~...,. Southeastern Pennsylvania Transportation Authority

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1 (215) (215) (Fax) ~...,. Southeastern Pennsylvania Transportation Authority Legal Division 1234 Market Street, 5 th Floor Philadelphia, PA Direct Dial Number: By U.S. First Class Mail and Fax ( ) Audrey 1. BugIione Appeals Officer Pennsylvania Office of Open Records Commonwealth Ke~stone Building 400 North Street, 4 t Floor Harrisburg, PA Re: Iverson vs. SEPTA Docket #AP SEPTA Corporate Department File No This is in response to the letter dated October 14, 2010 from Terry Mutchler and yours of October 15, 2010 with respect to the OOR receipt of an appeal under the Pennsylvania Right-to-Know Law (RTKL) in the above-referenced matter. The following information is submitted in SEPTA's defense of this subject appeal. By way of general background, SEPTA is the owner of tracks of land and railroad right-of-way collectively known as Fox Chase/Newtown Branch, which it acquired from Consolidated Rail Corporation (through Reading Company) on May 3, The current Fox Chase Line (formerly known as the "R8 Fox Chase Line") operates from Cheltenham Junction to Fox Chase Station in Philadelphia. That portion ofthe original branch that runs north of Fox Chase Station through Montgomery County up to Newtown, Bucks County ("Newtown Branch") has been out-of-service since SEPTA discontinued passenger service thereon in On March 28, 2008 SEPTA entered into a lease agreement with Montgomery County whereby the County was granted the right to turn a 2.4 mile segment of the non-operating Newtown Branch running through Lorimar Park (in Abington Township) into an interim trail

2 Audrey L. Buglione October 25,2010 Page 2 ("Pennypack Trail") for recreational purposes such as bicycling, walking, jogging, etc. for use by the public, consistent with the guidelines for trail developing within Montgomery County. This lease of real property was duly presented to and approved by the SEPTA Board via resolution dated March 27, 200S I. By virtue thereof, SEPTA also retained and preserved the Newtown Branch as part of its rail transportation system for future railroad and/or public transit use consistent with the National Trail System Act, 16 U.S.c. 1247(d) and the Pennsylvania Rails to Trails Act. Other that than this particular lease for the Pennypack Trail with Montgomery County, no other leases or legal agreements of any kind have been entered by SEPTA with any third parties with respect to the Newtown Branch. Under the exceptions set forth in Sections 70S(b)(10) and (b)(22) of the RTKL, the following are considered exempt from access by a requester: (A) The internal, predecisional deliberations of any agency, its members, employees or officials... including predecisional deliberations relating to a... coarse of action or any research, memos or other documents used in the predecisional deliberations. (22)(i) The contents of real estate appraisals, engineering or feasibility estimates, environmental reviews, audits or evaluations made by any agency relative to the following: in real (A) The leasing, acquiring or disposing of real property or an interest property. (ii) This paragraph shall not apply once the decision is made to proceed with the lease, acquisition or disposal of real property or an interest in real property... Since there is clearly no evidence that any formal lease (or other legal) agreement has been reached or otherwise presented to the SEPTA Board for approval (which is required), at best anything that may have transpired prior thereto must be considered predecisional in nature. ISEPTA Board approval of such transactions is required by the Authority's enabling legislation, the Pennsylvania Public Transportation Law (at 74 Pa.S.c. I750(f)).

3 Audrey L. Buglione October 25,2010 Page 3 SEPTA certainly denies that any such meetings, discussions or negotiations have taken place regarding additional trail conversions of the Newtown Branch right-of-way. However, even if they did, beside being strictly predecisional they would nevertheless be tantamount to being part of an agency evaluation process in anticipation ofthe leasing of an interest in real property to a third party. As set forth in the cited exceptions, any records pertaining to these matters are not subject to RTKL production. In the event the legal grounds argued hereinabove are insufficient for purposes of denying the subject RTKL Request, it is alternatively submitted that no public records exist. Requester has made a general averment that "I have information in my possession that confirms that SEPTA and Montgomery County, and the Pennypack Ecological Restoration Trust ("PERT") have had discussions, meetings and have drafted documents for additional conversion of the Newtown- Fox Chase railroad line to a recreation trail/linerar [sic] park." More specifically, this cryptic generalization may well have been predicated upon the (clearly hearsay) statement allegedly made to him by an unidentified administrator for PERT that "Montgomery County, which apparently has negotiated an agreement to use the corridor northward from Lorimer Park up to Byberry Road for a trail" It is curious to note that the quote attributable to the PERT administrator refers only to Montgomery County, not SEPTA. I find it equally bizarre that Requester Iverson, supposedly armed with all this information on a potential additional Newtown Branch trail conversion, failed to identify any individual at SEPTA who may have been involved with the alleged negotiations. Without having knowledge or information of any specific SEPTA individual or even department, this Open Records Officer was forced to inquire of the logical managers whom would have to be involved. Not one of these managers had any knowledge whatsoever of SEPTA being approached by Montgomery County regarding any additional Newtown Branch trail conversion. In fact, none of these managers had even heard of, let alone had meetings with, PERT. In support thereof, attached hereto are Affidavits from Gerald Maier (Director of Real Estate), Jeffrey Knueppel, P.E. (Chief Engineer) and Nicholas J. Staffieri, Esquire (General Counsel), each certifying that their respective departments have no public records on this matter. Particular attention should be paid to the representations made by Messrs. Knueppel and Staffieri in their affidavits. Mr. Knueppel, as SEPTA's Chief Engineer, would have to approve any conversions of out-of-service railroad rights-of-way into recreational trails. As for General Counsel Staffieri, he would have to directly oversee, negotiate and approve any

4 Audrey L. Buglione October 25,2010 Page 4 lease (or other legal agreement) regarding a trail conversion. As you can clearly see, neither of these gentlemen have any knowledge of either meetings, discussions, negotiations or agreements with Montgomery County (or PERT) concerning the Newtown Branch. Lastly, it cannot be denied that no lease agreement has been presented to the SEPTA Board for approval. Based upon the foregoing, Mr. Iverson's requested records clearly fall within the exceptions to the RTKL. In the alternative, it should be found that no public records exist. Therefore, in either case, Mr. Iverson's RTKL request should be properly denied. CNP:lh Attachments c: Nicholas J. Staffieri, General Counsel (w/o Atts.) Paul Iverson (wi Atts.) Very truly yours, L~~' ~~ C. N 11 Petersen Depu y Counsel, Corporate I Open Records Officer

5 ~~J:2-- C. Neil tersen Deputy Counsel, Corporate Open Records Officer

6 AFFIDA VIT THAT PUBLIC RECORD IS NOT AVAILABLE OR DOES NOT EXIST I, Gerald Maier, am the Director of Real Estate for the Southeastern Pennsylvania Transportation Authority (SEPTA), and competent to make this certification and personally acquainted with the request for records, do certify under penalty of perjury that: a. The subj ect of the RTKL request is to obtain copies of all records regarding agreements, discussions or negotiations of all parties with SEPTA for the acquisition of, conversion or interim use of the Newtown Branch north of the existing Pennypack Trail (entered by lease to Montgomery County in March 2008). b. In the event SEPTA was involved in any negotiation whatsoever with respect to additional trail conversions of the out-of-service Newtown Branch with either Montgomery County or any other municipalities, I would customarily have had an intimate and active working knowledge thereof. c. In my role as Director of Real Estate, I am responsible for the preparation of all staff summaries that are presented to the SEPTA Board seeking its approval and authorization to enter into any agreements regarding the lease, easement, condemnation, purchase and sale of real property. As such, I have no records or knowledge of any negotiations regarding the trail conversion of any part of SEPTA's Newtown Branch other than the lease agreement with Montgomery County for the Pennypack Trail. d. Based upon the foregoing, SEPTA's Real Estate Department has no public records responsive to the subject RTKL request under the referenced docket number. Sworn to and subscribed before me this 02J"-f- day 0 October, 2010.,~)) fh- YJ-4~,. Gerald Maier s~i olenal Tina A Tn"i. Notary Pubiic City of Philadelphia, Philadelphia County My Commission Expii8S Dile. 26, 2011 Member, Pennsylvania Association of Notaries

7 AFFIDAVIT THAT PUBLIC RECORD IS NOT AVAILABLE OR DOES NOT EXIST I, Jeffrey D. Knueppel, am the Chief Engineer for the Southeastern Pennsylvania Transportation Authority (SEPTA), and competent to make this certification and personally acquainted with the request for records, do certify under penalty of perjury that: a. The subject of the RTKL request is to obtain copies of all records regarding agreements, discussions or negotiations of all parties with SEPTA for the acquisition of, conversion or interim use of the Newtown Branch north of the existing Pennypack Trail (entered by lease to Montgomery County in March 2008). b. In the event SEPTA was involved in any negotiation whatsoever with respect to additional trail conversions of the out-of-service Newtown Branch with either Montgomery County or any other municipalities, I would have had an intimate and active working knowledge thereof. c. In my role as Chief Engineer, I am responsible for overseeing the review and approval of all engineering/construction drawings, surveys, plans and scope of work regarding the lease/use of SEPTA's railroad rights-of-way by third parties, including, but not limited to recreational trail conversions. I have no records or knowledge of any negotiations regarding the trail conversion of any part of SEPTA's Newtown Branch other than the existing lease agreement with Montgomery County for the Pennypack Trail. d. Based upon the foregoing, SEPTA's Engineering, Maintenance and Construction Division has no records responsive to the subject RTKL request under the referenced docket number. _._.._-_._ ,.' HOTAIIM SIAL CRYIW OMONfR NOtCIfY Public iilladblhla aft PHIlADELPHIA COUNlY j MV C.$~'llon Explr Jon '~

8 AFFIDA VIT THAT PUBLIC RECORD IS NOT AVAILABLE OR DOES NOT EXIST I, Nicholas J. Staffieri, am the General Counsel for the Southeastern Pennsylvania Transportation Authority (SEPTA), am competent to make this certification, am personally acquainted with the request for records under the Right-to-Know Law (RTKL), and do certify under penalty of p-erjury that: a. In his RTKL request Mr. Iverson seeks to obtain copies of all records regarding agreements, discussions or negotiations of all parties with SEPTA for the acquisition of, conversion or interim use of the Newtown Branch north of the existing Pennypack Trail (entered by lease to Montgomery County in March 2008). b. In the event SEPTA was involved in any negotiation whatsoever with respect to additional trail conversions of the Newtown Branch, with either Montgomery County or any other municipalities, I would have known about the negotiations. c. In my role as General Counsel, I am responsible for overseeing the negotiation, drafting and approval of all legal agreements regarding the lease, easement, condemnation, purchase and sale of SEPTA's real property. As such, I have no records or knowledge of any negotiations regarding the trail conversion of any part ofthe Newtown Branch other than the existing lease agreement with Montgomery County for the Pennypack Trail. d. Based upon the foregoing, SEPTA's Legal Division has no public records responsive to the subject RTKL request under the referenced docket number. Nicholas J. Staffieri --- NOTARIAL SEAL CRYSTAL GARDNER Notary PUblJc PHILADELPHIA CIlY, PHILADELPHIA COUNTY My Comm'Ulon EXPIre. Jan 23, 20' 1

APPENDIX A STATEMENT OF COMPLAINT VIOLATIONS OF TITLE III OF THE HELP AMERICA VOTE ACT OF 2002 (PUBLIC LAW , 42 U.S.C ET SEQ.

APPENDIX A STATEMENT OF COMPLAINT VIOLATIONS OF TITLE III OF THE HELP AMERICA VOTE ACT OF 2002 (PUBLIC LAW 107-252, 42 U.S.C. 15301 ET SEQ.) COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE BUREAU OF COMMISSIONS,