students were searching for candidates to help, According to the email, candidates Sue Heistand, Lauren Rock and Kenneth Potter, Jr. requested student volunteers to help with their campaigns. See Email dated October 23,2009, attached hereto and made a part hereof as Exhibi't "H."

29,

TOI), Harvey, the DASD Athletic Director, participated forwarding clearly political emails intended to infloucence an election from School Board Candidate, Lauren Rock, using his DASD email address:Tory.Harvev@dallastown.net.

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30,

The Determ ination is interpreting the terms "transaction or activity of any agency" .too narrow.
.., ,

31.

Under this anaylsis, access to any records containing any illegal or improper "activity" could be denied on the basis that the "activity" does not involve" business" of the agency.

32.

The Right-To-Know

would be defeated if the public is denied access to reocrds that

document illegal or improper activity. WHERFORE, Determination the Petitioner respectfully requsts that this Honorable Court reverse the

concerning part 3 of the Request Letter.

Respectfully Submitted,

DATED: ~2-1,:2..0/0

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BY:

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