Megan K.

Shannon, Esquire
267-338-1328 (Direct Dial)
267-338-1335 (Facsimile)
mshannon@offitkurman.com

June 14, 2022

Via e-mail (rliggitt@pa.gov)

Ryan Liggitt, Esq.
Commonwealth of Pennsylvania
Office of Open Records
333 Market Street, 16th Floor
Harrisburg, PA 17101

Re: Shannon v. Philadelphia

AP 2022-0817

Dear Appeals Officer Liggitt:

I am writing in support of my Appeal docketed as AP 2022-0817. As stated in my e-mail

of June 13, 2022, several portions of my request are no longer in dispute after mediation with the
City. The outstanding items in my request are:

[2] A copy of all correspondence between Mayor Kenney’s

office and OTIS and memoranda/notes reflecting telephone,
electronic, or in-person conversations regarding the Washington
Avenue repaving and improvement project between September 21,
2020 and present.

[3] A copy of all correspondence between councilmember

Squilla's office and OTIS and memoranda/notes reflecting
telephone, electronic, or in-person conversations regarding the
Washington Avenue repaving and improvement project between
September 21, 2020 and present.

[4] A copy of all correspondence between councilmember

Johnson's office and OTIS and memoranda/notes reflecting
telephone, electronic, or in-person conversations regarding
the Washington Avenue repaving and improvement project
between September 21, 2020 and present.

[7] A copy of all documents reflecting OTIS's assessment of

the safety of Washington Avenue from January 1, 2020 to present.
Issue before the OOR

With respect to the requests for correspondence (items 2-4), the City produced 274 pages
of e-mails, with copious redactions. The City has not provided any basis for the substantive
redactions, and my position is they are not permitted to make those redactions. I am not
contesting the redactions of phone numbers, addresses and similar personal information of
constituents.

With respect to parts 2-4, the City has withheld a number of emails, but has not provided
any further information explaining what was withheld or the basis for doing so. My position is
that the City cannot withhold any responsive emails.

With respect to part 7, the request for “a copy of all documents reflecting OTIS’s
assessment of the safety of Washington Avenue from January 1, 2020 to present”, the City
asserted that this is insufficiently specific under 703(b). My position is that I have provided
sufficient subject matter, scope and timeframe.

Argument

The City of Philadelphia’s Home Rule Charter provides for a public right of inspection
broader than that provided by the RTKL. While the City has not stated any basis for its
redactions and outright withholding of e-mails in response to request items 2-4, it is anticipated
they may argue that they reflect the City’s internal, predecisional deliberations. However, the
Home Rule Charter provides a right to access records beyond that required by the RTKL,
therefore RTKL’s exemption for internal predecisional deliberations does not apply. Even if this
was not the case, the City has not established that the redacted records constitute internal,
predecisional deliberations.

I. The Records Responsive to Request Items 2-4 Must Be Provided, Unredacted, Under
the Philadelphia Home Rule Charter.

The City’s Home Rule Charter provides a broad right to inspection. Any member of the
public may inspect most City records:

City records, the disclosure of which would invade a person's right

to privacy, hinder law enforcement, endanger the public safety, or
breach a legally recognized duty of confidence, or the
nondisclosure of which is legally privileged, or which have been
prepared for or by the Law Department for use in actions or
proceedings to which the City is or may be a party, shall not be
available for public inspection. Except as herein provided, all
other City records shall be open for public inspection but the
officer, department, board or commission or other governmental
agency of the City having the care and custody of such records
 may make reasonable regulations governing the time, place and
manner of their inspection and for the purposes of archival
preservation, copies of City records may be substituted in lieu of
original records.

Philadelphia Home Rule Charter, § 5-1104. The only limitation on the right to inspect is on
records which “would invade a person’s right to privacy, hinder law enforcement, endanger the
public safety, or breach a legally recognized duty of confidence, or the nondisclosure of which is
legally privileged.” The Home Rule Charter makes no exception for records reflecting the
City’s internal, predecisional deliberations.

“In most of the Commonwealth, the RTKL is the only method of access. In Philadelphia,
the drafters of the Charter specifically included the right to public inspection. While the Charter
pre-dates the RTKL, when the RTKL was enacted, it did not explicitly preempt the Charter, and
the Charter was never subsequently amended to only provide access to City Records through a
RTKL request.” Auerbach v. City of Philadelphia, Philadelphia County Court of Common
Pleas, March Term, 2022, No. 2638. (A copy of the Court’s Memorandum Opinion is attached
as Exhibit “A”.)

The OOR has the authority to determine the public nature of records under laws beyond
the RTKL. Dep’t of Labor & Indus. v. Hetzel, 90 A.3d 823 (Pa. Commw. 2014). In Hetzel, the
Commonwealth Court wrote that “[t]he RTKL contemplates OOR’s interpretation of statutes
other than the RTKL when evaluating the public nature of records. Otherwise, it would not
define ‘public record’ in a way that implicates other laws.” Id. at 828. “OOR is the body created
to adjudicate disputes concerning denials of agency records requested under the RTKL. The
RTKL thus vests OOR with jurisdiction over challenges to the public nature of records in
possession of a Commonwealth agency.” Id at 828-9 (citations omitted).

For example, the OOR has the authority to order the disclosure of a record pursuant to the
Public Utility Code, even when the RTKL itself may not have provided access to the record.
Pennsylvania Public Utility Commission v. Andrew Seder/The Times Leader et al., 139 A.3d
165, 167 (Pa. 2016).

The OOR should therefore issue a Final Determination concluding that the City’s e-mails
responsive to Requests 2-4 are public records that must be produced with only personal
information of members of the public redacted.

II. The City has failed to meet its burden to establish that any exemption under the RTKL
applies to items 2-4.

To date, the City has not provided any affidavit or other competent evidence establishing
that it may redact or withhold records. The City has failed to provide an estimate of the number
of e-mails it has outright withheld, and it has failed to state the basis for its redactions.
 Section 708 of the RTKL places the burden of proof on the City to demonstrate that a
record is exempt. RTKL § 708(a)(1). While a statement made under the penalty of perjury is
competent evidence to sustain an agency’s burden of proof, “a generic determination or
conclusory statements are not sufficient to justify the exemption of public records.” Office of the
Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Commw. Ct. 2013)

The City has failed to provide any rationale or affidavit demonstrating that the emails
responsive to request items 2-4 are exempt or may be redacted.

III. The Request for “a copy of all documents reflecting OTIS’s assessment of the safety
of Washington Avenue from January 1, 2020 to present” is sufficiently specific under
§ 703 of the RTKL.

In determining whether a particular request is sufficiently specific, the OOR uses the
three-part balancing test employed by the Commonwealth Court in Pa. Dep’t of Educ. v.
Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015); see also Carey v. Pa. Dep’t of
Corr., 61 A.3d 367, 372 (Pa. Commw. Ct. 2013). First, “[t]he subject matter of the request must
identify the ‘transaction or activity’ of the agency for which the record is sought.” Pa. Dep’t of
Educ., 119 A.3d at 1125. Second, the scope of the request must identify a discrete group of
documents (e.g., type or recipient). See id. at 1125. Third, “[t]he timeframe of the request should
identify a finite period of time for which the records are sought.” Id. at 1126.

When interpreting a RTKL request, agencies should rely on the common meaning of
words and phrases, as the RTKL is remedial legislation that must be interpreted to maximize
access. See Gingrich v. Pa. Game Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub.
LEXIS 38 at *16 (Pa. Commw. Ct. 2012) (citing Bowling, 990 A.2d 813).

Here, the request identifies a clear “transaction or activity”: the Office of Transportation,
Infrastructure, and Safety’s safety assessments for Washington Avenue. The request has a clear
scope: documents in the agency’s possession which reflect OTIS’s safety assessment(s). Finally,
the timeframe is definite and less than two years: January 1, 2020 to present.

Conclusion

For the foregoing reasons, I respectfully request that the OOR enter a Final
Determination directing the City to produce all records responsive to request items 2-4 and 7,
unredacted, within 30 days.

Sincerely,

Megan K. Shannon
Cc: Andy Segedin, Esq. (via e-mail)
4895-3715-5109, v. 2