FINAL DETERMINATION INTRODUCTION. Robert Kalinowski and The Citizens Voice (collectively Requester ) submitted a

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1 FINAL DETERMINATION IN THE MATTER OF ROBERT KALINOWSKI AND THE CITIZENS VOICE, Complainant v. Docket No. AP LUZERNE COUNTY, Respondent INTRODUCTION Robert Kalinowski and The Citizens Voice (collectively Requester ) submitted a request ( Request ) to Luzerne County ( County ) pursuant to the Right-to-Know Law, 65 P.S et seq., ( RTKL ), seeking financial records pertaining to the defense of a homicide suspect. The County denied the Request, arguing that the records are sealed by court order. The Requester then appealed to the Office of Open Records ( OOR ). For the reasons set forth in this Final Determination, the appeal is granted and the County is required to take further action as directed. FACTUAL BACKGROUND On January 28, 2014, the Request was filed, seeking payments made by the County to two defense attorneys and a defense investigator during murder suspect Hugo Selenski s criminal case. On February 4, 2014, the County invoked a thirty (30) day extension of time to respond to 1

2 the Request pursuant to 65 P.S On February 11, 2014, the County denied the Request, arguing that [t]he bills submitted for payment as well as, the payment authorizations have been ordered sealed by the Honorable Fred Pierantoni who is presently presiding over the case. On February 21, 2014, 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 County to notify any third parties of their ability to participate in this appeal pursuant to 65 P.S (c). On March 5, 2014, the County provided a position statement, along with the affidavits of Shannon Crake Lapsansky, Esq. Open Records Officer for the County, and Joan Hoggarth, Director of Judicial Services and Records. On March 17, 2014, the OOR directed the County to provide a copy of the court order sealing the requested records, along with any corresponding motions to seal, if they exist. On March 20, 2014, the County provided fifty-six (56) pages of court orders singed by Judge Pierantoni from the Hugo Selenski murder trial. 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 actions. Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff d 75 A.3d 453 (Pa. 2013). The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65 P.S (a). An appeals officer is required to review all information filed relating to the 2

3 request. 65 P.S (a)(2). An appeals officer may conduct a hearing to resolve an appeal. The decision to hold a hearing is discretionary and non-appealable. Id. 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. Here, neither party requested a hearing and the OOR has the necessary, requisite information and evidence before it to properly adjudicate the matter. The County is a local agency subject to the RTKL that is required to disclose public records. 65 P.S Records in possession of a local 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 An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S (b). Section 708 of the RTKL clearly 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 evidence. 65 P.S (a). 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 Ass n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011) (quoting Dep t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa. Commw. Ct. 2010)). The RTKL defines public record as [a] record, including a financial record, of a Commonwealth or local agency that (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or 3

4 (3) is not protected by a privilege. 65 P.S (emphasis added). Therefore, a record made confidential by court order is not a public record as a matter of law. Hinton v. Northumberland County, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS 925. In the present matter, Ms. Hoggarth attests that all records of payment [to the attorneys and the investigator] pertaining to the Hugo Selenski case have been sealed by Order of Court by the Honorable Judge Pierantoni. The OOR directed the County to provide a copy of the court order ordering the requested records sealed. In response, the County provided copies of fifty-six (56) court orders signed by Judge Pierantoni during the Hugo Selenski murder trial. When dealing with records that are alleged to have been sealed by court order, the OOR relies upon the actual wording of those court orders to determine what records are sealed. See Hinton, supra; Spatz v. City of Reading, OOR Dkt. AP , 2013 PA O.O.R.D. LEXIS 189. Here, the court orders notably do not state exactly which records have been sealed, referring only to the enclosed materials in the above-captioned case. Other than the County s conclusory affidavit that records documenting taxpayer payments have been sealed by the court, the court orders themselves do not support the County s argument that the requested records should be withheld. The County provides no evidentiary support linking the orders to the requested records. Additionally, there is no indication that the requested records were evidence in the underlying homicide trial. While Ms. Hoggarth attests that all records of payment have been sealed pursuant to court order, there is no evidentiary support in the record that supports this claim. At a minimum, a copy of a court order specifically stating that all records of payment have been sealed is required to verify the accuracy of this statement. This is especially true since the type of records at issue, i.e., financial records documenting taxpayer payments to defense counsel, are 4

5 inherently public. Financial records, including payments to lawyers, are presumed to be public records under the RTKL. See 65 P.S (c) (explaining that the majority of exceptions found under the RTKL do not apply to financial records). Without a copy of the court order specifically sealing the records at issue, the County has not met its burden of proving that the requested records are sealed pursuant to court order. As such, the OOR is constrained to hold that these records are subject to access. See Carey v. Pennsylvania Department of Corrections, 61 A.3d 367, 380 (Pa. Commw. Ct. 2013) ("[A]gencies must show the connection between the information and the grounds for protection"). CONCLUSION For the foregoing reasons, Requester s appeal is granted and the County is required to provide all responsive records to the Requester within thirty (30) days. This Final Determination is binding on all parties. Within thirty (30) days of the mailing date of this Final Determination, any party may appeal to the Luzerne County Court of Common Pleas. 65 P.S (a). All parties must be served with notice of the appeal. The OOR also shall be served notice and have an opportunity to respond according to court rules as per Section 1303 of the RTKL. This Final Determination shall be placed on the OOR website at http//openrecords.state.pa.us. FINAL DETERMINATION ISSUED AND MAILED March 31, 2014 APPEALS OFFICER KYLE APPLEGATE, ESQ. Sent to Robert Kalinowski (via only); Shannon Crake Lapsansky, Esq. (via only) 5

FINAL DETERMINATION. Docket No.: AP INTRODUCTION. Michael Buffer and The Citizens Voice (collectively Requester ) submitted a request

FINAL DETERMINATION. Docket No.: AP INTRODUCTION. Michael Buffer and The Citizens Voice (collectively Requester ) submitted a request FINAL DETERMINATION IN THE MATTER OF : : MICHAEL BUFFER AND THE : CITIZENS VOICE, : Complainant : : v. : : WEST SIDE CAREER AND : Docket No.: AP 2014-0423 TECHNOLOGY CENTER, : Respondent : INTRODUCTION