Records in possession of former employee not public record

Breslin v. Dickinson Township
Commonwealth Court of Pennsylvania
No. 875 C.D. 2012

May 24, 2013

The Commonwealth Court determined that records in the possession of former employees of a government agency are not public records under the Right to Know Law because those records are not in the possession, custody, or control of the agency.


Charles Breslin submitted a Right to Know Law request to Dickinson Township seeking a copy of a specific email addressing township business that was “in the possession of former Township Office Manager Robert Livingston.” The township denied the request, stating that the email was not in the township’s possession. Breslin appealed to the Office of Open Records.

The OOR instructed the township to ask current employees whether they possessed the email, but held that the township had no obligation seek the email from former employees or officials. After the trial court affirmed that ruling, Breslin appealed to the Commonwealth Court.

Commonwealth Court Decision

A record is public only if it is in the “possession, custody, or control” of an agency (or is possessed by a government contractor).

Previously, the Commonwealth Court held that a record in the possession of an agency official is under the control of the agency and thus must be disclosed under the RTKL. In the case of a former official, however, the Commonwealth Court explained that “documents in the possession” of a former official “are not in the ‘possession, custody, or control’” of the agency because former employees are not under any duty to provide the document to the agency.

Therefore, the email held by the former township official was not in the township’s possession and not subject to the RTKL.