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In a School District’s Investigation into Complaints about Library Books, Communications are Not Public Records

Christopher L. Voltz, Esq., cvoltz@tuckerlaw.com, (412) 594-5580

Foster v. Pennridge School District, AP 2023-0931 (July 5, 2023). The Office of Open Records determined that a school district properly redacted and withheld certain email chains discussing the school district’s investigation into complaints concerning resource materials available in the school district’s student library pursuant to the non-criminal exception of the Pennsylvania Right-to-Know Law.   

CASE BACKGROUND

In March 2023, an individual (“Requester”) submitted a request for records (“Request”) to the Pennridge School District (“District”) pursuant to the Pennsylvania Right-to-Know Law (“RTKL”) seeking communications sent from or to any District school board members (“Board”) over a five-month timeframe about five specific books.

The District partially denied the Request, providing, inter alia, two redacted email chains and withholding five email chains pursuant to the noncriminal investigation exception set forth in Section 708(b)(17) of the RTKL, 65 P.S. § 67.708(b)(17). The Requester appealed to the Office of Open Records (“OOR”). The OOR denied the appeal, finding that the District had legislatively authorized fact-finding powers to conduct official inquiries into complaints about the propriety of library material and that the District met its burden of proving that responsive records were related to a noncriminal investigation.

DISCUSSION

Section 708(b)(17) of the RTKL exempts from disclosure a record of an agency relating to a noncriminal investigation, including: complaints submitted to an agency, investigative materials, notes, correspondence and reports, and a record that, if disclosed, would reveal the institution, progress, or result of an agency investigation. 65 P.S. §§ 67.708(b)(17)(i)-(ii), (vi)(A). In order for this exemption to apply, a school district must demonstrate that “a systematic or searching inquiry, a detailed examination, or an official probe” was conducted regarding a noncriminal matter. Further, the inquiry, examination, or probe must be conducted as part of a school district’s official duties. Importantly, an official probe only applies to noncriminal investigations conducted by school districts acting within their legislatively granted fact-finding and investigative powers.

First, the OOR found that the District engaged in a searching inquiry regarding a noncriminal matter because, as demonstrated by the District’s affidavit and exemption log, the withheld emails related to complaints concerning books, addressed the steps taken and particular areas for consideration and evaluation, provided updates on the progress of the investigation, and discussed how to proceed. 

Next the OOR concluded that the investigation of the complaints was conducted as part of the District’s official duties because the District had adopted policies pursuant to the School Code authorizing such investigations. Specifically, the School Code empowers school boards to establish, equip, furnish, and maintain libraries and authorizes school boards to adopt reasonable rules and regulations regarding the management of its school affairs. 24 P.S. §§ 5-502, 5-510. The OOR found that, pursuant to this authority, the Board had adopted a policy concerning its resource materials and a policy concerning public complaints, which permitted investigations into such complaints. Accordingly, the OOR concluded that the District’s investigation into the complaints was part of its official duties.

Based on the foregoing, the OOR concluded that the evidence established that the District had legislatively authorized fact-finding powers to conduct official inquiries into complaints about its library books and that the District met its burden of proving that it conducted such an investigation and that the responsive emails were related to this noncriminal investigation. Accordingly, the OOR denied Requester’s appeal.

PRACTICAL ADVICE

This case confirms that school districts can conduct investigations into complaints about its library books and, if it has the proper policies and procedures in place, communications and other records related to such investigations are not public records under the RTKL. However, it is essential that such policies and procedures exist. For example, in Nowicki v. Council Rock School District, AP 2022-2108, a requester sought, among other things, emails sent by a community member related to the school district’s review of allegedly inappropriate material contained in district library books. The school district denied access to five email records, arguing that they relate to a noncriminal investigation. The OOR rejected this argument because the school district failed to identify any laws authorizing or procedures describing an official investigation. Accordingly, school districts should work with their solicitors and administration to ensure that they have adopted policies and procedures to conduct such investigations.

For more information, contact Chris Voltz at (412) 594-5580 or click here for more information about Chris.

November 08, 2023

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