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FINAL DETERMINATION IN THE MATTER OF TRICIA MEZZACAPPA, Complainant v.

BOROUGH OF WEST EASTON, Respondent : : : : : : : : :

Docket No.: AP 2013-2078

INTRODUCTION Tricia Mezzacappa (the “Requester”) submitted a request (the “Request”) to the Borough of West Easton (“Borough”) seeking to inspect minutes, bank statements and information pertaining to a DUI center impact fee pursuant to the Right-to-Know Law, 65 P.S. §§ 67.101 et seq., (“RTKL”). The Borough partially denied the Request, stating that the Request is insufficiently specific and disruptive. 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 denied in part and the Borough is required to take further action as directed. FACTUAL BACKGROUND On September 15, 2013, the Request was filed, seeking to inspect the following: all minutes, check lists (all funds) approved at the [September 9, 2013] Borough Council meeting … August 2013 bank statements, as well as all

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supporting accounting documents … on file [showing] the receipt of funds for the DUI center impact fee for the months not already requested … [which] would be the copy of checks received from West Easton, LLC for June 2013 to present, the statement of account for West Easton Development, LLC, showing where the revenue was recorded, the deposit slip for the receipt of funds, a receipt given to West Easton Development acknowledging the receipt of funds, and any other records [that the Borough has] to support his payment to the Borough[] for the impact fee. The Request also sought “all cancelled checks from West Easton Development, LLC that were cashed by [the] … Borough from September 2012 through present, which reflect the DUI Center impact fee.1 On September 23, 2013, the Borough invoked the 30-day review period under Section 902 of the RTKL. On October 23, 2013, the Borough granted the request to inspect all minutes and checklists approved at the Borough Council’s September 9, 2013 meeting and granted the request for inspection of the August 2013 bank statements if the Requester paid a copying fee of $8.75 for 34 copies at 25 cents per page due to redactions. This approval was also premised on the Requester making an appointment by e-mail to inspect the records, under the supervision of a Borough official, between 1:00 and 5:00 pm on Tuesday through Friday. Moreover, the Borough stated that the

Requester must pay past outstanding copying fees set forth by the Borough in its September 23, 2013 and October 8, 2013 letters. The Borough denied the remainder of the request concerning the documents pertaining to the DUI Center impact fee. It stated that the request was not sufficiently specific under Section 703 of the RTKL because the time period was overly broad. The Borough also stated that the Request is disruptive under Section 506(a) of the RTKL because the Requester has made numerous requests for these records, many of which do
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Although the Request states “September 2012,” the Requester later informed the OOR that the date should, instead, be September 2013.

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not exist, which has led to repeated litigation. However, the Borough also notified Requester that occupancy census reports and bank statements would be responsive to the Request and that the Requester should resubmit a request identifying access to either the census report or bank statement and the associated month. On November 4, 2013, the Requester appealed to the OOR, challenging the denial and stating grounds for disclosure. The OOR invited both parties to supplement the record and directed the Borough to notify any third parties of their ability to participate in the appeal pursuant to 65 P.S. § 67.1101(c). On November 20, 2013, the Requester submitted an affidavit in support of her appeal. LEGAL ANALYSIS “The objective of the Right to Know Law ... is to empower citizens by affording them access to information concerning the activities of their government.” SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important opengovernment law 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), aff’d 75 A.3d 453 (Pa. 2013). . 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 all testimony, evidence and documents that the appeals officer believes to be reasonably probative and relevant to an issue in dispute. 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. Id,; Giurta v. Dep’t of

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Gen. Servs., 20 A.2d 613, 617 (Pa. Commw. Ct. 2011). Here, the Requester requested a hearing in her appeal filed with the OOR. However, the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter and this request is denied. The Borough 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. See 65 P.S. § 67.305. An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. § 67.708(b). 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.” Pa. State Troopers Ass’n v. Scolforo, 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)). “The burden of proving a record does not exist ... is placed on the agency responding to the right-to-know request.” Hodges v. Pennsylvania Department of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011).

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1. Minutes and checklists approved at the September 9, 2013 meeting The Borough approved inspection of all minutes and checklists (all funds) approved at the Borough Council’s September 9, 2013 meeting if the Requester made an appointment with the Borough’s Open Records Officer through e-mail for inspection during specified hours under the supervision of a Borough official and payment of past fees set forth in the Borough’s September 23, 2013 and October 8, 2013 letters. These fee amounts and these letters were not submitted to the OOR. However, the Borough referenced an outstanding $19.00 fee adjudicated in an earlier final order where the OOR ruled that this Requester had to pay that fee before the Borough provided access to her July 9, 2013 request for financial records. Mezzacappa v. Borough of West Easton, OOR Dkt. AP 2013-1431, 2013 PA O.O.R.D. LEXIS 839. Here, the Requester argues that the Borough should e-mail the documents to her, and alleges a lack of good faith in the Borough’s record inspection policies. The

Requester only seeks inspection of records and did not ask for copies of records. The Borough may implement inspection policies setting times and dates under the supervision of a Borough official for this inspection request. See Mezzacappa v. West Easton Borough, OOR Dkt. AP 2012-0371, 2012 PA O.O.R.D. LEXIS 559. The Borough may also require payment of outstanding fees for earlier RTKL requests. See Donahue v. Luzerne Schuylkill County Workforce Investment Board, OOR Dkt. AP 2011-0511, 2011 PA O.O.R.D LEXIS 2011. In this appeal, however, there is only evidence of nonpayment of a $19.00 fee for an earlier request for access to records and there is no evidence before the OOR that the Requester has remitted this amount to the Borough.

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Accordingly, the Borough may withhold access to responsive records until the $19.00 fee for fulfilling a prior request is paid by the Requester. 2. Redaction of bank account numbers The Requester also appeals the redaction of agency bank account numbers on the August 2013 bank statements. The Borough did not claim that other information on these statements was excluded. There is no dispute that the requested bank statements are financial records subject to disclosure under the RTKL. See 65 P.S. § 67.102 (defining “financial records”). The RTKL contains no exclusion for the Borough’s account

numbers. See 65 P.S. § 67.708(b); Coppola v. Fort Cherry School District, OOR Dkt. AP 2011-0357, 2011 PA O.O.R.D. LEXIS 251. Furthermore, the Borough submitted no evidence supporting its submission to the OOR that the account numbers could be utilized to threaten the Borough’s security or asserted any exemptions. For these reasons, the Borough may not redact account numbers from its bank statements and, accordingly, cannot charge the $8.75 copying fee to Requester. 3. Other supporting documents pertaining to DUI Center Impact fee As to the remaining records, the Borough submitted an affidavit affirming that the occupancy census reports and bank statements are the only records it has pertaining to the remainder of the Request. The Borough informed the Requester that she should resubmit the Request as specifically seeking a census report or bank record and the month associated with these requested documents. In addition to providing this notification to the Requester in its response, the Borough also affirmed that it informed Requester of the foregoing in earlier requests that were subject to appeal to the OOR and the Northampton County Court of Common Pleas.

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In Mezzacappa v. Borough of West Easton, the OOR considered a request for similar records for the period from September 2012 through May 13, 2013. OOR Dkt. 2013-0853, 2013 PA O.O.R.D. LEXIS 453. This instant appeal, as stated in the Request, pertains to records for the period June 2013 through September 15, 2013. As the OOR has previously ruled that the records from September 2012 to May 13, 2013 are subject to public access in Mezzacappa, the OOR follows its prior holding. Although the Borough argues that the remainder of the Request is insufficiently specific, a review of the Request reveals that it is limited to the period from June 2013 through September 15, 2013. Because the Request defines finite categories of records and a limited timeframe, the OOR finds that the Request is sufficiently specific. Additionally, as the Request pertains to records for a different time period not denied in earlier requests, the OOR finds that the Request is not “disruptive” under the RTKL because it is not a repeated request for the same record. See 65 P.S. § 67.506(a)(1); Office of the Governor v. Bari, 20 A.3d 634, 645 (Pa. Commw. Ct. 2011). CONCLUSION For the foregoing reasons, Requester’s appeal is granted in part and denied in part and the Borough is required to allow the Requester to inspect all minutes and checklists (all funds) approved at the Borough Council’s September 9, 2013 meeting, the requested unredacted bank statements without payment of redaction or related copying costs and the census reports and bank statements for the period from June 1, 2013 through September 15, 2013 upon the Requester’s payment of the outstanding $19.00 fee if it has not already been paid. 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

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the Northampton 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 of the RTKL. This Final Determination shall be placed on the OOR website at:

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

FINAL DETERMINATION ISSUED AND MAILED: November 27, 2013

_________________________ APPEALS OFFICER JAMES A. HOLZMAN, ESQ.

Sent to: Tricia Mezzacappa (via e-mail); Peter C. Layman, Esq. (via e-mail)

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