In Pa. Office of the Governor v. Brelje, 2024 Pa. Commw. LEXIS 65, at *1 (Commw. Ct. Feb. 23, 2024), the Office of Open Records (“OOR”) concluded that requests for all incoming and outgoing email for two agency employees over a 10- and 21-day period were sufficiently specific under Section 703 of the RTKL. However, when the OOR made this determination, it rejected the Governor’s Office’s argument that it should have the opportunity to “review and provide more detailed information regarding sufficient bases to withhold or redact privileged or exempt records.” In the OOR’s view, this was an impermissible attempt to bifurcate the appeal and contrary to the rule that the Governor’s Office was required to raise all arguments regarding privileged or exempt records during the appeal.

On appeal, the Commonwealth Court agreed that the requests were sufficiently specific but held that the OOR erred in declining the Governor’s Office’s request to review and provide more detailed information with respect to potentially privileged and exempt records. First, the Commonwealth Court noted that while the RTKL advances the public interest in promoting transparency, it also furthers the public interest in promoting public safety and security, as well as individual privacy, through its exemptions. In making this determination, the court cited Levy v. Senate of Pennsylvania, 619 Pa. 586, 65 A.3d 361, 382 (Pa. 2013), where the Pennsylvania Supreme Court reversed the Commonwealth Court’s strict waiver rule that held that if an agency does not give a reason why a document is exempt in its response letter to the requester, that exemption is waived.

Next, the Commonwealth Court noted that prior cases instructed the OOR to give agencies additional time to review records and raise exemptions in appropriate circumstances. In Pa. State Sys. of Higher Educ., Office of the Chancellor v. Ass’n of State College & Univ. Faculties, 142 A.3d 1023 (Pa. Cmwlth. 2016) (PASSHE), the Commonwealth Court held that if the request is so large that an agency does not have the ability to process the request in a timely manner given the enormous number of records requested, the OOR should grant additional time so that agencies have sufficient opportunity to conduct investigations to determine whether any exemptions from disclosure apply. The Pennsylvania Supreme Court cited PASSHE for the broad proposition that an “agency . . . may request an extension of time [before the OOR] in which to comply with an RTKL request.” McKelvey v. Pa. Dep’t of Health, 255 A.3d 385, 404 (Pa. 2021). In addition, the Commonwealth Court cited PASSHE when it observed that an agency’s “failure to review the responsive documents and provide details as to why they fall within this exception, or to request additional time to do so . . .  prevents a determination of whether a particular document involved was created during the course of a noncriminal investigation.” Pa. Pub. Util. Comm’n v. Friedman, 293 A.3d 803, 831 (Pa. Cmwlth. 2023). 

Finally, the Commonwealth Court noted that, in its submission to the OOR during the appeal, the Governor’s Office informed the OOR that among the potentially responsive emails there were certainly records relating to, inter alia, “military, law enforcement, and homeland security operations . . . including 911 recordings” and that disclosure would be “reasonably likely to jeopardize or threaten public safety or preparedness” and that there exists a “reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure.” 

Accordingly, with this background, the Commonwealth Court concluded that the Governor’s Office properly asked for additional time to identify records and conduct a legal review of exemptions as an alternative argument to its insufficient specificity position and that the OOR’s decision to deprive the Governor’s Office of the opportunity to cull the records and identify exemptions would thwart the General Assembly’s intent in enacting the RTKL to keep certain classes of records protected from public disclosure. Accordingly, it remanded the case to the OOR to allow the Governor’s Office reasonable additional time to identify responsive records and claim specific applicable exemptions.