FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No: AP 2019-2056
: (consolidated)
WEST EASTON BOROUGH, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted two requests (collectively, the “Requests”) to

West Easton Borough (“Borough”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§

67.101 et seq., seeking phone records and emails concerning a Borough RTKL-related resolution.

The Borough denied the Requests, asserting that the records requested do not exist within its

possession, custody or control. The Requester appealed to the Office of Open Records (“OOR”).

For the reasons set forth in this Final Determination, the appeal is denied, and the Borough is not

required to take any further action.

FACTUAL BACKGROUND

On August 30, 2019, the Requester filed the first Request (“Request One”), seeking the

following:

In accordance with your denial of records in the 8/27/19 response, I would

like the phone records that you claim exist between council members and the
alleged “backing” of PSAB and its 1,400 members for Mr. Dees vexa[t]ious RTKL

1
 requestor resolution, as stated in the July 8 meeting minutes. The phone records
should be from all cell phones or borough phones that were used to communicate
about this official matter from May 2019 through present.

On September 4, 2019, a second Request was filed by the Requester (“Request Two”) with the

Borough. Request Two sought:

…electronic copies of any and all emails sent from VP of Council Matthew
Dees email… from April 2019 through June 2019 to any person or organization,
agency, school or municipality which discuss vexa[t]ious RTK requestors, a
“problem resident[,]” a need to change the right to know law, Gregg Township,
Londonberry, Monroeville, a RTK law resolution, and all replies he received in
response to them.

After extending the time to respond, 65 P.S. § 67.902(b), the Borough denied the Requests on

October 9, 2019 and October 11, 2019 respectively. The Borough contended that the records

requested did not exist within the Borough’s possession, custody or control.

On October 30, 2019, the Requester appealed to the OOR1, challenging each of the denials

and stating grounds for disclosure.2 The OOR invited both parties to supplement the record and

directed the Borough to notify any third parties of their ability to participate in this appeal. 65 P.S.

§ 67.1101(c).

On November 8, 2019, the Requester filed supplemental information in support of her

position. On November 12, 2019, the Borough submitted attestations from Joan Heebner, the

Borough’s Open Records Officer, and Matthew Dees, Vice-President of the Borough’s Council,

in support of its position that the requested records do not exist.

1
The Requester filed two appeals, one which was docketed at OOR Dkt. AP 2019-2056 and the other at OOR Dkt.
AP 2019-2057. Because the appeals involve the same agency and requester, and the Requests seek records concerning
the same topic, the appeals are consolidated into OOR Dkt. AP 2019-2056. See 65 § 67.1102(b)(3) (stating that “the
appeals officer shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution of the
dispute”).
2
During the course of the appeal, the Requester granted the OOR various extensions of time to issue a final
determination. See 65 P.S. § 67.1101(b)(1) (“Unless the requester agrees otherwise, the appeals officer shall make a
final determination which shall be mailed to the requester and the agency within 30 days of receipt of the appeal filed
under subsection (a).”).

2
 On December 3, 2019, the Requester sought to submit additional information into the

record for consideration. The OOR granted the request and reopened the appeal record for the

submission of additional information from both parties. On December 4, 5 and 9, 2019, the

Requester submitted additional information, including emails exchanged between Ms. Heebner,

or Mr. Dees and individuals from other municipalities, arguing that it substantiates the existence

of the records she seeks. The Requester further argues that deleted emails could be accessed and

provided by the Borough’s computer consultant, EZ Micro Solutions.

On December 13, 2019, the Borough submitted a response to the Requester’s supplemental

information filed in December. An additional attestation from Ms. Heebner was filed on January

7, 2020 in response to an inquiry from the OOR for additional information.

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. § 67.503(a). An appeals officer is required “to review all information filed relating to the

request” and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing

to resolve an appeal. The law also states that an appeals officer may admit into evidence testimony,

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evidence and documents that the appeals officer believes to be reasonably probative and relevant

to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id.;

Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing, however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Borough is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302. Records in the 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. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested

is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901.

An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §

67.708(b).

Section 708 of the RTKL 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. § 67.708(a)(1). 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 Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)). Likewise, “[t]he burden of proving a record does not exist ... is placed on the

agency responding to the right-to-know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190,

1192 (Pa. Commw. Ct. 2011).

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 1. The Borough has proven that the phone records sought in Request One, do not
exist.

Request One seeks phone records in connection with statements contained in

correspondence issued on August 27, 2019 by the Borough in response to a separate RTKL

request.3 The Requester included the August 27, 2019 correspondence as part of the instant

appeal.4 The Borough argues that the phone records sought do not exist. In support of its position,

the Borough offers attestations from Ms. Heebner and Mr. Dees. Ms. Heebner attests that she “did

not claim there were phone records between council members” in the August 27, 2019 letter.

Rather, she indicates that Mr. Dees, based on his work on the matter, was “sharing his thoughts”

with council and residents in attendance at the council meeting. Ms. Heebner states that the records

requested do not exist and indicates that she forwarded Request One to Mr. Dees who replied, and

also attests, that he has no phone records that would satisfy the Request.

Under the RTKL, a statement made under the penalty of perjury may serve as sufficient

evidentiary support. See Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct.

2011); Moore v. Office of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010). In the

absence of any evidence that the Borough has acted in bad faith or that the requested records exist,

“the averments in [the affidavits] should be accepted as true.” McGowan v. Pa. Dep’t of Envtl.

3
We note that the Requester indicates in her appeal that she is seeking phone records between council persons and
others from April 2019 to August 2019. Request One, however, originally requested records between council
members “from May 29, 2019 through [the] present.” As is pointed out by the Borough, a requester may not modify,
explain or expand upon a request on appeal. See Michak v. Pa. Dep’t of Pub. Welfare, 56 A.3d 925 (Pa. Commw. Ct.
2012) (holding that “where a requester requests a specific type of record ... the requester may not, on appeal argue that
an agency must instead disclose a different record in response to the request”); Staley v. Pittsburgh Water and Sewer
Auth., OOR Dkt. AP 2010-0275, 2010 PA O.O.R.D. LEXIS 256 (“A requester may not modify the original request as
the denial, if any, is premised upon the original request as written”). Thus, we only consider this appeal as it relates to
the original language of Request One.
4
The Borough’s August 27, 2019 correspondence states in relevant part as follows: “Based on a thorough examination
of the records in the possession, custody and control of [the Borough] and Council Vice-President, Matthew Dees, the
records you requested do not exist…. Mr. Dees was sharing his information learned via phone calls with the rest of
council and residents attending the July 8, 2019 council meeting.” [emphasis added].

5
Prot., 103 A.3d 374, 382-83 (Pa. Commw. Ct. 2014) (citing Office of the Governor v. Scolforo, 65

A.3d 1095, 1103 (Pa. Commw. Ct. 2013)).

Here, Request One appears to be based on the Requester’s misinterpretation of the

statements in the August 27, 2019 letter, i.e. that phone calls had occurred between council

members about the proposed resolution. However, based on the evidence submitted, the Borough

has met its burden of proof that the phone records sought between council members do not exist.

2. The Borough has met its burden of proof that the emails requested do not exist.

The Borough argues that emails responsive to Request Two do not exist. In support of its

position, the Borough offers attestations from Ms. Heebner and Mr. Dees. Ms. Heebner attests

that upon receipt of Request Two, she forwarded the Request to Mr. Dees for a response. Mr.

Dees’ response, which he subsequently attested to, indicated that he did not retain any of the emails

sought by the Requester.5 Ms. Heebner attests that based upon her search and inquiries with

relevant agency personnel (Mr. Dees), she made the determination that the records requested do

not exist within the Borough’s possession, custody or control.

5
Throughout the appeal, the Borough suggests that records related to Mr. Dees’ work on the proposed vexatious
requester resolution are not records of the Borough. While we need not address this issue directly, since the records
requested do not exist, we would note that a determination of whether a record is a record of an agency is based on
whether the record “documents a transaction or activity of an agency” and whether it “is created, received or
retained...in connection with a transaction, business or activity of the agency.” 65 P.S. § 67.102. E-mails are not
considered records of an agency merely because they were sent or received using agency e-mail addresses or by virtue
of their location on an agency computer. See Meguerian v. Office of the Attorney General, 86 A.3d 924, 930 (Pa.
Commw. Ct. 2013); Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259 (Pa. Commw. Ct. 2012). Instead, the e-mails must
document a transaction or activity of the agency. See Mollick v. Twp. of Worcester, 32 A.3d 859 (Pa. Commw. Ct.
2011). “While an individual [official] lacks the authority to take final action on behalf of the entire [agency], that
individual acting in his or her capacity, nonetheless constitutes agency activity when discussing agency business.”
Baxter, 35 A.3d at 1264. See also Pa. Office of Attorney General v. The Philadelphia Inquirer, 127 A.3d 57 (Pa.
Commw. Ct. 2015) (stating “what makes an email a ‘public record,’ then, is whether the information sought documents
an agency transaction or activity, and the fact whether the information is sent to, stored on or received by a public or
personal computer is irrelevant...”).

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 Here, the Request seeks emails sent or received by a specific councilmember, Mr. Dees, at

a personal email address for that councilmember.6 The Borough’s evidence establishes that Ms.

Heebner, as the Open Records Officer, inquired with Mr. Dees as to whether he had any emails

responsive to the Request and he replied that he did not retain the records sought. See generally

Hays v. Pa. State Police, OOR Dkt. AP 2015-0193, 2015 PA O.O.R.D. LEXIS 294 (finding that

an agency conducted a good faith search by “contact[ing] the [b]ureau most likely to possess

responsive records, and ... explain[ing] why that [b]ureau is most likely to possess those records”).

Accordingly, based on the evidence provided, the Borough has proven that the emails sought do

not exist within its possession, custody or control.

The Requester contends that copies of the emails sought can be obtained from the

Borough’s computer consultant, EZ Micro Solutions. However, in response to this contention,

Ms. Heebner attests that Mr. Dees’ personal home computer is not covered by EZ Micro’s services

and, therefore, “EZ Micro is not in the possession of and cannot obtain any of Mr. Dees’ emails.”

During the course of the appeal, the Requester submitted copies of various emails sent and

received by Mr. Dees that would, if in the possession of Mr. Dees, be responsive to the Request.

The Requester acknowledges her acquisition of the emails through RTKL requests submitted to

other municipalities that corresponded with Mr. Dees or Ms. Heebner. The Requester argues that

the very existence of these emails is evidence that records do in fact exist within the possession

and custody of the Borough and that the attestations from the Borough should therefore be

disregarded. The fact that the emails submitted by the Requester exist in the possession of other

agencies, however, does not equate to a conclusion that the same emails must therefore exist within

the custody of the Borough, or more specifically, Mr. Dees. The existence of the emails only

6
To the extent the Requester intended to have her Request apply more broadly to emails sent and received by
employees and/or officials of the Borough, she may choose to submit a new RTKL request seeking such information.

7
shows that they had been sent or received by the parties named and on the dates listed in the email,

not that Mr. Dees still has possession of them.7

CONCLUSION

For the foregoing reasons, the appeal is denied, and the Borough is not required to take

any further action. This Final Determination is binding on all parties. Within thirty days of the

mailing date of this Final Determination, any party may appeal to the Northampton County Court

of Common Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal.

The OOR also shall be served notice and have an opportunity to respond as per Section 1303 of

the RTKL. 65 P.S. § 67.1303. However, as the quasi-judicial tribunal adjudicating this matter,

the OOR is not a proper party to any appeal and should not be named as a party.8 This Final

Determination shall be placed on the OOR website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: January 9, 2020

/s/ Angela Edris

_________________________
APPEALS OFFICER
ANGELA EDRIS, ESQ.

Sent to: Tricia Mezzacappa;

Joan Heebner, AORO

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The Requester also argues that the emails should exist because the Borough’s record retention schedule requires that
the Borough retain such records. However, the OOR makes no determination as to whether the requested emails
should have been retained under the Borough’s retention schedule. See Troupe v. Borough of Punxsutawney, OOR
Dkt. AP 2010-0743, 2010 PA O.O.R.D. LEXIS 731 (“While … evidence may establish that a [record] should exist,
the OOR lacks jurisdiction to rule on the propriety of the lack of such [record] -- the OOR may only determine whether
a responsive record does, in fact, exist”).
8
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).