This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
In a Final Determination entered on May 14, 2021, the OOR dismissed a RTKL Request for certain voter registration information because that information is expressly made available through the Pennsylvania Voter Registration Act; thus, its disclosure may not be sought under the RTKL. Michael Sheliga v. Pennsylvania Department of State, Dkt. No. AP 2021-0462 (May 14, 2021).
Background and Facts: On January 22, 2021, the Requester submitted a Request to the Pennsylvania Department of State (“Department”) for “[e]lectronic copies of voting data from [the] last election….including:
1. County data broken down by precinct….
2. Data for each type of voting location by day.
(a) How many people voted by mail each day (by county and/or precinct if such
(b) How many people voted Early In Person by day (by county and/or office/satellite office)…
3. Registration data for each precinct….
4. Any other election data that your data folks would have handy with similar stats.
Slip op. at 2. The Department extended its time to respond by thirty days on January 29, 2021. On March 1, 2021, the Department sought an additional extension. When the Requester did not grant that extension, the Request was deemed denied. The Requester appealed to OOR on March 8, 2021.
On March 26, 2021, the Department submitted a position statement with a supporting affidavit, stating that the information sought in items 2 and 3 of the Request are available through the Pennsylvania Voter Registration Act (“PVRA”) and the Department’s regulations relating to that Act. The Requester responded that “any offer to provide a ‘Full Voter Export’ does not meet [the] [R]equest” because it doesn’t include “precinct voting totals or precinct registration data.” The parties maintained these respective positions throughout the appeal. During the appeal proceedings, the Department stated that portions of responsive records are available through the Commonwealth’s open data portal, and provided the Requester with the URL to that portal. In turn, the Requester withdrew items 1 and 4 of his Request.
Analysis and Holding: In its Final Determination, OOR concluded that, by providing the URL to the open data portal, the Department provided some of the records requested in items 2(a) and 3 of the Request. It also found that the Department submitted an affidavit proving that there are no records responsive to item 2(b) of the Request, and that the Department’s affidavit was sufficient to sustain its burden of proof because the Requester did not provide competent evidence of bad faith on the Department’s part. See slip op. at 6.
With regard to item 3, OOR found that the “registration data for each precinct” that the Requester sought is available under the PVRA. It observed that Commonwealth Court held in Pennsylvanians for Union Reform v. Pennsylvania Dep’t of State, 138 A.3d 717 (Pa. Commw. 2016) that the PVRA and the related Department regulations “comprehensively govern” the accessibility of voter registration information. Slip op. at 7. Because the PVRA comprehensively governs accessibility of voter registration information, the RTKL’s access provisions are superseded and do not apply to this Request. Id.
Bottom Line: Sheliga reminds us that not all public information in the possession of Pennsylvania government agencies must, or indeed can, be requested pursuant to the RTKL. The Voter Registration Act has its own requirements for disclosure of voter registration information to citizens, and the those requirements must be used to obtain such information–not the requirements of the RKTL. Sheliga also notes that a government agency that has placed information on the Internet by creating a web portal or other website may answer a RTKL request for such information merely by providing the Requester with the URL for that website.