In the Spring 2011 edition of MBM Education News, our office reported on the January 6, 2011 Commonwealth Court decision which ruled that e-mail from an individual Township Commissioner’s home computer were not public records. In Silberstein v. Commonwealth, the Court reasoned that one official is not a local agency and has no authority to make decisions binding upon the local agency. The Commonwealth Court revisited this issue in the December 7, 2011 decision of Mollick v. Township of Worcester. In Mollick, the Court determined that the requested e-mail from an individual Township Commissioner’s home computer could be public records which had to be provided under the Right to Know Law (RTKL). According to the Court, the difference between the request in Mollick and the request in Silberstein was that the request in Mollick was not seeking e-mail from a Supervisor acting individually, alone, or in communication only with an outside third party but rather were e-mail exchanged between at least two of the three Supervisors with respect to an activity or business of the Township.
In Silberstein, the requester requested e-mail between an individual Township Commissioner, his constituents and outside legal counsel regarding certain applications for development projects in the Township. The Commonwealth Court determined that the request, on its face, sought information that documented Township activity through its Commissioners in connection with Township business. The Court then went on to address the issue of whether the e-mail of an individual Township Commissioner on his personal computer were records “of” the Township, and therefore, deemed public records. In this part of the analysis, the Court reasoned that one official is not a local agency and has no authority to make decisions binding upon the local agency. As an individual public official, the Township Commissioner had no authority to act alone on the Township’s behalf. Therefore, information located on an individual public official’s personal computer does not fall under the RTKL’s definition of a public document because it is not a record of the Township’s activity. However, the Silberstein Court cautioned against potential abuse and noted that the RTKL established safeguards to protect against the possibility that an agency may attempt to shield public records from disclosure by simply storing the records on a computer that is not in the physical possession or control of the agency. This safeguard requires the Open Records Officer of the agency to inquire of each public official as to whether they have possession, custody or control of a requested record that could be deemed public. The Open Records Officer must then determine whether the record is public, whether the record is subject to disclosure, or whether the public record is exempt from disclosure. After making these inquiries in Silberstein, the Court determined that the Township Commissioner’s e-mail were personal and not public records.
In Mollick, the Commonwealth Court distinguished Silberstein. The Mollick request was for e-mail exchanged between at least two of the three Supervisors resulting in the transaction of Township business or activities. Unlike a School Board consisting of nine Board Members, a Township Board of Supervisors is comprised of only three Supervisors. Therefore, two of the three Supervisors constitute a quorum while five of nine School Board Members are needed for a quorum. The Mollick Court determined that the requester was not seeking Supervisor e-mail with regard to an activity or business of the Township in which a Supervisor acted individually, alone or communicated only with an outside third party. Because of this distinction, the Court held that the Silberstein precedent was not controlling. On its face, the Mollick requests were for information that documented certain Township activities, through its Supervisors, in connection with Township business. However, the Court determined that it could not decide the question of whether the e-mail were between a quorum of the Supervisors which might constitute a “deliberation” of Township business pursuant to the Sunshine Act. If so, the e-mail exchanged between two or more of the Supervisors on their personal computers regarding Township business or activities might be “records” “of the agency.” However, the Township’s Open Records Officer failed to conduct the Silberstein inquiries of each Supervisor to determine whether they were in possession, custody or control of a requested e-mail that could be deemed public. As set forth in Silberstein, the Township’s Open Records Officer was required to determine, by conducting a good faith review, if the requested e-mail or e-mail exchange involved deliberation of Township business by a quorum of the Supervisors within the meaning of the Sunshine Act. Because this good faith inquiry was not conducted, theCommonwealth Court remanded the case to the Trial Court for further remand to the Office of Open Records to direct the Township’s Open Records Officer to fulfill his duty under the RTKL by making these good faith inquiries.
The lesson learned from both the Silberstein and Mollick decisions is that e-mail located on the personal home computers of School Directors could very well be considered a public record, open to disclosure under the RTKL. When confronted with a request for such e-mail, the School District’s Open Records Officer must ask each Board Member if such e-mail exists. If it does, the District’s Open Records Officer must then further inquire and/or review the e-mail in question to determine if it was exchanged among a quorum of the Board Members and whether it related to School District business which must be deliberated in public under the Sunshine Act. Both the Silberstein and Mollick decisions serve as a caution to School Board Directors to be careful how they communicate with each other by e-mail and what they include in their e-mail communications in the event the e-mail are public records subject to disclosure under the RTKL.