Dunmore loses appeal in open-records case
October 02, 2009 | Filed in: Open
records | Dunmore
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Open Records | RTK request
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BY MEGAN REITER
The [Scranton] Times-Tribune
The state Office of Open Records has ruled a Dunmore councilwoman must turn over e-mail correspondence between herself and other council members regarding the former borough manager.
However, because Councilwoman Melanie Naro had previously destroyed those e-mails, "the records no longer exist and therefore cannot be provided," according to the final determination signed by attorney Dena Lefkowitz, an appeals officer with the Office of Open Records.
"If the record is gone, it's gone. We can't remake it," said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association. "It's not unheard of; it's not the first time it's happened."
Newspaper appeal
The office recently upheld an appeal filed by The Times-Tribune seeking the e-mails. The newspaper on Aug. 7 sent a Right to Know request to the borough, asking for any documentation or correspondence - including e-mails - between borough officials regarding former Borough Manager Joe Patchcoski, who was terminated in July.
Borough solicitor Thomas Cummings, Dunmore's open-records officer, responded to the e-mail portion of the request Aug. 14.
Mr. Cummings indicated Ms. Naro was the only council member who did not respond to the request through the borough. She did forward some e-mails directly to The Times-Tribune within the appropriate time frame. However, records provided by other council members contained e-mails written by Ms. Naro that she did not provide to the newspaper.
Thirty-day life
Ms. Naro wrote to the Office of Open Records on Sept. 3, saying the borough secretary informed her of the newspaper's request only one day before the deadline. She also told the office she routinely destroys e-mails after 30 days, and any e-mails she wrote regarding Mr. Patchcoski would were copied to both the former borough manager and Mr. Cummings.
In an affidavit he submitted to the Office of Open Records, Mr. Cummings said a search of the computer used by Mr. Patchcoski contained no e-mails between February and August.
In her own affidavit to the office, Ms. Naro said she was unaware e-mails pertaining to borough business but written on her personal computer were considered public documents under the Open Records Act.
Ms. Naro also stated she "did not withhold any record subject to disclosure nor did I intentionally destroy any record in my possession."
Barry Fox, deputy director of the Office of Open Records, said his office essentially determines whether or not the documents in question are public. Ms. Lefkowitz noted that in this case, "There is no argument that the records requested are not public, or that they are subject to any exemptions or exceptions in the RTKL."
Since the revised Right to Know Law went into effect Jan. 1, Mr. Fox said, his office has been dealing with more questions from public officials about retaining records, especially e-mails.
"Record management or the keeping of records is a pretty significant issue, we've found," he said.
Ms. Lefkowitz advised the borough "to determine the applicable requirements related to record retention and disposition and amend its policies accordingly."
Council members had been using personal e-mail addresses to communicate when The Times-Tribune submitted its Aug. 7 Right to Know request. Since then, Mr. Cummings said council and other Dunmore officials have received borough e-mail addresses and have been instructed not to destroy e-mails.
"I certainly think it's a step in the right direction," said Ms. Melewsky, though she called the destruction of public records "completely inappropriate."
The [Scranton] Times-Tribune
The state Office of Open Records has ruled a Dunmore councilwoman must turn over e-mail correspondence between herself and other council members regarding the former borough manager.
However, because Councilwoman Melanie Naro had previously destroyed those e-mails, "the records no longer exist and therefore cannot be provided," according to the final determination signed by attorney Dena Lefkowitz, an appeals officer with the Office of Open Records.
"If the record is gone, it's gone. We can't remake it," said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association. "It's not unheard of; it's not the first time it's happened."
Newspaper appeal
The office recently upheld an appeal filed by The Times-Tribune seeking the e-mails. The newspaper on Aug. 7 sent a Right to Know request to the borough, asking for any documentation or correspondence - including e-mails - between borough officials regarding former Borough Manager Joe Patchcoski, who was terminated in July.
Borough solicitor Thomas Cummings, Dunmore's open-records officer, responded to the e-mail portion of the request Aug. 14.
Mr. Cummings indicated Ms. Naro was the only council member who did not respond to the request through the borough. She did forward some e-mails directly to The Times-Tribune within the appropriate time frame. However, records provided by other council members contained e-mails written by Ms. Naro that she did not provide to the newspaper.
Thirty-day life
Ms. Naro wrote to the Office of Open Records on Sept. 3, saying the borough secretary informed her of the newspaper's request only one day before the deadline. She also told the office she routinely destroys e-mails after 30 days, and any e-mails she wrote regarding Mr. Patchcoski would were copied to both the former borough manager and Mr. Cummings.
In an affidavit he submitted to the Office of Open Records, Mr. Cummings said a search of the computer used by Mr. Patchcoski contained no e-mails between February and August.
In her own affidavit to the office, Ms. Naro said she was unaware e-mails pertaining to borough business but written on her personal computer were considered public documents under the Open Records Act.
Ms. Naro also stated she "did not withhold any record subject to disclosure nor did I intentionally destroy any record in my possession."
Barry Fox, deputy director of the Office of Open Records, said his office essentially determines whether or not the documents in question are public. Ms. Lefkowitz noted that in this case, "There is no argument that the records requested are not public, or that they are subject to any exemptions or exceptions in the RTKL."
Since the revised Right to Know Law went into effect Jan. 1, Mr. Fox said, his office has been dealing with more questions from public officials about retaining records, especially e-mails.
"Record management or the keeping of records is a pretty significant issue, we've found," he said.
Ms. Lefkowitz advised the borough "to determine the applicable requirements related to record retention and disposition and amend its policies accordingly."
Council members had been using personal e-mail addresses to communicate when The Times-Tribune submitted its Aug. 7 Right to Know request. Since then, Mr. Cummings said council and other Dunmore officials have received borough e-mail addresses and have been instructed not to destroy e-mails.
"I certainly think it's a step in the right direction," said Ms. Melewsky, though she called the destruction of public records "completely inappropriate."