CLEARFIELD – A three-judge panel of the Commonwealth Court of Pennsylvania recently affirmed President Judge Fredric Ammerman’s decision that handwritten notes from two phone calls received by a former Clearfield County commissioner were not “records” as defined by Right-to-Know law, announced Solicitor Kim Kesner at Tuesday’s commissioners’ meeting.
On July 28 Judge Michael H. Wojcik filed an opinion in which the Commonwealth Court affirmed Ammerman’s trial court decision in the case of Clearfield County versus Bigler Boyz Enviro Inc. and the Pennsylvania Office of Open Records. BBE had appealed Ammerman’s decision from Oct. 12, 2015, which had reversed the final determination of the OOR.
Ammerman held that the handwritten notes made by former Commissioner Joan Robinson-McMillen were not “records” as defined by Right-to-Know law. Her notes were made in April of 2015 from two, unsolicited telephone calls she’d received from private individuals regarding BBE’s request to replace Eagle Towing & Recovery Inc. of Milesburg as the county’s primary Hazardous Material Response Team (HAZMAT).
“Both Judge Ammerman and the Commonwealth Court ruled that her notes were not records under Right-to-Know law,” said Kesner, “And that, they are not required to be disclosed.”
The Pennsylvania Hazardous Materials Emergency Planning and Response Act requires each county to have a HAZMAT response team certified by the state’s Emergency Management Agency (PEMA). Under the act and PEMA regulations, a county may only have one primary HAZMAT response team, which must have an agreement with the county it serves.
Clearfield County had a three-year contract, dated June 7, 2013, with Eagle to be the primary response team. At an April 14, 2015 public meeting, BBE proposed that it replace Eagle, at which time the commissioners passed a motion to table consideration until their April 28, 2015 meeting.
Between those meetings, Robinson-McMillen received two calls at her county office regarding the matter. From them, she made handwritten notes that consisted of one page.
At the commissioners’ April 28, 2015 meeting, Robinson-McMillen asked if there was a motion in regards to the request previously made by BBE. There wasn’t any motion made and after receiving no discussion, she moved on to new business.
On April 29, 2015, BBE filed a Right-to-Know request with the county. It sought “all records, writings, documents and communications in the possession of Clearfield County Board of Commissioners regarding consideration of [BBE] as a HAZMAT vendor in Clearfield County.”
Each commissioner was asked to identify any records that fell within the request. Both Commissioner John A. Sobel and Mark B. McCracken replied that they didn’t have anything in response to the request.
Robinson-McMillen also advised that she didn’t have anything, except for one page of handwritten notes from unsolicited telephone calls from private individuals, which she made between April 14 and April 28 of 2015.
In response to the request, Right-to-Know Officer Marianne Sankey indicated that individual commissioners had received various contacts from individuals opposing BBE and or commending Eagle and or opposing the replacement of Eagle with BBE.
“The request for all ‘communications’ … exceeds the definition of a ‘record’ under [RTKL],” wrote Sankey. “… Inquiries, discussions, conversations, telephone conversations are exempt from public access.” Upon advice of counsel, access to Robinson-McMillen’s notes was denied. BBE appealed to the OOR.
The OOR defined a “record” as “information, regardless of physical form or characteristics, which documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of an agency.”
The OOR concluded that the commissioners’ decision not to take action on the request from BBE was an activity of the county. “Therefore, any records created, received or retained in connection with the failure to act on BBE’s proposal were records of the county.”
The OOR also rejected the county’s arguments that the records are exempt, as reflecting the internal pre-decisional deliberations between agency members or employees. The OOR granted the appeal and ordered the county to provide all records within 30 days.
The county appealed to the trial court, which conducted a hearing Aug. 24, 2015. During her testimony, Robinson-McMillen stated she had reviewed the request with Sankey, and they had considered the one page of “handwritten, incomplete sentences and scribblings” she made during two phone calls.
She testified that she didn’t want to disclose her notes because she believed her constituents expected and deserved confidentiality in expressing their opinions and being critical of replacing Eagle with BBE.
She also pointed out that Eagle was certified by PEMA and BBE was not, and that the county had a longstanding relationship with Eagle. She said these calls didn’t have any influence on her decision, which had already been made, and she didn’t share her notes with the other commissioners.
Robinson-McMillen referenced a pending lawsuit against the county that was filled by BBE. She also noted that BBE rejected the suggestion to become a secondary HAZMAT provider.
In his decision, Ammerman concluded that Robinson-McMillen’s notes didn’t document a transaction, business or official activity of the county, and that no relevant transaction, business or activity of the county occurred at the April 28, 2015 meeting.
He also concluded that the disclosure of the notes would violate public policy, as well as that they would fall under the “personal use” exemption of Right-to-Know law. He reversed the OOR’s final determination and dismissed BBE’s request for reconsideration.
However, BBE appealed, arguing that Ammerman erred in holding that the notes created by Robinson-McMillen do not document a transaction, business or activity of the county, and therefore were not public records for purposes of the Right-to-Know law.
Additionally, BBE argued that in creating the notes from the telephone calls, Robinson-McMillen was acting in her official capacity as county commissioner.
The Commonwealth Court affirmed Ammerman’s decision, stating: “We believe the county accurately characterizes the notes at issue as documenting citizen input, which was communicated to an individual commissioner who did not rely on the information to make a decision, who did not share the notes or their contents with other commissioners and who was not authorized to speak for or bind the county regarding a proposal that was never acted upon.
“Given these facts … we conclude that the notes in this instance are not ‘information … that documents a transaction or activity of an agency [that were] created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.’”
“… Because the notes do not document an agency transaction or activity, the trial court properly concluded that the notes do not fall within the Right-to-Know law’s definition of public record.”