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MARK M.

GILLEN, MEMBER 29 Yillage Center Drive, Suite A-7


LEGISLATIVE DISTRICT
128TH Reading, PA 19607
Phone: (610) 775-5130
PO Box 202128 Fax: (610) 775-3736
Harrisburg, PA 11 120-2128
Phone: (711)787-8550 Committees:
Fax: (7 17) 783-7862 Agriculture & Rural Affairs
p,nuw nI p,ryreNmtatifutx Education
Commonwealth of Pennsylvania Labor & Industry
E-mail : mgillen@pahousegop. com Veterans Affairs and
Harrisburg
www.RepGillen.com Emergency Preparedness

October 24,2017

Office of Open Records


Commonwealth Keystone Building
400 North St., 4th Floor
Harrisburg, P A l7 120-0225

RE: Appeal of Denial - PennDOT Right-to-Know Request No. I7-0772


To Whom It May Concern:

This appeal involves a request submitted to the Pennsylvania Department of


Transportation under the Right+o-Know Law (RTKL) for a copy of the Department,s
200g
Feasibility Study for Real ID (the Study). This record was previously requested
by Nicole
Brambila and the Reading Eagle newspaper; and the Office of open Records (ooR)
found for
the requester and ordered the release of the record. I submitted a request for
the same document
on October 5,2017 and the agency issued a denial of the request on October 13,2017.
I filed
this timely appeal.

In support of my argument that the Department of Transportation improperly denied


my
RTKL request, I submit the following:
*{.rF

As the OOR correctly pointed out in its final determination in Brambila v. pennsylvania
Department of Transportation (Docket No.: AP 2017-0374), an agency must
show: l) 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.

The OOR explained:

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
Office of Open Records
October 24,2017
Page 2.

gsnerally defined as "[t]he act ofcarefully considering issues and options before
making a decision or taking some action..." (citations omitted).

Because the Agency fails to establish that the record was internal to the agency and that
the record contained deliberation, the Agency cannot stablish that the record is subject to the
"predecisional deliberation" exception under Section 708(bXl O)(iXA).

a. Internal to the agency:


As it relates to the "internal" nature of the deliberations, it was correctly asserted by
Brambila that the Study (or at the very least, the content of the study) was shared with the
Legislature when voting for the related Senate Bill No. 354 inthe 2011 Legislative Session.
Given this limited set of facts, the OOR determined that the document retained its internal nature
even when it was shared with another agency (i.e. the legislature).

However, it cannot be credibly asserted that the document is internal when, as is the case
here,the contents of the record are disclosed to the public.

The Agency shared the contents of the 2008 Feasibility Study with the Appropriations
Committees of the Pennsylvania House of Representatives and the Senate of Pennsylvania for
the purpose of preparing a Fiscal Note on the subject bill. Fiscal Notes prepared by the
Appropriations Committees fall within the meaning of a "legislative record" pursuant to the
RTKL and must be disclosed upon request. See 65 P.S. $ 67.102. The House and Senate Fiscal
notes, prepared in consultation with the Department of Transportation and utilizing the Study,
are available on the Pennsylvania General Assembly website at the following web address:

tvpe:B&bn:354

For the convenience of the OOR, copies of the House and Senate Fiscal Notes are
included in this appeal. The Fiscal Notes clearly indicate communication between the
Department and the Committees. At the time of the communication, the Department staff most
certainly understood that the records provided to the Committees would be incorporated into the
Committee work product and such Fiscal Notes would be made available to the public.

b. Deliberative Content:

For purposes of this appeal, it is a given that the Study was prepared prior to a decision
(i.e. during the deliberative process). According to the Department:

[T]he 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.
Office of Open Records
October 24,2017
Page 3.

Yet, the OOR's in camera review of the Study showed that the document contained no
deliberations whatsoever. The Final Determination of the OOR found:

[T]he 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. (emphasis added).

The purpose of the "predecisional deliberation" was explained in2014 by our


Commonwealth Court in McGowan v. Pennsylvania Department of Environmental Protection.
Judge McCullough, writing for the Court, said:

The deliberative process privilege benefits the public and not the officials who
assert the privilege. The privilege recognizes that if govemmental agencies were
forced to operate in a fishbowl, the frank exchange of ideas and opinions would
cease and the quality of administrative decisions would consequently suffer." Joe
v. Prison Health Services, lnc.,782 A.2d24,33 (Pa.Cmwlth.200l).

l\/Tnl1n.tran tt Penns o T)enh nf Fnrrfl Prnf at 381

In McGowan, the court remanded the proceedings to the OOR to determine whether
certain records "contain purely factual material." Id. at 387. To the extent that "factual material
exists. . . fwhich would not] expose the deliberative process within an agency" the exception
does not apply and agency must disclose the contents of the record. Id. at 388.

In the instant case, the Study contains no "exchange ideas and opinions" (and is, in fact
devoid of "deliberation"). As such, releasing the Study cannot be said to force the Agency to
operate "in a fishbowl." This holds especially true when the contents of the record have already
been shared with the public in Fiscal Notes (which must be released under the RTKL upon
request) prepared by the House and Senate Appropriations Committees.

rf. rF rF

The Agency clings to the notion that the Study is protected from disclosure simply
because they assert that it was "used in the predecisional deliberations" of the agency. See 65
P.S. $ 67,708 (bXl0XiXA). As explained above, the exception from disclosure does not sweep
as broadly as the Agency would suggest. To adopt such a view would frustrate the purpose of
the RTKL. As articulated in the OOR's final determination cited above:
Office of Open Records
October 24,2017
Page 4.

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 A3d7029,7047 (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 actions." Bowling v. Office of Open Records ,990 A.2d
873,824 (Pa. Commw. Ct.2070), affd 75 A.3d 453 (Pa. 2013).

For these reasons, I believe that the Agency denial is in error. The study does not fall
within the "predecisional deliberation" exception in the RTKL and it must be disclosed upon
request.

Respectfully submitted,

?rr.4 4h, z4rlA


Mark Gillen, State Representative
128th Legislative District

MMG:mdc

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