Granted: Emails about requester's application for real estate license
April 13, 2009 Filed in: Granted
| Appealed to
court | Dept. of
State | Emails
| Predecisional
deliberations | Personal
security | Public
safety | Criminal
investigations
Granted: Unredacted emails
related to the requester's unsuccessful license
application to the Real Estate Commission. The
Department of State had denied access to the
emails, citing the predecisional deliberative,
personal security, public safety and criminal
investigative exceptions.
From
the Pennsylvania Freedom of Information
Coalition
Granted: Unredacted emails related to the requester's unsuccessful license application to the Real Estate Commission. The Department of State had denied access to the emails, citing the predecisional deliberative, personal security, public safety and criminal investigative exceptions.
The ruling consolidates two appeals relating to two requests submitted for emails of identified department employees from the date of an incident relating to the requester and his license application.
The department had provided emails from which certain information was redacted, but cited no legal grounds for doing so in its initial response to the request.
-- The Office of Open Records ruled that the predecisional deliberative exception did not apply in that the requester sought purely factual information, and that redaction was not appropriate. The OOR noted that email addresses of agency employees are not protected by the Right to Know Law. It also noted that the department failed to submit any facts to substantiate the content of any of the emails as deliberative in nature.
The OOR made a point of clarifying its position on the predecisional deliberative exception: "If a record is 'deliberative in character,' this protection is not lost at the time a decision is made; the protection remains in place if the records are shown to be deliberative."
But it noted the emails at issue were not deliberative in character.
-- The OOR ruled that the personal security exception did not protect the records from disclosure. The department had cited an incident where the requester verbally harassed an employee. But the OOR noted "verbal harassment does not rise to the level of substantial and demonstrable harm, and no specific harm is averred."
"Lacking facts to show that the release of the requested emails will result in substantial demonstrable harm, the Department cannot meet its burden of proof and does not establish the application of the personal security exception asserted here."
-- The OOR ruled that the public safety exception does not apply to the records sought. It noted: "The Department does not submit facts to show that the records at issue are maintained in connection with a public safety activity."
-- The OOR ruled that the criminal investigative exception does not protect the records sought. "The Department fails to show any relationship between the unredacted emails sought ... and a criminal investigation."
"The mere existence of a criminal complaint being filed about [the requester] is not sufficient to convert the emails and identities of witnesses named ... in [the] email to 'criminal investigative records," the OOR noted. "Otherwise, the mere filing of a criminal complaint about a person would insulate any and all records pertaining to that person regardless of the relationship of the records to the criminal investigation."
Shine vs. Department of State -- AP 2009-0083 and AP 2009-0105
APPEALED TO COMMONWEALTH COURT: May 12, 2009
Granted: Unredacted emails related to the requester's unsuccessful license application to the Real Estate Commission. The Department of State had denied access to the emails, citing the predecisional deliberative, personal security, public safety and criminal investigative exceptions.
The ruling consolidates two appeals relating to two requests submitted for emails of identified department employees from the date of an incident relating to the requester and his license application.
The department had provided emails from which certain information was redacted, but cited no legal grounds for doing so in its initial response to the request.
-- The Office of Open Records ruled that the predecisional deliberative exception did not apply in that the requester sought purely factual information, and that redaction was not appropriate. The OOR noted that email addresses of agency employees are not protected by the Right to Know Law. It also noted that the department failed to submit any facts to substantiate the content of any of the emails as deliberative in nature.
The OOR made a point of clarifying its position on the predecisional deliberative exception: "If a record is 'deliberative in character,' this protection is not lost at the time a decision is made; the protection remains in place if the records are shown to be deliberative."
But it noted the emails at issue were not deliberative in character.
-- The OOR ruled that the personal security exception did not protect the records from disclosure. The department had cited an incident where the requester verbally harassed an employee. But the OOR noted "verbal harassment does not rise to the level of substantial and demonstrable harm, and no specific harm is averred."
"Lacking facts to show that the release of the requested emails will result in substantial demonstrable harm, the Department cannot meet its burden of proof and does not establish the application of the personal security exception asserted here."
-- The OOR ruled that the public safety exception does not apply to the records sought. It noted: "The Department does not submit facts to show that the records at issue are maintained in connection with a public safety activity."
-- The OOR ruled that the criminal investigative exception does not protect the records sought. "The Department fails to show any relationship between the unredacted emails sought ... and a criminal investigation."
"The mere existence of a criminal complaint being filed about [the requester] is not sufficient to convert the emails and identities of witnesses named ... in [the] email to 'criminal investigative records," the OOR noted. "Otherwise, the mere filing of a criminal complaint about a person would insulate any and all records pertaining to that person regardless of the relationship of the records to the criminal investigation."
Shine vs. Department of State -- AP 2009-0083 and AP 2009-0105
APPEALED TO COMMONWEALTH COURT: May 12, 2009