FINAL DETERMINATION

IN THE MATTER OF :
:
NICOLE BRAMBILA AND READING :
EAGLE, :
Requester :
:
v. : Docket No: AP 2017-0374
:
PENNSYLVANIA DEPARTMENT OF :
TRANSPORTATION, :
Respondent :

INTRODUCTION

Nicole Brambila (Requester), a reporter with the Reading Eagle, submitted a request

(Request) to the Pennsylvania Department of Transportation (Department) pursuant to the

Right-to-Know Law (RTKL), 65 P.S. 67.101 et seq., seeking a 2008 feasibility study

related to REAL ID in Pennsylvania. The Department partially denied the Request, stating that

the study reflects the Departments internal, predecisional deliberations. The Requester appealed

to the Office of Open Records (OOR). For the reasons set forth in this Final Determination,

the appeal is granted, and the Department is required to further action as directed.

FACTUAL BACKGROUND

On January 10, 2017, the Request was filed seeking copies of the 2008 feasibility study

conducted by [the Department] looking at the impact of implementing REAL ID in

1
Pennsylvania. On January 18, 2017,1 the Department invoked a thirty day extension during

which to respond. See 65 P.S. 67.902. On February 15, 2017, the Department directed the

Requester to the General Assemblys website that provides the estimated costs to implement the

REAL ID. The Department denied access to the feasibility study (Study) because it reflects the

internal, predecisional deliberations of the Department. See 65 P.S. 67.708(b)(10)(i)(A).

On February 24, 2017, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure. The OOR invited both parties to supplement the record and

directed the Department to notify any third parties of their ability to participate in this appeal.

See 65 P.S. 67.1101(c).

On March 8, 2017, the Department submitted a position statement reiterating its grounds

for denial. In support of its position, the Department submitted a sworn affidavit from Kurt

Myers, Deputy Secretary for Driver and Vehicle Services with the Department.

On April 3, 2017, the Department submitted the Study and two draft versions of the

Study for in camera review to the OOR.2 The Requester agreed to allow the OOR until May 17,

2017 to issue a Final Determination in this matter. See 65 P.S. 67.1101(b)(1).

LEGAL ANALYSIS

The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government. SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is

designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

1
The Departments offices were closed on January 16, 2017 in observance of Martin Luther King, Jr. Day. As such,
the Departments extension notice was timely issued.
2
The privilege log and records submitted for in camera review included two draft versions of the Study; however,
the Requester clarified on April 26, 2017 that she is only seeking the final version of the Study.

2
actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), affd

75 A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. 67.503(a). An appeals officer is required to review all information filed relating to the

request and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. 67.1102(a)(2). An appeals officer may conduct a

hearing to resolve an appeal. The law also states that an appeals officer may admit into evidence

testimony, evidence and documents that the appeals officer believes to be reasonably probative

and relevant to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-

appealable. Id.; Giurintano v. Pa. Dept of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct.

2011). Here, the parties did not request a hearing; however, the OOR has the requisite

information and evidence before it to properly adjudicate the matter.

The Department is a Commonwealth agency subject to the RTKL that is required to

disclose public records. 65 P.S. 67.301. Records in possession of a Commonwealth agency

are presumed public unless exempt under the RTKL or other law or protected by a privilege,

judicial order or decree. See 65 P.S. 67.305. Upon receipt of a request, an agency is required

to assess whether a record requested is within its possession, custody or control and respond

within five business days. 65 P.S. 67.901. An agency bears the burden of proving the

applicability of any cited exemptions. See 65 P.S. 67.708(b).

Section 708 of the RTKL places the burden of proof on the public body to demonstrate

that a record is exempt. In pertinent part, Section 708(a) states: (1) The burden of proving that a

record of a Commonwealth agency or local agency is exempt from public access shall be on the

Commonwealth agency or local agency receiving a request by a preponderance of the

3
evidence. 65 P.S. 67.708(a)(1). Preponderance of the evidence has been defined as such

proof as leads the fact-finder to find that the existence of a contested fact is more probable

than its nonexistence. Pa. State Troopers Assn v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.

2011) (quoting Pa. Dept of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821,

827 (Pa. Commw. Ct. 2010)).

The Department claims that the Study reflects the Departments internal, predecisional

deliberations. Section 708(b)(10)(i)(A) of the RTKL exempts from public disclosure a record

that reflects:

[t]he internal, predecisional deliberations of an agency, its members, employees

or officials or predecisional deliberations between agency members, employees or
officials and members, employees or officials of another agency, including
predecisional deliberations relating to a budget recommendation, ... or course of
action or any research, memos or other documents used in the predecisional
deliberations.

65 P.S. 67.708(b)(10)(i)(A). To withhold a record under Section 708(b)(10)(i)(A), an agency

must show: 1) the deliberations reflected are internal to the agency, including representatives; 2)

the deliberations reflected are predecisional, i.e., before a decision on an action; and 3) the

contents are deliberative in character, i.e., pertaining to a proposed action. See Kaplin v. Lower

Merion Twp., 19 A.3d 1209, 1214 (Pa. Commw. Ct. 2011). To establish that records are

deliberative, an agency must show that the information relates to the deliberation of a particular

decision. McGowan v. Pa. Dep't of Envtl. Prot., 103 A.3d 374, 378-88 (Pa. Commw. Ct. 2014).

The term deliberation is generally defined as [t]he act of carefully considering issues and

options before making a decision or taking some action BLACKS LAW DICTIONARY 492 (9th

ed. 2009); see also Heintzelman v. Pa. Dep't of Cmty. & Econ. Dev., OOR Dkt. AP 2014-0061,

2014 PA O.O.R.D. LEXIS 254, aff'd No. 512 C.D. 2014, 2014 Pa. Commw. Unpub. LEXIS 644

(Pa. Commw. Ct. 2014).

4
 Mr. Myers attests that the Study was created by Department employees and distributed

among Department personnel during the drafting stage and later with personnel of the

Governors Office. The Requester argues that the Study was shared with the Legislature when

voting for the related Senate Bill No. 354, and, therefore, cannot be internal to the Department.

Notwithstanding the Requesters argument, a document remains internal even if it is shared

with another agency. 65 P.S. 67.708(b)(10)(i)(A). The RTKL defines agency as [a]

Commonwealth agency, local agency, judicial agency or legislative agency. 65 P.S. 67.102.

Here, the Study is internal under Section 708(b)(10)(i)(A) because it was shared between

employees of entities that are defined as agencies under the RTKL. Kaplin, 19 A.3d 1209;

Vitali v. Pa. Office of the Governor, OOR Dkt. AP 2014-0903, 2014 PA O.O.R.D LEXIS 1112 .

To establish that records are deliberative, an agency must show that the information

relates to the deliberation of a particular decision. McGowan, 103 A.3d at 378-88. The term

deliberation is generally defined as [t]he act of carefully considering issues and options

before making a decision or taking some action.... BLACKS LAW DICTIONARY 492 (9th ed.

2009); see also Heintzelman, OOR Dkt. AP 2014-0061, 2014 PA O.O.R.D. LEXIS 254. In order

for a record to be deliberative in character, it must make recommendations or express opinions

on legal or policy matters and not be purely factual in nature. Furthermore, an agency must

submit evidence of specific facts showing how the information relates to a deliberation of a

particular decision. Carey v. Pa. Dept of Corr., 61 A.3d 367, 379 (Pa. Commw. Ct. 2013). In

McGowan, the Pennsylvania Department of Environmental Protection (DEP) submitted

affidavits detailing the withheld information related to the DEPs internal deliberations,

including draft documents to contemplate a future course of agency action. 103 A.3d 374.

5
 Here, Mr. Myers attests that the Study was prepared prior to a decision during the

deliberative process. He attests that the Study examines multiple options and contemplates the

best course of action regarding the impact of adopting the federal REAL ID regulations. The

Study was used to weigh options and what course of action to take regarding the federal REAL

ID regulations. While the Study may have been used to consider options regarding the

implementation of REAL ID, the OOR has conducted an in camera review of the Study, and

those deliberations are not contained within the Study. Rather, the Study contains the underlying

factual bases for the deliberations, but not the deliberations themselves. Therefore, the

information contained in the Study is not deliberative in character. Further, there are no opinions

or recommendations contained within the Study, rather it is factual data related to the available

options to pursue. Based on the evidence provided and the OORs in camera review, the

Department has not met its burden of proving that the Study is exempt from disclosure. See 65

P.S. 67.708(a)(1).

CONCLUSION

For the foregoing reasons, Requesters appeal is granted, and the Department is required

to provide a copy of the Study within thirty days. This Final Determination is binding on all

parties. Within thirty days of the mailing date of this Final Determination, any party may appeal

to the Commonwealth Court. 65 P.S. 67.1301(a). All parties must be served with notice of the

appeal. The OOR also shall be served notice and have an opportunity to respond as per Section

1303 of the RTKL. However, as the quasi-judicial tribunal adjudicating this matter, the OOR is

not a proper party to any appeal and should not be named as a party.3 This Final Determination

shall be placed on the OOR website at: http://openrecords.pa.gov.

3
See Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).

6
FINAL DETERMINATION ISSUED AND MAILED: May 15, 2017

/s/ Jill S. Wolfe

_________________________
APPEALS OFFICER
JILL S. WOLFE, ESQ.

Sent to: Nicole Brambila (via e-mail only);

Jeffrey Spotts, Esq. (via e-mail only);
Ellen Sheffey (via e-mail only)

7
MARK M. GILLEN, MEMBER 29 Yillage Center Drive, Suite A-7
LEGISLATIVE DISTRICT
128TH Reading, PA19601
Phone: (610) 775-5130
PO Box 202128 Fax: (610) 775-3736
Hanisburg, PA 17 120-2128
Phone: (717)787-8550 Committees:
Fax: (717)783-1862 Agriculture & Rural Affairs
pnnw ilpnyrexmtahfrw Education
Labor & Industry
Commonwealth of Pennsylvania
E-mail : mgillen@pahousegop.com Veterans Affairs and
Hanisburg
www.RepGillen.com Emergency Preparedness

October 5,2OI7

PennDOT Open Records Officer

Bureau of Office Services
Pennsylvania Department of Transportation
400 North Street
PO Box 3451
Ha rrisburg, Pennsylvani a 17 1O5-345L

Dear Agency Open Records Officer:

Pursuant to the Right-to-Know Law, I request a copy of the 2008 Feasibility Study related to REAL lD that
was commissioned by PennDOT. I realize that this request has been made previously, and that the
request was denied by PennDOT's Open Records Officer.

As you know, the requester in the above-mentioned denial appealed the denial to the Pennsylvania
Office of Open Records. The Office held as follows:

The Department claims thot the Study reflects the Department's internol, predecisionol
deliberations. Section 708(b)(10)(i)(A) of the RTKL exempts from public disclosure a
record thot reflects:

[t]he internol, predecisionol deliberotions of on ogency, its members, employees

or officials or predecisional deliberations between agency members, employees
or officiols and members, employees or officials of another agency, including
predecisionol deliberatians relating to o budget recommendotion, ... or course of
oction or any reseorch, memos or other documents used in the predecisional
deliberotions.

65 P.s. g 67.708(b)(10)(i)(A). To withhold o record under Section 708(b)(10)(i)(A), an

ogency must show: 7) the deliberotions reflected ore internolto the ogency, including
representotives; 2) the deliberotions reflected are predecisional, i.e., before a decision on
an action; and 3)the contents ore deliberative in chorocter, i.e., pertaining to d proposed
action. See Kaplin v. Lower Merion Twp.. 79 A.3d 7209, 7274 (Po. Commw. Ct.2077). To
estoblish thot records ore deliberotive, an ogency must show that the informotion
relates to the deliberotion of o porticulor decision. McGowan v. Pa. Dep't of Envtl. Prot..
Agency Open Records Officer
October 5,2OL7
Page 2

103 A.3d 374,378-88 (Pa. Commw. Ct.2014). The term "deliberation" is generolly
defined os "[t]he act of corefully considering issues ond options before making a decision
or taking some oction...' BLACKS LAW DICTIONARY 492 (9th ed. 2009); see also
Heintzelman v. Pa. Dep't of Cmtv. & Econ. Dev.. OOR Dkt. AP 2074-0067, 2074 PA
O.O.R.D. LEXTS 254, aff'd No. 572 C.D. 2074, 2074 Po. Commw. Unpub. LEXIS 644 (Po.
Commw. Ct.2014).

***

While the Study may have been used to consider options regarding the implementation
of REAL lD, the OOR has conducted on in camero review of the Study, and those
deliberations are not contoined within the Study. Rother, the Study contains the
underlying factual boses(sic) for the deliberations, but not the deliberotions themselves.
Therefore, the information contained in the Study is not deliberotive in charocter.
Further, there are no opinions or recommendations contoined within the Study, rather
it is loctual ddta reloted to the available options to pursue. Based on the evidence
provided and the OOR's in comero review, the Department has not met its burden of
proving thot the Study is exempt from disclosure. See 65 P.S. 5 67.708(a)(l).

OOR FinalDetermination, AP 2077-0374, Moy 75,2077 (emphasis added).

The appeal was subsequently withdrawn (after the Department appealed to Commonwealth Court), and
the record was never made available for public view. By this correspondence, and consistent with the
considered judgment of the Office of Open Records, I request the 2008 Feasibility Study for REAL lD be
made available to me.

Should the Department continue to find that the feasibility study in question is not a "public record" as
defined in the RTKL, I urge the Department exercise its discretion to release the document under Section
506(c) of the RTKL. As you know, this subsection provides as follows:

An ogency moy exercise its discretion to make ony otherwise exempt record accessible
for inspection and copying under this chapter, if ail of the following apply:

(7) Disclosure of the record is not prohibited under ony of the following:

(i) Federol or Stote low or regulotion.

(ii) Judiciol order or decree.
Agency Open Records Officer
October 5,2OL7
Page 3

(2) The record is not protected by o privilege

(3) The agency head determines that the public interest favoring occess
outweighs any individual, agency or public interest that may fovor restriction
of occess.

Section 506 of the Act of Feb. t4,2OO8 (P.1. 6, No. 3)

Having read through the request and the OOR's final determination, I saw nothing to indicate that the
release of the record is prohibited by "federol or Stote law or regulotion," or by "Judiciol order or
decree." Further, the record (if not a public record)would not be "protected by a privilege." Finally, the
"public interest favoring access" plainly outweighs any interest "that moy favor restriction of access."

The in comera review of the study by the OOR showed that the record was devoid of opinions or
recommendations that would imbue it with the protections of a document protected by the pre-
decisional deliberation exception in Section 708. ln fact, the OOR stated that their review of the record
showed that it contained only "factuol dato related to the available options to pursue." The only
justification I have seen so far for keeping such a record from public view is that the document is nearly
a decade old and its applicability is "inconsequential at best." The reasons weighing in favor of access
are found in the underpinnings of the RTKL itself. As articulated in the OOR's final determination cited
above:

"The objective of the Right to Know Law ... is to empower citizens by affording them
occesstoinformotionconcerningtheoctivitiesoftheirgovernment.,,@-tE.
v. wintermanleL 45 A.3d 7029,7047 (Pa. 2012). Further, this importont open-
government low is "designed to promote access to official government information in
order to prohibit secrets, scrutinize the octions of public officiols and moke public
officiols accountable for their ocfions." Bowlins v. Office of Open Records, 990 A.2d 873,
824 (Pa. Commw. Ct.2070), off'd 75 A.3d 453 (Pa. 2013).

ln a very real sense, providing this information dispels any misapprehension that the public has
concerning the Departments early efforts to quantify the impact of the federal REAL lD requirements.
There is no need for this continued secrecy, particularly when portions of the feasibility study have been
provided to the House and Senate Appropriations Committees previously.

I urge you to grant this request as the 2008 Feasibility Study and release this "public record." lf you find
continued adherence to the notion that such studies fall within the ambit of Section 708(b)'s exceptions
from disclosure, the Department should nonetheless release this particular document because the
public interest in releasing it outweighs the agency's interest in keeping the record secret.
Agency Open Records Officer
October 5,2OL7
Page 4

You may provide the responsive records to Representative Mark M. Gillen, PO Box 202128, Harrisburg,
Pennsylvania 77t2O-2728; Room 408 lrvis Office Building or mgillen@pahousegop.com. Questions
about this request can be directed to me at7L7-787-855O.

Best Regards,

?rr.,a Q*z4^^
Mark M. Gillen
State Representative
128th Legislative District

MMG:mdc
os-2c (10-1s) ocl r 6 llfi
pennsylvania
DEPARTMENT OF TRANSPORTATION
www.penndot.gov

Mailing Date: October 13,2017

The Honorable Mark M. Gillen

128h Legislative District
PO Box 202128
Harrisburg, P A I7 120-2128

Re: Right-to-Know Law Request No. 17-0772

Dear Representative Gillen:

This letter acknowledges receipt by the Pennsylvania Department of Transportation ("PennDOT")

of your written correspondence, which is being processed under the Pennsylvania Right-to-Know Law
(*RTKL"),65 P.S. $ 67.101 et seq. PennDOT's Office of Open Records logged your correspondence as
received on October 5,2017. Due to the closure of Commonwealth Offices for Columbus Day on October
g,2017,this letter is being timely mailed on the fifth business day following receipt of your correspondence.
A copy ofyour correspondence is enclosed.

You requested "a copy of the 2008 Feasibility Study related to Real ID that was commissioned by
PennDOT."

Your request is denied. PennDOT is in possession of a document referencing various options

related to the implementation of REAL ID. The RTKL provides the following is exempt from access:

A record that reflects the internal, predecisional deliberations of an agency,

its...employees or officials or predecisional deliberations between agency members,
employees or officials and members, employees or officials of another agency, including
predecisional deliberations relativerelating to a budget recommendation, legislative
proposal, legislative amendment, contemplated or proposed policy or course of action or
any research, memos or other documents used in the predecisional deliberations from
disclosure.

65 P.S. $ 67.708(bX1OXD(A). Consequently, your request for the 2008 feasibility study is denied.

You have a right to appeal this response in writing to the Executive Director, Office of Open
Records (OOR), Commonwealth Keystone Building, 400 North Street, 4ft Floor, Harrisburg, Pennsylvania
I7I20.If you choose to file an appeal you must do so within fifteen (15) business days of the mailing date
of this response and send to the OOR:

1) this response;
2) your request; and
3) the reason why you think the agency is incorrect in its response

Bureau of Office Services

400 North Street - 5th Floor I Harrisburg, PA L7L2O | 717.787.4050 | www.penndot.gov
Additionally, the OOR has an appeal form available on the OOR website at:

http ://www. openrecords.pa. gov/Appeals/AppealForm. cfm

Please be advised that this correspondence will serye to close your RTKL request with our office
as permitted by law.

Sincerely,

d^N
W. Gipe
Acting Agency Open Records Officer
PENN DOT-Ri ghtToKnow@Fa. gov