A recent decision by the Office of Open Records is notable for requiring disclosure of text messages among school board members sent during a school board meeting. In Hassler v. Tulpehocken Area School District, OOR Dkt. No. AP 2019-0455 (July 18, 2019), the Appeals Officer explained that whether the text exchange related to an agenda item at the meeting was not the determining factor in deciding whether the text messages needed to be disclosed.
The school board denied the request under the RTKL for text messages and emails sent among board members during a board meeting. Aspects of the appeal included extensions of time and supplemental submissions. As part of the appeal process, the Appeals Officer conducted an in camera review of the disputed documents, and explained the reasons why some communications needed to be produced and why some were covered by exceptions to the disclosure requirements of the RTKL.
Key Points in Decision’s Legal Analysis
- After reciting the doctrinal underpinning of the RTKL and its objective, the decision recited the statutory basis for the presumption that the District’s public records are subject to public access, unless specified exemptions apply. Op. at 2-3.
- Section 708(a) places the burden of proof on the public body to establish that a particular exemption applies.
- In response to the District’s position that the documents requested were not “public records”, the Appeals Officer described the two-part test used to determine if a document or other material is a public record:
(i) does the material evidence a “transaction, or activity of an agency”? and if so,
(ii) was it “created, received or retained…in connection with a “transaction, business or activity of an agency?” Allegheny County v. A Second Chance, Inc., 13 A.3d 1025, 1035-35 (Pa. Commw. Ct. 2011). The definition of “record” is liberally construed. Id.
- The key exchange of texts required to be produced was between an District administrator and a Superintendent, and related to whether someone was recording the board meeting. The OOR explained that it was not necessary for the communication to be an “agenda item” in order for the RTKL to require production as a public record. Op. at 5.
- The District’s arguments that those “non-agenda” communications were exempt under Section 708(b)(12) was rejected. That exemption would apply to documents that “have no official purpose”–but the District did not provide sufficient evidence to support this argument.
- Identifying each document reviewed in camera by Bates Number affixed to each document, the Appeals Officers reasoned that some texts and emails in dispute discussed food and personal photos as well as other communications that did not relate to District business.
- The District wrongly argued that some communications were exempt information under Section 708(1)(ii) and (b)(2) because they allegedly involved a safety incident with a student and “would be reasonably likely to result in demonstrable risk of physical harm to the personal security of an individual” or would be reasonably likely to jeopardize public safety. Op. at 6. The Appeals Officers reasoned that the District offered mere conjecture without support for their position on this point.
- Computer passwords and login information are exempt under Section 708(b)(4). See Op. at 7.