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FINAL DETERMINATION

IN THE MATTER OF :

:

JIM DEEGAN :

And The Express Times, :

Complainant :

: Docket No.: AP 2010-0148v. :

:

WIND GAP BOROUGH, :

Respondent :

INTRODUCTION

Mr. Douglas Brill on behalf of the Express-Times (the Requesters), submitted a

request to Wind Gap Borough (the Borough) pursuant to the Right-to-Know Law, 65

P.S. 67.101 et seq., (RTKL) seeking text messages sent or received on a Borough

phone. The Borough denied access to the text messages as they were not in the Boroughs

possession. The Requester timely appealed to the Office of Open Records (OOR). For

the reasons set forth in this Final Determination, the Requesters appeal is granted and

the Borough is required to take further action as directed below.

FACTUAL BACKGROUND

On February 2, 2010, the Requesters submitted a right-to-know request seeking

text messages sent to and from borough cell phones issued to police chief Craig

Armitage, for 2008 and 2009. On February 8, 2010 the Borough open records officer,

Louise Firestone, granted a copy of the phone bill but withheld the phone numbers

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themselves citing various exemptions under the RTKL. The Borough asserted that it did

not have a copy of the text messages, but stated that if it did they would also be exempt..

On February 18, 2010, Jim Deegan, on behalf of the Requester, appealed to the OOR

challenging the denial and asserting that the Borough could get the text messages from

the cell phone provider.

The parties were invited to submit information in support of their positions. On

March 2, 2010 the Borough solicitor, Ronold Karasek, Esquire provided the affidavit of

Louise Firestone stating as follows: The bill that is received by the Borough for the

Police Chiefs cell phone does list numbers called, however, the cell phone bill does not

contain any text message content. Affidavit, 2. She further stated that the Borough

does not have in its possession the text messages (either issued from or sent to) the Police

Chiefs cell phone. Affidavit, 3. The Requester submitted information on March 3,

2010, but it was not considered as it was submitted after the record closed.

LEGAL ANALYSIS

The OOR is authorized to hear appeals for all Commonwealth and local agencies.

65 P.S. 67.503(a). The Borough qualifies as a local agency subject to the RTKL and its

obligations of mandatory disclosure. See 65 P.S. 67.102, 67.302. The RTKL defines a

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 ordecree; or (3) is not protected by a privilege.

65 P.S. 67.102. The cell phone bill is a record of the agency. Agencies are

required to provide public records that are in their custody, possession or control. The

Borough asserts that the text messages do not appear on the bill that the Borough receives

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and therefore it does not have the record in its possession. However, the Borough has

constructive control of its phone bill and is required to retrieve a copy that includes text

messages, if one exists, from its cellular telephone provider. The Borough may redact

nonpublic information as permissible under the RTKL. If no phone record including text

messages is in the possession of the phone company the Borough is required to provide

an affidavit signed under penalty of perjury that the record does not exist in its custody,

possession, or control.

CONCLUSION

For the foregoing reasons, the Requesters Appeal is granted. The Borough is

required to retrieve a copy of the phone bill with text messages from the phone company,

if one exists. Otherwise, it is required to provide the Requester with an affidavit that the

record does not exist in its custody, possession or control. This Final Determination is

binding on the parties. Within thirty (30) days of the mailing date of this Final

Determination, either 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 shall be served notice and have an opportunity to respond according to court rules

as per Section 1303. This Final Determination shall be posted at:

http://openrecords.state.pa.us.

FINAL DETERMINATION ISSUED AND MAILED: March 22, 2010

_________________________APPEALS OFFICER

AUDREY BUGLIONE, ESQ.

Sent to: Jim Deegan, Ronold Karasak, Esquire

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