FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No: AP 2020-0276
:
MUNICIPALITY OF MONROEVILLE, :
Respondent :
:
and :
:
MONROEVILLE VOLUNTEER FIRE :
COMPANY No. 5, :
Direct Interest Participant :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to the Municipality of

Monroeville (“Municipality”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101

et seq., seeking 2018 and 2019 testing results for fire hoses, pumps and ladders. The Municipality

denied the Request, asserting that it did not possess any testing results. The Requester appealed

to the Office of Open Records (“OOR”). For the reasons set forth in this Final Determination, the

appeal is granted, and the Municipality is required to take additional action as directed.

FACTUAL BACKGROUND

On January 6, 2020, the Request was filed, seeking electronic copies of “the yearly testing

results for all hose, pumps and ladders for 2018 and 2019… per Ordinance #2632, paragraph #8.”

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On February 11, 2020, after invoking an extension of time to respond, the Municipality denied the

Request, arguing that the Municipality does not possess any testing results for hoses, pumps, and

ladders for 2018 and 2019.

On that same date, the Requester appealed to the OOR, challenging the denial and stating

grounds for disclosure. The Requester contests the Municipality’s position that no records exist

in its possession and further claims that the Municipality is required, pursuant to Section 506(d)

of the RTKL, to inquire with certain third-party contractors, i.e. fire companies and vendors

mentioned in a Fire Services Agreement, for responsive records. 65 P.S. § 67.506(d). In support

of her position, the Requester includes a link to Municipality Ordinance 2632 and a Fire Services

Agreement (“Agreement”) appended to the Ordinance, between the Municipality and several fire

companies. Under the Agreement, the fire companies provide fire, rescue and emergency medical

services, among other services, to the Municipality in consideration of funding and other assistance

from the Municipality. Along with her appeal, the Requester includes a copy of a letter, dated

January 13, 2020, from Attorney Kristy Rizzo, on behalf of Monroeville Volunteer Fire Company

No. 5 (“MVFC No. 5”), one of the fire companies that is subject to the Agreement. MVFC No.

5’s letter denies the Request, arguing, among other things, that it is not subject to the RTKL, 65

P.S. § 67.102, and that there are no ordinances or regulations that require it to provide the requested

information to the Municipality. The OOR invited the Requester and the Municipality to

supplement the record and directed the Municipality to notify any third parties of their ability to

participate in this appeal. 65 P.S. § 67.1101(c).

On February 24, 2020, the Municipality, in support of its position that responsive records

do not exist, submitted an affidavit from Joe Sedlak, the Municipality’s Open Records Officer and

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Director of Human Resources. On that same date, the Requester submitted documents reflecting

test results from another local agency’s affirmative response to a similar request for records.

On February 24, 2020, the MVFC No. 5 submitted a Request to Participate Before the

OOR, along with a position statement and various exhibits. Additional argument concerning

Section 506(d) of the RTKL was filed by the Requester on February 25, 2020.

On February 28, 2020, the OOR granted MVFC No. 5’s Request to Participate and sought

an extension of time from the Requester to issue a Final Determination in order to gather additional

information from the Municipality; the Requester agreed to extend the deadline until March 31,

2020 for issuance of a Final Determination.

On March 2, 2020, the OOR sought additional details about what steps were taken by the

Municipality in conducting its search for responsive records. The OOR also requested that the

Municipality address the Requester’s argument concerning Section 506(d) of the RTKL and

explain whether or not it had contacted any third-party contractors, including vendors, who may

be in the possession of responsive records.1 The Municipality was asked to respond to the OOR’s

request by March 10, 2020. To date, the OOR has not received a response to its request for

additional information from the Municipality.

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 open-government 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

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The OOR received a return email receipt indicating that the OOR’s request for information was “read” by the
Municipality’s Open Records Officer on the same date it was sent.

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actions.” Bowling v. Office of Open Records, 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 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 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. The decision to hold a hearing is discretionary and non-appealable. Id.;

Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing; however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Municipality is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302. Records in the 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. 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).

Section 708 of the RTKL 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

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evidence.” 65 P.S. § 67.708(a)(1). 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 Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)). Likewise, “[t]he burden of proving a record does not exist ... is placed on the

agency responding to the right-to-know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190,

1192 (Pa. Commw. Ct. 2011).

The Municipality asserts that it does not possess records responsive to the Request. In his

affidavit, Mr. Sedlak attests that he “conducted a manual search for the relevant requested records

and the Municipality is not in possession of the requested records.” Under the RTKL, an affidavit

may serve as sufficient evidentiary support for the nonexistence of records. See Sherry v. Radnor

Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office of Open Records,

992 A.2d 907, 909 (Pa. Commw. Ct. 2010). However, conclusory statements are not sufficient to

demonstrate that the requested records do not exist. See Office of the Governor v. Scolforo, 65

A.3d 1095, 1103 (Pa. Commw. Ct. 2013) (“[A] generic determination or conclusory statements

are not sufficient to justify the exemption of public records”).

In response to a request for records, “an agency shall make a good faith effort to determine

if ... the agency has possession, custody or control of the record[.]” 65 P.S. § 67.901. While the

RTKL does not define the term “good faith effort,” in Uniontown Newspapers, Inc. v. Pa. Dep’t

of Corr., the Commonwealth Court concluded that:

As part of a good faith search, the open records officer has a duty to advise
all custodians of potentially responsive records about the request, and to obtain all
potentially responsive records from those in possession.... When records are not in
an agency’s physical possession, an open records officer has a duty to contact
agents within its control, including third-party contractors.... After obtaining

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 potentially responsive records, an agency has the duty to review the record and
assess their public nature under ... the RTKL.

185 A.3d 1161, 1171-72 (Pa. Commw. Ct. 2013) (internal citations omitted); see also Rowles v.

Rice Twp., OOR Dkt. AP 2014-0729, 2014 PA O.O.R.D. LEXIS 602 (citing Judicial Watch, Inc.

v. United States Dep't of Homeland Sec., 857 F.Supp.2d 129, 138-39 (D.D.C. 2012)). Additionally,

the Commonwealth Court has held that an open records officer’s inquiry of agency members may

constitute a “good faith effort” to locate records. Mollick v. Twp. of Worcester, 32 A.3d 859, 875

(Pa. Commw. Ct. 2011); see also In re Silberstein, 11 A.3d 629, 634 (Pa. Commw. Ct. 2011)

(holding that it is “the open-records officer’s duty and responsibility” to both send an inquiry to

agency personnel concerning a request and to determine whether to deny access).

While Mr. Sedlak indicates that he conducted a “manual search for the relevant requested

records,” there is no evidence presented describing the files searched by him or whether he inquired

of other Municipality personnel for responsive records. See Moore v. Pa. Dep’t of Corr., 1638

C.D. 2016, 2017 Pa. Commw. Unpub. LEXIS 704 (Pa. Commw. Ct. 2017) (finding generic

declarations of an agency’s open records officer to be insufficient to support the conclusion that

records do not exist without, at a minimum, a description of the records the open records officer

reviewed); cf. McKown v. Muni. of Monroeville, OOR Dkt. AP 2019-2655, 2020 PA O.O.R.D.

LEXIS 226 (a “manual search” for “bills” within the accounts payable department of the

Municipality was sufficient to demonstrate that no responsive bills existed in the possession of the

agency).

Accordingly, based upon the evidence provided, the Municipality has failed to prove that

it conducted a good faith search for responsive records and that records do not exist within its

physical possession. See, e.g., Yakim v. Muni. of Monroeville, OOR Dkt. AP 2017-1650, 2017 PA

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O.O.R.D. LEXIS 1540; Yakim v. Muni. of Monroeville, OOR Dkt. AP 2017-0768, 2017 PA

O.O.R.D. LEXIS 740.

Additionally, the Requester argues that if the Municipality is not in possession of the test

results sought by the Request, then the Municipality is required, under Section 506(d) of the RTKL,

to inquire with its vendors and/or third-party contractors for responsive records. Section 506(d)(1)

of the RTKL states that:

A public record that is not in the possession of an agency but is in the

possession of a party with whom the agency has contracted to perform a
governmental function on behalf of the agency, and which directly relates to the
governmental function and is not exempt under this action, shall be considered a
public record of the agency for purposes of this act.

65 P.S. § 67.506(d)(1). In Allegheny County Dep’t of Admin. Servs. v. A Second Chance, Inc., the

Commonwealth Court explained that records “in the possession of a party with whom an agency

has contracted to perform a governmental function on behalf of the agency” are presumptively

public records subject to public access, “so long as the record (a) directly relates to the

governmental function and (b) is not exempt under the RTKL.” 13 A.3d 1025, 1039 (Pa. Commw.

Ct. 2011); See also 65 P.S. § 67.305(a). “[T]o satisfy the ‘directly relates’ prong, the records must

relate to the performance of the governmental function.” Dental Benefit Providers, Inc. v. Eiseman,

86 A.3d 932, 940 (Pa. Commw. Ct. 2014). In determining whether records directly relate to a third

party’s performance of its governmental function, the Commonwealth Court has consistently

looked to whether the records are relevant to the third party’s performance of its governmental

function. See Buehl v. Office of Open Records, 6 A.3d 27 (Pa. Commw. Ct. 2010); Giurintano v.

Dep’t of Gen. Servs., 20 A.3d 613, 615 (Pa. Commw. Ct. 2011).

It is undisputed that the Municipality contracts with various fire companies to carry out a

governmental function - fire protection and emergency medical services. See Malhotra v.

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Municipality of Monroeville, OOR Dkt. AP 2018-1346, 2018 PA O.O.R.D. LEXIS 1053; Yakim

v. Municipality of Monroeville, OOR Dkt. AP 2017-0515, 2017 PA O.O.R.D. LEXIS 445; Yakim

v. Municipality of Monroeville, OOR Dkt. AP 2017-0747, 2017 PA O.O.R.D. LEXIS 757. The

Requester included a link to the Agreement that exists between the Municipality and six fire

companies for the provision of these services. See Municipality of Monroeville, Ordinance No.

2632, entered July 24, 2015. As such, the Municipality has a duty to retrieve records from the fire

companies which are directly related to the governmental function of providing fire protection and

emergency services.

The Requester specifically points to Paragraph 8 of the Agreement as the basis for why the

requested testing results should be accessible. Paragraph 8 of the Agreement sets forth the

following requirements:

8. The Companies shall have the sole responsibility for the operation of all
fire apparatus. The Municipality shall provide maintenance in a timely fashion and
fuel for all Fire Department equipment and vehicles. The method and location of
repair work shall be determined by the MFCC, subject to the approval of the
Municipal Manager. In addition, the Municipality agrees to provide yearly testing
by a Certified third-party vendor with warranty of NFPA compliance [] of hose,
ladders, and pumps that is required by the Insurance Service Office (ISO) and meets
the National Fire Protection Association (NFPA) standards. The Municipality shall
keep all records of the repair, maintenance, upkeep, and preventative maintenance
of the vehicles addressed by this Agreement.

This provision explicitly sets forth the Municipality’s agreement to conduct annual testing of hose,

pumps and ladders to ensure compliance of that equipment with various industry standards. “Test

results for all hose, pumps and ladders” directly relate to the provision of fire protection services,

as they reflect the operational efficacy and safety of the fire apparatus utilized by the fire

companies to carry out services under the Agreement. Thus, these records are directly relevant to

the governmental function of providing fire protection services. If the fire companies possess the

requested test results, they would be subject to access under the RTKL.

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 The Municipality, however, offers no evidence or information to address the Requester’s

argument under Section 506(d) of the RTKL. Despite the obvious fact that MVFC No. 5 received

notice of the Request and this appeal, the Municipality provides no evidence that it contacted

MVFC No. 5 or any of the other fire companies subject to the Agreement to inquire whether they

possessed the requested test results. Further, no evidence has been presented from the

Municipality to show that it contacted any certified third-party vendors who may have been

utilized to conduct the testing required per the Agreement.

MVFC No 5., a direct interest participant in this matter, argues that it is not an agency

under the RTKL and that it, therefore, is not subject to the requirements of the Law. See Yakim v.

Monroeville Fire Co. No. 5, OOR Dkt. AP 2018-0299, 2019 PA O.O.R.D. LEXIS 664 (finding

MVFC No. 5 is not a local agency under the RTKL). However, as the Request was submitted to

the Municipality, and not MVFC No. 5, the OOR need not address this claim. Instead, the issue

before the OOR focuses on the Municipality’s obligations under Section 506(d) of the RTKL to

contact third-party contractors, such as MVFC No. 5 and the other fire companies, along with

vendors, for potentially responsive records.

MVFC No. 5 also contends that there are no ordinances, regulations, or provisions within

the Agreement that require it to provide the requested information to the Municipality. While this

contention may be true, the fact that there is no explicit language in the Agreement, or otherwise,

requiring MVFC No. 5 to provide testing results to the Municipality does not excuse the

Municipality from its obligations under Section 506(d) of the RTKL. Moreover, we concluded

above that the requested test results are directly relative to the performance of the Agreement. The

Agreement obligates the Municipality to provide annual tests of hose, ladders and pumps that are

used by the fire companies to perform fire protection services. Any records reflecting the results

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of those tests are records of the Municipality, whether they exist in the hands of the Municipality

or a fire company contracted under the Agreement. For the reasons stated above, the test results

are accessible under Section 506(d) of the RTKL.2

Based on the lack of evidence that the Municipality conducted a good-faith search of the

records in its possession or contacted third-party contractors or vendors that may have records

responsive to the Request, this appeal will be granted and the requested test results must be

provided to the Requester. 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 the Municipality’s provision of a sufficient evidentiary

basis as to whether any responsive records exist in the first place, however, the OOR will order

the disclosure of responsive public records. See generally Sindaco v. City of Pittston, OOR Dkt.

AP 2010-0778, 2010 PA O.O.R.D. LEXIS 755; Schell v. Delaware County, OOR Dkt. AP 2012-

0598, 2012 PA O.O.R.D. LEXIS 641.

CONCLUSION

For the foregoing reasons, the appeal is granted, and the Municipality is required to

conduct a good faith search for responsive records and, to the extent they exist, provide all such

records to the Requester within thirty days. This Final Determination is binding on all parties.

Within thirty days of the mailing date of this Final Determination, any party may appeal to the

Allegheny County Court of Common Pleas. 65 P.S. § 67.1302(a).3 All parties must be served

2
It’s unclear from MVFC No 5’s position statement and affidavit whether any responsive records actually exist within
its possession. The affidavit, which verifies the statements in MVFC No. 5’s position statement, does not reference
the existence (or nonexistence) of responsive test results. Page one of the position statement contains a statement
indicating: “As to Supplemental Responses by Requestor: “[MVFC No. 5] responses: No record is found – yearly
testing results for all hose, pumps and ladders.” However, it is unclear from this statement alone and without further
explanation whether MVFC No. 5 is affirmatively stating that it has no such records.
3
Regarding the deadlines in this section, note that the Supreme Court has suspended all time calculations and
deadlines relevant to court cases or other judicial business through April 3, 2020. (See
http://www.pacourts.us/assets/files/page-1305/file-8634.pdf, last accessed March 30, 2020).

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with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond

as per Section 1303 of the RTKL. 65 P.S. § 67.1303. However, as the quasi-judicial tribunal

adjudicating this matter, the OOR is not a proper party to any appeal and should not be named as

a party.4 This Final Determination shall be placed on the OOR website at:

http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: March 30, 2020

/s/ Angela Edris

_________________________
APPEALS OFFICER
ANGELA EDRIS, ESQ.

Sent via email to: Tricia Mezzacappa;

Joe Sedlak, AORO;
Kristy Rizzo, Esq.

4
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

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