DEP database records ordered disclosed


Department of Environmental Protection v. Cole
Commonwealth Court
No. 2035 C.D. 2011

September 12, 2012

The Commonwealth Court affirmed an order of the Office of Open Records (“OOR”) compelling the Department of Environmental Protection to disclose information from one of its databases.

In affirming the order, the Court held that (1) retrieving information from a database is not the same as creating a new record; and (2) disclosing information about third parties in the database did not implicate the Right to Know Law’s personal security exemption because the department specifically told people that the information submitted to it would be public.

Background

Vera Cole, the vice president of the Mid-Atlantic Renewable Energy Association, sought department records related to the Pennsylvania Sunshine Program, which provides rebates to people who install solar energy equipment in their homes or businesses.

The department denied the request, stating that (1) the information could not be provided in the form requested (electronically), and (2) it had no obligation to create a record which did not exist. Nevertheless, the department provided most of the requested information, claiming that it did so “outside” the law and based on its discretion.

Cole appealed to the OOR. Before the OOR ruled on the issue, the department sent Cole another response in which it granted her request for some of the information it previously withheld, but was withholding other information under the law’s personal security exemption.

The department then argued that this second response was its official legal position and that its first response did not trigger Cole’s appeal rights. The OOR disagreed and ordered the department to turn over all of the requested information. The department appealed that order to the Commonwealth Court.

Commonwealth Court decision

On appeal, the department noted that the requested information resided in an electronic database and then argued that it could not be “compelled to troll through raw data and organize it in the manner preferred by the requester” because doing so would require it to create a new record, which it is not obligated to do under the law.

The court rejected this argument, ruling that “pulling information from a database is not the creation of a record.”

The department also argued that it should be able to raise objections that were not included in its initial denial of Cole’s request. Again, the court rejected this argument, reaffirming that an agency is “barred from offering a new reason for denying [a] request” in proceedings before the OOR.

Finally, the department argued that it should not be compelled to relinquish any personal information contained in the records. The court noted that although an agency cannot “waive an individual’s interest in keeping his information confidential,” the guidelines for the Sunshine Program expressly stated that people’s rebate applications were “public documents and subject to disclosure.” Applicants therefore knew the information in their applications was public and could be disclosed. As a result, that information was not exempt from disclosure.