This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
The OOR issued a Final Determination recently, holding that a Request seeking election-related data does not necessarily need to state a time period from which records are being requested in order for the request to be sufficiently specific under Section 703 of the RTKL. Abby Pakutz v. Montgomery County, Dkt. No. AP 2021-0060 (Feb. 5, 2021).
Background and Facts: The requester submitted a request to Montgomery County (“the County”) on November 20, 2020, seeking the following categories of records:
“[1.] A copy of all contracts with individuals, organizations, corporations, or any
other legal entities that provide access to election data, voting records, poll books,
and any other similar elector information. (“Item 1″)
[2.] Also, a copy of any electronic security camera footage of the canvas[s]ing and
pre-canvas[s]ing process and the securing of absentee and mail-in ballot envelopes
prior to canvas[s]ing and pre-canvas[s]ing.” (“Item 2”) (Slip op. at 1).
The Request was deemed denied on December 28, 2020, because the County failed to respond to the Request after a 30-day extension. The County submitted an untimely response to the Request on December 29, 2020, which included a copy of its February 6, 2019 contract with Dominion Voting Systems, Inc. The Requester appealed the denial on January 8, 2021, and the County responded on January 11, 2021 with a copy of its December 29, 2020 response, along with other responsive records. The County contended that it had responded to Item 1 of the Request and that Item 2 is insufficiently specific, and thus need not be answered under RTKL Section 703.
Analysis and Holding: The Requester did not dispute the County’s position that its response to Item 1 was sufficient, so the appeal was held to be moot as to that item. For that reason, the Final Determination focuses upon the specificity challenge with regard to Item 2.
OOR begins its analysis by observing that Pennsylvania courts have construed Section 703 as relying upon the common meaning of words and phrases, because RTKL is remedial litigation that must be interpreted so as to maximize citizen access to agency information. Commonwealth Court has employed a three-part test of specificity in construing Section 703. It looks to see to what extent the request sets forth:
“(1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought.”
Slip op. at 5 (citing Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121, 1124-25 (Pa. Commw. 2015).
The Pittsburgh Post-Gazette decision found that the “subject matter” of a request must identify “the ‘transaction or activity’ of the agency for which the record is sought. Pittsburgh Post-Gazette, 119 A.3d at 1125. In addition, Commonwealth Court precedent has found it sufficient for a requester to seek all records relating to a specific project, provided that the request is limited to particular types of records, and identifies a finite period of time for which records are being sought. Slip op. at 5.
Item 2 of the Pakutz Request identifies a particular type of record, namely electronic security camera footage. The Request also specifies the subject matter of the requested records, namely, the canvassing and pre-canvassing and securing of absentee and mail-in ballot envelopes. But Item 2 does not explicitly provide a particular timeframe for the records sought, and the County took the position that this failure was fatal.
OOR disagreed. It noted that Commonwealth Court has held that a request’s specificity must be construed in the context of the request. Slip op. at 6 (quoting Montgomery County v. Iverson, 50 A. 3d 281, 284 (Pa. Commw. 2012). OOR itself previously construed a request as sufficiently specifying a timeframe “where the subject or scope of the request implies a necessary period of time.” Id. (citing Nello Construction v. Greater Latrobe School District, OOR Dkt. AP 2019-0988, 2019 PA O.O.R.D. LEXIS 984 (OOR Sept. 3, 2019)).
OOR noted that the County’s responses to Item 1 are based upon an inference that the its current contract with Dominion Voting Systems, i.e., the contract in effect during the most recent election, was responsive. That inference establishes a timeframe for the Request, which OOR concluded should apply to Item 2 as well.
Moreover, OOR found that the references in the request to “pre-canvassing” and “mail-in ballots” necessarily indicate that the Request refers to the 2020 general election, because security issues relating to mail-in ballots were a “well-known and well-publicized concern.” Slip op. at 6. Consequently, OOR ordered the County to produce security camera video footage from the 2020 general election as identified in Item 2.
Bottom Line: By holding that the courts do not ignore the context of events applicable to a particular request, OOR reminded the parties that it will not ignore the spirit of the RTKL by demanding literal compliance with the timeframe requirement when circumstances show that the agency was well aware of the timeframe for the information being requested. Hopefully OOR will continue to construe election cases under this standard.