IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Center for Investigative Reporting :

d/b/a Reveal, :

 Petitioner :

 :

 v. : No. 227 C.D. 2023

:

Pennsylvania Department of Health :

(Office of Open Records), :

 Respondent : Argued: May 7, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE WOLF FILED: June 5, 2024 

The Center for Investigative Reporting d/b/a Reveal (Requester) 

petitions for review from a Final Determination of the Office of Open Records 

(OOR) dated February 6, 2023 that denied its appeal from the Pennsylvania 

Department of Health’s (Department) partial denial of its request under the Rightto-Know Law (RTKL).1

 We affirm.

BACKGROUND

On August 4, 2022, Requester filed a request (Request) with the 

Department seeking records related to cases of reported neonatal abstinence 

syndrome (NAS) for years 2020 and 2021. Specifically, Requester sought: 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2

Aggregate data held by the Bureau of Epidemiology 

regarding cases of [NAS] reported to the Bureau of 

Epidemiology in the years 2020 and 2021, including: 

a) Data indicating the number of reported NAS cases, 

on an aggregate statewide basis;

b) Data for cases referred to ChildLine, the 

substance(s) to which infants were exposed, on an 

aggregate statewide basis;

c) Data indicating the number of Plans of Safe Care 

initiated, the substance(s) to which infants were 

exposed on an aggregate statewide basis; and

e)

[2] Data indicating to whom infants were discharged, 

the substance(s) to which infants were exposed, on an 

aggregate statewide basis.

Reproduced Record (R.R.) 001a. Requester clarified that it is “not requesting any 

confidential or protected health information [] and/or personally-identifiable 

information. . . .” Id.

By letter mailed September 12, 2022, the Department granted the 

Request in part, by providing a weblink to the “Neonatal Abstinence Syndrome: 

2020 Report” issued August 2022 by the Bureau of Family Health and Bureau of 

Epidemiology (2020 NAS Report), and providing pinpoint cites in response to the 

itemized Requests listed at letters “a” through “e.”

3

 Id. at 003a. The Department 

2

It appears Requester mistakenly omitted the letter “d” in the Request. 

3 The Department stated: 

Request “a” is addressed on page 22. Data limitations are described on page 8 of 

the report and in the narrative sections on pages 13 and 20, as related to items “b,” 

“c,” and “e” of the request. Requests “b,” “c,” and “e” are addressed on page 34, 

but is not stratified to include the substances the infant was exposed to. Information 

on substances an infant was exposed to can be found on page 29 of the report. 

Reproduced Record (R.R.) 003a. 
3

otherwise denied the Request, certifying that it “has conducted a search and [has] 

been advised that no additional responsive records exist within the Department’s 

custody, possession, or control concerning your RTKL request. The Department is 

not required to create new records in response to an RTKL request.” Id. 

Requester appealed the Department’s September 12, 2022 letter to the 

OOR, arguing that (1) the Department failed to prove that a reasonable search was 

done and that records responsive to Requests “b,” “c,” and “e” do not exist; (2) the 

Department unjustifiably refused to provide the requested data from existing 

records; and (3) that redacting the requested data from existing case reports would 

not constitute the “creation of a new record” under the RTKL. Id. at 005a-015a. 

Specifically, Requester maintained that the narrative section of the 2020 NAS Report 

belies the Department’s claim that it exhausted its search for responsive records. It 

submitted that the narrative section explains that “hospitals submitted case reports 

for newborns meeting NAS criteria to the [Department’s] internet case management 

system (iCMS), a web-based software application . . . used to track and manage 

newborn screening results.” R.R. 011a. Requester further argued that “[t]he fact 

that each individual report is submitted to an online case management system 

indicates that there are records pertaining to [Requester’s] [R]equests ‘b,’ ‘c,’ and 

‘[e]’ for aggregate data outside of the [2020 NAS Report].” Id. Requester asserted

that “the responsive records to [Requester’s] requests are the reporting forms 

themselves submitted individually and stored collectively on the Department’s 

electronic case management system.” Id. at 013a. Acknowledging that the 

individual report forms will contain sensitive information, Requester averred that

RTKL and associated case law require agencies to redact exempt information while 
4

disclosing non-exempt information, and such redactions, even if voluminous, would 

not amount to the creation of a new record. Id.

In response to Requester’s appeal, the Department submitted the 

attestations of (1) Tara Trego, Director of the Department’s Bureau of Family Health

(Trego Attestation), and (2) Danica Hoppes, Legal Administrative Officer and Open 

Records Officer for the Department (Hoppes Attestation) to the OOR. 

On February 6, 2023, the OOR denied Requester’s appeal. Requester’s 

Brief, Exhibit A (Final Determination). The OOR concluded that through the

submission of the Trego and Hoppes Attestations, the Department carried its burden 

of proof that it conducted a good faith search and that no additional records 

responsive to Requests “b,” “c,” and “e” exist. Final Determination at 4-7. In so 

concluding, the OOR relied on the Hoppes Attestation, which provided, in relevant 

part: 

1. On August 5, 2022[,] [Hoppes] received this [R]equest. 

That same day reviewed it, logged it, and circulated the 

entire [R]equest to Department personnel who [Hoppes] 

believed most likely to possess responsive records. 

2. This initially included personnel from the Bureau of 

Epidemiology as well as members of the office Legal 

Counsel. 

3. [Hoppes] attached a copy of the [R]equest, and included 

the following in the email: [. . .] 

4. The week after the email was circulated, a recipient 

from the [Bureau] raised points for discussion and also 

suggested that the email be forwarded to Department 

personnel within the Bureau of Family Health since the 

NAS reporting had been transitioned to that Bureau. 
5

5. Several individuals from the Bureau of Family Health 

then joined in on the discussion regarding interpretation of 

the [R]equest and potentially responsive records. 

6. Once a consensus was reached about the scope of the 

[R]equest and the potentially responsive records in the 

Department’s possession, [Hoppes] was advised by the 

Deputy Secretary for Health Promotion and Disease 

Prevention within the Bureau of Family Health that the 

2021 data was not finalized. 

7. [Hoppes] reviewed responses to the above-described 

email as well as the records provided in response to this 

email. 

8. [Hoppes] was advised that the 2020 NAS Annual 

Report of the Bureaus of Family Health and Epidemiology 

(Annual Report) contained the only responsive records in 

the Department’s possession. 

9. It was further explained that the data contained in the 

Annual Report was “not stratified to include to [sic]

substances the infant was exposed to.” 

10. There was no indication that any additional records 

existed and none of the recipients of the email suggested 

additional custodians of records beyond those discussed 

above. 

11. Accordingly, based on the inter-bureau discussions 

and information provided to [Hoppes], [Hoppes] 

concluded that the Annual Report was the only responsive 

record in the possession of the Department. 

12. [Hoppes] included a link to the Annual Report in the 

Department’s final response to the RTKL request, which 

[Hoppes] sent to the [R]equester on September 12, 2022. 

[Hoppes] also explained that the 2020 data was not 

stratified in the manner requested, and that the 2021 data 

was not finalized was [sic] therefore not available. 
6

13. [Hoppes has] no information or reason to believe that 

the Department is [sic] possession of responsive records 

beyond those already provided to the [R]equester.

Id. at 4-5 (quoting Hoppes Attestation). Additionally, the OOR relied on a portion 

of the Trego Attestation, which states:

1. The 2020 NAS Annual report constitutes the 

aggregated version of the data sought by the [R]equester, 

i.e., it provides the total number of cases, the total number 

of plans of safe care initiated, the total number of 

ChildLine referrals, and the total number of each category 

of discharge plan. The Bureau does not have additional 

aggregated data reflecting these categories of information. 

2. The 2020 NAS Annual report is the only record in 

the Bureau’s possession reflecting the aggregated data 

requested for 2020. 

3. Other than the 2020 NAS Annual Report, the 

Bureau does not maintain an aggregated or de-identified 

set of data containing the requested information for the 

year 2020. 

Id. at 5 (quoting Trego Attestation). The OOR held that based on its review of the 

evidence, including the 2020 NAS Report reflecting responsive data to Requests “b,” 

“c,” and “e,” and the Trego and Hoppes Attestations stating that all responsive 

records have been provided, the Department met its burden of proof that no 

additional responsive records exist within its possession, custody, or control. Id. at 

6-7. 

The OOR next addressed Requests “b,” “c,” and “e” to the extent they 

sought data regarding individual substances to which infants were exposed. The 

OOR accepted the Department’s argument that it does not possess responsive 

aggregated data that correlates individual substances beyond what is contained in 
7

the 2020 NAS Report, and that comprising this information would require the 

Department to create a new record. The OOR found conclusive a portion of the 

Trego Attestation, which provides: 

6. With respect to the information requested in [Items ae] of the [R]equest for 2020, the aggregated statewide data 

reflecting the number of [NAS] cases, the number of cases 

referred to ChildLine, number of Plans of Safe Care 

initiated and data regarding discharge plans can be found 

in the 2020 NAS Annual Report. 

7. Because this is where the responsive aggregated data are 

located, [Trego] advised the [Department] to provide the 

2020 NAS Annual Report in response to the abovereferenced RTKL [R]equest. 

8. Any information beyond the NAS Annual Report, 

specifically including the data underlying the reports that 

are maintained by the Department (NAS Database) are not 

aggregated but rather consist of individual case reports of 

NAS. 

. . . . 

11. Beginning on January 1, 2020, NAS case report data 

have been reported to the Bureau of Family Health, where 

case data are integrated with newborn screening data 

reported to the Bureau, in an electronic database known as 

the [iCMS]. 

12. In response to the above-referenced [R]equest, the 

Department provided the 2020 NAS Annual Report, 

prepared jointly by the Bureaus of Family Health and 

Epidemiology. 

13. The 2020 NAS Annual Report contains aggregated, 

de-identified statistics generated using the raw, selfreported data submitted by reporting facilities in the 

attached form, referred to as the iCMS NAS report form. 

. . . . 
8

14. The iCMS NAS case report form required highly 

granular, patient-specific information including mothers’ 

and infants’ full names, sex, dates of birth, medical tests 

performed, test results, symptoms, treating physician 

information, and information about discharge plans. 

15. The Bureau of Family Health receives the completed 

iCMS NAS case report forms containing data for each of 

these fields. 

16. A[s] a result, the NAS dataset in iCMS consists of 

thousands of individual patient records consisting of 

detailed biographical, demographic, and medical 

information gleaned from individual iCMS NAS case 

report forms. 

17. In order to provide the Requester with data that are 

more granular than what is contained in the 2020 NAS 

Annual Report while still upholding patient 

confidentiality, records in the NAS database would have 

to be completely reconfigured. This would amount to 

generating new custom dataset that would ultimately omit 

or redact much of the information that is collected on the 

NAS case report form and maintained by the Bureau 

within the Department. 

18. To provide the underlying data rather than the 

requested statewide aggregated data would require the 

Department to create, compile, or reorganize records in a 

format that the Bureau does not currently maintain for 

purposes of carrying out its public health functions. 

19. While the Bureau of Family Health uses NAS database 

to generate Annual Reports that further public health 

objectives, the instant [R]equest asks the Bureau to 

generate an additional custom record that provides a 

greater level of detail than is necessary to meet the 

Department’s public health responsibilities. The 

aggregated data have already been provided in the form of 

the 2020 NAS Annual report; providing the underlying 

facility-submitted data as simply is not possible without 

disclosing the detailed biographical, demographic and 
9

medical information contained in the iCMS NAS case 

report form. 

. . . . 

24. The [R]equester now asks that NAS data for 2020 be 

correlated in a manner that is not presently done, 

specifically the [R]equester would like each of the three 

categories of requested information to be further broken 

down by specific substance(s) to which the infant(s) were 

exposed. 

25. The Bureau does not presently correlate the NAS data 

in that manner. An accurate correlation of these categories 

of information is not currently necessary for purposes of 

the Department’s designated public health response to the 

reports of NAS within the Commonwealth. All NAS 

probable and confirmed cases reported to the Bureau were 

exposed to an opioid, barbiturate, benzodiazepine, or some 

combination of the same, consistent with the Department’s 

NAS case definition. While other substances may be 

reported on the NAS case report form, exposure to those 

substances is not further verified. Another limitation of 

the data is that data are self-reported by hospitals and 

information received by the Bureau of Family Health 

regarding notifications to Child[L]ine and initiation of 

plans of safe care has not been verified by the Department 

of Human Services. 

26. The requested data stratified by substances of exposure 

could not be pulled directly from the existing NAS 

database; the Bureau would have to create a custom query 

to be run on the reports of all 1,825 probable and 

confirmed NAS cases reported to the Department with the 

parameters requested. 

27. Providing aggregate results to correlate to the 

substances to which infants were exposed, as requested in 

[Items b, c, and e] is also complicated by the fact that 

frequently more than one substance is reported. 
10

Final Determination at 8-10 (quoting Trego Attestation). The OOR found that the 

Trego Attestation sufficiently demonstrated that information stratified by substances 

of exposure could not be pulled directly from the Department’s existing database, 

and that the RTKL does not require the Department to create a custom query to 

aggregate such information that does not otherwise exist. Id. at 10. Requester 

appealed the Final Determination to this Court. 

ISSUES

Requester raises three issues on appeal.4 First, Requester argues that 

the OOR erred in concluding that the Department did not already possess the 

requested data. Second, Requester argues the OOR erred in concluding that a custom 

query to extract data that already exists in a database constitutes creating a “new 

record” under Section 705 of the RTKL. Third, Requester asks for an award of 

attorneys’ fees and costs arguing the Department denied its request in bad faith and 

advanced an unreasonable interpretation of the RTKL. 

RELEVANT LAW

We begin with an overview of the relevant law. The RTKL is designed 

to promote access to government information and increase the transparency and 

accountability of government. Bowling v. Office of Open Records, 990 A.2d 813, 

824 (Pa. Cmwlth. 2010). Section 102 of the RTKL defines a “record” as

[i]nformation, regardless of physical form or 

characteristics, that documents a transaction or activity of 

an agency and that is created, received or retained pursuant 

to law or in connection with a transaction, business or 

activity of the agency. The term includes a document, 

4 For appeals from determinations made by the OOR involving Commonwealth agencies, our 

standard of review is de novo and our scope of review is plenary. Bowling v. Office of Open 

Records, 75 A.3d 453, 477 (Pa. 2013).
11

paper, letter, map, book, tape, photograph, film or sound 

recording, information stored or maintained electronically 

and a data-processed or image-processed document.

65 P.S. § 67.102. Section 701 of the RTKL, titled “Access,” provides that

[u]nless otherwise provided by law, a public record [] shall 

be accessible for inspection and duplication in accordance 

with this act. A record being provided to a requester shall 

be provided in the medium requested if it exists in that 

medium; otherwise, it shall be provided in the medium in 

which it exists. 

65 P.S. § 67.701. Section 705 clarifies that “[w]hen responding to a request for 

access, an agency shall not be required to create a record which does not currently 

exist or to compile, maintain, format or organize a record in a manner in which the 

agency does not currently compile, maintain, format or organize the record.” 65 P.S. 

§ 67.705. 

In interpreting the parameters of Section 705 of the RTKL, this Court’s 

decision in Department of Environmental Protection v. Cole, 52 A.3d 541 (Pa. 

Cmwlth. 2012), is instructive. In Cole, Cole sought records from the Department of 

Environmental Protection (DEP) relating to the rebate application process under the 

Pennsylvania Sunshine Program – a program that grants rebates to homeowners and 

small business for solar installations on their property. In the request, Cole noted 

that “[i]t would be easiest for us, and hopefully you too, to receive this data in an 

electronic format.” Cole, 52 A.3d at 544. DEP denied Cole’s request on the stated 

basis that it “does not have the records that [Cole] request[ed] in its possession, under 

its custody or its control in the format [Cole] requested.” Id. Despite its denial, 

DEP, as a courtesy, provided “most of the information” to Cole. Id. Cole appealed 

to the OOR asserting, inter alia, that three categories of information included in her

original request are collected by DEP in its online rebate application, are subject to 
12

disclosure under the RTKL, and were not disclosed in the records DEP provided out 

of courtesy. Id. at 545. Citing Section 705 of the RTKL, DEP responded that it has 

no obligation to “create a record in response to a request where the data sought 

existed only in an electronic database and was not organized in the manner 

requested.” Id. In support of its position, DEP submitted an affidavit of its employee 

who oversees the Sunshine Program, who stated that the information Cole requested 

“was not available in a ‘screen shot’ or in any series of isolated electronic records, 

such as reports or spreadsheets, or in hard copies.” Id. at 546. The OOR issued a 

final determination granting Cole’s appeal, holding, inter alia, that DEP did not 

provide evidence to prove that the requested information did not exist. Id. DEP 

appealed to this Court, asserting that the OOR erred in directing it to produce records 

that exist only in an electronic database. Again, invoking Section 705 of the RTKL,

DEP argued that “it cannot be compelled to troll through raw data and organize it in 

the manner preferred by the requester.” Id. at 547. DEP maintained that the OOR 

erred in focusing on DEP’s admission that the requested information exists in a raw 

form in its databases. Id. This Court rejected DEP’s argument and affirmed the final 

determination of the OOR. We explained: 

The information sought by Cole is a “record” because it is 

information received and retained by [DEP] in 

conjunction with its “transactions and activities” under the 

Sunshine Program. [DEP] was able to provide most of the 

requested information and admitted having the remaining 

information, i.e., the addresses of rebate recipients. A 

“record” subject to disclosure under the [RTKL] includes 

information “regardless of form” and includes information 

contained in a database.

Requiring [DEP] to provide these “records” does not 

violate Section 705 of the [RTKL], which excuses an 

agency from creating a new record or reorganizing 
13

existing records. An agency need only provide the 

information in the manner in which it currently exists. 

However, as this Court reasoned persuasively in Gingrich 

v. Pennsylvania Game Commission (Pa. Cmwlth., No. 

1254 C.D. 2011, filed January 12, 2012), drawing 

information from a database does not constitute creating a 

record under the [RTKL].

Id. (internal footnote omitted). This Court concluded that Cole did not request the 

creation of a record or a unique format, but merely noted that it would be most 

convenient to provide the information electronically. Id. at 548. Thus, the 

Department was required to provide Cole with the requested information, but only 

in the format in which it was already available. Id.

As cited in Cole, this Court’s opinion in Gingrich, although unreported, 

is of persuasive value in interpreting Section 705.

5 There, Gingrich requested 

information from the Pennsylvania Game Commission (Commission) relating to 

deer harvest and habitat and financial information. Specifically, Gingrich sought 

“supporting data for summary data shown in [the Commission’s] Annual Financial 

Reports or information/records in [the Commission’s] Deer Harvest Data Base.” 

Gingrich, slip op. at 2. Gingrich’s request stated that although he “suggested 

reporting formats, they are not required.” Id. This Court held that suggesting a 

potential format in which to present the requested information is not an improper 

request to create a new record. We explained that an agency can be required to draw 

information from a database, with the limitation that the information must be drawn 

in formats readily available to the agency. In other words, where requested 

information exists in a database, Section 705 of the RTKL does not shield its release; 

it must be provided in the manner in which it currently exists. 

5

See Commonwealth Court Internal Operating Procedure Section 414, 210 Pa. Code § 69.414 

(unreported panel decisions of this Court issued after January 15, 2008, may be cited for their 

persuasive value, but not as binding precedent). 
14

In contrast, this Court has also held that when information is not readily 

available in the form requested, the RTKL protects an agency from having to 

produce a new record, and “precludes a requester from being able to []shanghai[] 

government employees to create a record when one does not exist and take them 

away from carrying out their normal responsibilities.” Pennsylvania State Police v. 

McGill, 83 A.3d 476, 481 (Pa. Cmwlth. 2014). In McGill, the requester sought 

information regarding municipal police officers that received certain training but 

asked that information regarding undercover or covert officers be redacted. Id. at 

477. This Court found that to obtain the information necessary to comply with the 

request and ensure that confidential information is not disclosed, the Pennsylvania 

State Police (PSP) could not simply examine and compile information already in its 

possession but would have to coordinate with over 1,000 municipal law enforcement 

agencies throughout the Commonwealth. Accordingly, PSP was not required to 

respond to the request, as it would require the creation of a new record in 

contravention of Section 705 of the RTKL. 

PARTIES’ ARGUMENTS 

With this background in mind, we turn to the parties’ arguments. 

Requester’s Arguments

Requester argues that the OOR fundamentally misapplied this Court’s 

longstanding precedent that retrieving responsive information from a database does 

not run afoul of Section 705 of the RTKL. It argues that since this Court’s decision 

in Cole, the Court has focused its Section 705 analysis on whether the requested data 

already exists. Requester argues that here, the Department has admitted that its 

iCMS database already contains the requested NAS data. Pointing to the Trego 

Attestation, Requester argues that Ms. Trego attested that the 2020 NAS Report is 
15

created by analyzing self-reported data submitted by reporting facilities on the iCMS 

NAS case report form (Case Report Form), a blank copy of which was attached to 

the Trego Attestation as Exhibit A. R.R. 090a-093a. Requester notes that the Case 

Report Form contains a dropdown field to indicate: (1) whether laboratory testing of

neonate for substance exposure was performed, and if so, which drug(s) did the 

infant test positive for; (2) whether a notification was made to ChildLine; (3) whether 

a plan of self care was initiated; and (4) whether the infant was discharged. Id. 

Requester argues the iCMS database that collects the Case Report Forms contains 

the precise data requested, and these data points can be pulled directly from the 

existing database. Despite the Department’s admission that the requested data 

exists, Requester argues the Department was nevertheless excused from producing 

it on the erroneous grounds that running a “custom query” was tantamount to 

“generating a custom dataset” and creating a new record. 

To that end, Requester again points to the Trego Attestation wherein 

Ms. Trego stated that to prepare the 2020 NAS Report, “the Bureau of Family Health 

creates and runs a customized data program to extract and analyze the raw data, the 

results of which are extensively reviewed, analyzed, confirmed, and formatted 

before being publicly released.” Trego Attestation ¶ 23; R.R. 087a. Requester 

submits that just as it does to create the annual NAS reports, the Department could 

fulfill Requester’s Request by “creating a custom query of the 1,825 probable and 

confirmed NAS cases reported to the Department with the parameters requested.”

Requester’s Brief at 19 (quoting Trego Attestation ¶ 26; R.R. 088a). Requester 

argues that “[a] query – even a ‘custom’ one – is the essence of ‘drawing information 

from a database,’ which this Court has long held ‘does not constitute creating a 

record under the [RTKL].’” Requester’s Brief at 22. 
16

Requester argues that the OOR’s conclusion that a custom query creates 

a new record – as opposed to merely drawing existing information from a database 

– is fundamentally incompatible with this Court’s decision in Cole and must be 

reversed. It asks this Court to “take this opportunity to refine and crystallize what 

has been clear for more than a decade: a database query to retrieve existing data 

does not ‘create a record’ for purposes of Section 705 of the RTKL.” Requester’s 

Brief at 17.

Finally, Requester seeks attorneys’ fees and costs pursuant to Section 

1304 of the RTKL, 65 P.S. § 67.1304, asserting the Department denied its request 

in bad faith based upon an unreasonable interpretation of this Court’s precedent

interpreting the RTKL. 

Department’s Arguments

The Department responds Requester’s position sidesteps the factual 

record developed before the OOR and ignores the simple fact that responsive records

simply do not exist. The Department highlights that the Request at issue is specific 

in that it seeks “aggregate data” regarding NAS cases. The Department provided 

the only record available, the 2020 NAS Annual Report; and proved through the 

Hoppes and Trego Attestations that no other aggregate data exists. While Requester 

baldly rejects that fact established through the Attestations, it has failed to provide 

any factual evidence in support of its position. To the extent Requester asserts the 

Case Report Forms contain drop-down data fields which can, in turn, be pulled from 

the Department’s iCMS database, the Department submits that such contention is 

factually inaccurate and based solely upon speculation. Describing the process it 

follows to create annual NAS reports, the Department maintains that it has to extract 

raw data from the Case Report Forms, resulting in the creation of a new record. The 
17

forms in and of themselves do not create a searchable database, as Requester 

implies.

6

 As specifically stated in the Trego Attestation and credited by the OOR, 

the Department has consistently stated that the requested data could not be pulled 

directly from the existing iCMS database, and responding to the items in the Request 

would require a custom query, which in turn, creates a new record. 

Addressing this Court’s precedent, the Department argues that 

Requester’s reliance on Cole and Gingrich is misplaced. Those cases reference data 

that exists in a database, “not data that exists on a form that needs to have additional 

calculations performed in order to create the record they seek.” Department’s Brief 

at 18. The RTKL is clear that an agency is not required to create a record that does 

not otherwise exist. In sum, the Department argues that it provided responsive 

records in the form available, the 2020 NAS Report. This response satisfied all but 

one of Requester’s itemized requests, which seeks a data correlation not presently

performed by the Department and not currently in existence.

Finally, the Department asserts that Requester’s request for attorneys’ 

fees and costs is baseless. 

ANALYSIS

As exemplified by this Court’s analysis in Cole and Gingrich, the first 

issue in determining whether a response to a request requires the creation of a new 

record under Section 705 is whether the responsive record exists. Here, that requires 

the Court to determine if the requested information exists in a database. If it is 

determined that such responsive records exist, the Court must then determine 

6 The Department also notes that in prior litigation before the OOR, Requester sought the 

disclosure of NAS Case Report Forms from the Department and was denied based on the 

conclusion that the forms were confidential under the Disease Prevention and Control Law of 

1995, Act of April 23, 1956, P.L. (1955) 1510, as amended, 35 P.S. §§ 521.1-521.21. R.R. 099a109a. Requester did not appeal the OOR’s determination. 
18

whether using a “custom query” to extract data from the database constitutes a new 

record for purposes of the RTKL. This second question is complicated by the 

electronic nature of modern record-keeping. As explained supra, we have held that 

merely extracting records from an electronic database is not tantamount to the 

creation of a new record. Cole. We have, however, long held that an agency is not 

required to manipulate or reorganize existing data when responding to a records 

request. Id. For purposes of this matter, we must determine which side of the line

running a “custom query” falls on. In other words, is a custom query of an existing 

database merely extracting data? Or is running a custom query the equivalent of 

manipulating and reorganizing existing data to create a new record?

As to the first question, this Court concludes that the Department has 

conceded that the requested information exists in the iCMS database. In her 

attestation, Ms. Trego stated that “[b]eginning on January 1, 2020, NAS case report 

data have been reported to the Bureau of Family Health, where case data are 

integrated with newborn screening data reported to the Bureau, in an electronic 

database known as the internet case management system (iCMS).” Trego 

Attestation ¶ 11, R.R. 085a. There is no question that the iCMS database exists.

We must next address whether the use of a custom query to extract data 

from the iCMS database constitutes the creation of a new record. In her attestation, 

Ms. Trego explained that “[a]ny information beyond the NAS Annual Report, 

specifically including the data underlying the reports that are maintained by the 

Department (NAS Database) are not aggregated but rather consist of individual case 

reports of NAS.” Trego Attestation ¶ 8, R.R. 084a. In regard to the database, she 

further explained: 
19

16. As a result, the NAS dataset in iCMS consists of 

thousands of individual patient records consisting of 

detailed biographical, demographic, and medical 

information gleaned from individual iCMS NAS case 

report forms. 

17. In order to provide the Requester with data that are 

[sic] more granular than what is contained in the 2020 

NAS Annual Report while still upholding patient 

confidentiality, records in the NAS database would have 

to be completely reconfigured. This would amount to 

generating new custom dataset that would ultimately omit 

or redact much of the information that is collected on the 

NAS case report form and maintained by the Bureau 

within the Department. 

18. To provide the underlying data rather than the 

requested statewide aggregated data would require the 

Department to create, compile, or reorganize records in a 

format that the Bureau does not currently maintain for 

purposes of carrying out its public health functions. 

Id. ¶¶ 16-18, R.R. 085a-086a. Ms. Trego’s attestation establishes that the iCMS 

database categorizes and stores the information received from the Case Report 

Forms by individual patient. The Request at issue here seeks aggregate data. While 

the Department manipulates and compiles data from the iCMS in creating the annual 

NAS reports, it established that it does not query the database, i.e., the individual 

patient forms, for the specific items sought in the Request, and aggregate data 

reflecting those specific categories does not exist. 

On these facts, the Court concludes that running a custom query 

through the iCMS database is not, as Requester implies, a mere extraction of 

information from an electronic database, but rather would require the Department to 

create a new record that does not otherwise exist in violation of Section 705 of the 

RTKL. The facts present here are distinct from those in Cole, where this Court 

directed the disclosure of information “but only in the form in which it is available.” 
20

Cole, 52 A.3d at 541. Here, the Department established that aggregate data of the 

information sought in the Request is not in any available form and would require a 

custom query to manipulate existing records and compile it in a new form. On these 

specific facts, we hold that requiring the Department to run a custom query through 

the iCMS database is tantamount to the creation of a new record under Section 705 

of the RTKL, and thus not required.

7

CONCLUSION

For these reasons, the OOR’s Final Determination is affirmed. 

_____________________________________

MATTHEW S. WOLF, Judge

7 Based on this disposition, Requester is not entitled to attorneys’ fees and costs. 65 P.S. § 

67.1304(a).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Center for Investigative Reporting :

d/b/a Reveal, :

 Petitioner :

 :

 v. : No. 227 C.D. 2023

:

Pennsylvania Department of Health :

(Office of Open Records), :

 Respondent :

O R D E R

AND NOW, this 5

th day of June 2024, the February 6, 2023 Final 

Determination of the Office of Open Records is AFFIRMED.

_____________________________________

MATTHEW S. WOLF, Judge