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OOR Determines that Emails from Members of the Public to an Agency are Records “of” the Agency

In Ruland v. Southern York County School District, AP 2019-0567 (Aug. 8, 2019), the OOR concluded that, in certain circumstances, emails from community members to an agency can be public records.

 

In this case, the requester sought emails sent to and received by the Elementary School Principal and the Superintendent concerning the Elementary School Principal dressing up as Steve Harvey, the game show host.  With respect to emails from the public, the District took the position that unsolicited emails from community members are not public records. 65 P.S. § 67.102.

To determine if certain material is a record, the RTKL imposes a two-part inquiry: (1) does the material document a “transaction or activity of the agency”; and (2) if so, was the material “created, received or retained … in connection with a transaction, business or activity of [an] agency.”  For emails to qualify as records of an agency, the OOR must look to the subject matter of the records. Emails are not considered records “of” an agency merely because they were sent or received using agency email addresses or by virtue of their location on an agency computer. 

In Pa. Office of Attorney General v. Bumstead, 134 A.3d 1204 (Pa. Commw. Ct. 2016), the requester sought pornographic emails sent or received by employees of the Office of Attorney General (“OAG”) utilizing their agency email accounts. There, the Court found that the emails were not records of the OAG because the pornographic nature of the email did not relate to a transaction or activity of OAG, reasoning that the subject matter had nothing to do with the agency’s business.

Similarly, in Grove v. Penns Valley Area School District, OOR Dkt. AP 2018-0754, 2018 PA. O.O.R.D. LEXIS 849, the OOR found that unsolicited comments on the District Facebook page were not records of the agency. In that case, the District provided evidence that the comment function must be enabled to have Facebook page, the comments were not used in any decision-making process and that it has a policy that the Facebook page was not intended to be a public forum. Additionally, the comments that made it past the District filters, regardless of tone or content were deleted or hidden. The OOR held that “[t]o be records of the District, the comments must document, prove, support or evidence a transaction or activity of the District. Additionally, the subject matter of the comments must relate to District operations.” 

However, in this case, the District emailed the community a statement regarding the incident and the identified emails from the community were responses to that statement. The OOR concluded that: “A public statement, by its very nature, invites a public response” and held that because the emails either condemn or condone the District’s actions related to the incident, the emails document the District’s business and are records under the RTKL.

As evidenced by this post and the previous post, not every record in the possession of an agency is a record “of” the agency under the RTKL.  Accordingly, Open Records Officers should work with their solicitors when making such determinations.

If you have any questions or comments, please do not hesitate to contact Chris Voltz or any of the other Municipal and School Attorneys at Tucker Arensberg, P.C.

September 24, 2019

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