IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ralph Duquette, :

: No. 1511 C.D. 2015

Petitioner : Submitted: March 18, 2016

:

v. :

:

Pennsylvania Historical :

and Museum Commission, :

:

Respondent :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: June 21, 2016

Ralph Duquette (Requester), pro se, petitions for review from a final 

determination of the Office of Open Records (OOR) that denied in part and 

dismissed in part for lack of jurisdiction his appeal from the Pennsylvania 

Historical and Museum Commission’s (PHMC) response to his request under the 

Right-to-Know Law (RTKL).

1

 Requester argues OOR erred by: determining he 

modified his request on appeal; not conducting an in camera review or requiring 

PHMC to substantiate its claim to exemptions; and, setting a duplication fee that is 

higher than the prevailing rate. Upon review, we affirm.

 

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

Requester filed a broad request for records seeking to inspect any and 

all documents related to a proposed shale gas pipeline (pipeline) to be located 

through multiple municipalities in Schuylkill, Lebanon, and Lancaster Counties. 

Reproduced Record (R.R.) at 1a-2a. Requester sought communications between 

PHMC and the pipeline’s parent company, the Williams Pipeline Company d/b/a 

Transco Pipeline Company, and its contractors. Id. More particularly, the request 

sought correspondence, internal communications, calendar entries, minutes of 

meetings, investigations, and all other documents, including maps, pertaining to 

the pipeline since January 1, 2013. Id. 

PHMC partially denied the request on the basis certain records are 

exempt from public disclosure under Section 708(b) of the RTKL, 

65 P.S. §67.708(b). Specifically, it claimed some records reflected the internal, 

predecisional deliberations of PHMC’s employees and officials, which are exempt 

under Section 708(b)(10), 65 P.S. §67.708(b)(10), or identified the locations of 

archeological sites, which are exempt under Section 708(b)(25), 65 

P.S. §67.708(b)(25).

However, PHMC granted access to 2,154 pages of responsive records. 

PHMC provided contact information to set up an appointment for inspection and 

noted that photocopies of the records would cost 50 cents per page. PHMC

explained it was entitled to charge 50 cents per page to copy records pursuant to 

the History Code, 37 Pa. C.S. §§101-906.

Requester appealed to OOR challenging the reasonableness of the 

copying fees and requesting a fee reduction or waiver. With respect to the 

exempted records, Requester stated he “did not ask for these specific documents.” 

R.R. at 7a. However, to the extent such documents related to his request, he 
3

demanded production. Id. Lastly, Requester sought sanctions against PHMC for 

its “bad faith, non-specific, global objection.” Id. at 8a. 

OOR invited the parties to supplement the record, and it directed 

PHMC to notify third parties of their ability to participate in the appeal pursuant to 

Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c). PHMC submitted a position 

statement, asserting the History Code authorizes it to set rates for the reproduction 

of its records. PHMC also argued Requester cannot modify his RTKL request on 

appeal. 

As for the fees, OOR determined the History Code does not apply to 

the requested records. OOR is authorized to establish fees for duplication by 

photocopying for the Commonwealth and local agencies. Section 1307 (b)(1)(i) of 

the RTKL, 65 P.S. §67.1307(b)(1)(i). Pursuant to this authority, OOR approved 

fees up to 25 cents per page for standard-sized, black and white records. 

To the extent Requester argued PHMC should waive any copying 

charges, OOR determined it lacked jurisdiction over fee waivers. OOR recognized 

Section 1307(f) of the RTKL, 65 P.S. §67.1307(f) permits an agency to waive fees 

when the agency deems it is in the public interest to do so. But OOR explained the 

waiver of fees is not denial of access and there is no right of appeal to OOR 

challenging a denial of a fee waiver request. 

In addition, OOR concluded an RTKL request cannot be modified on 

appeal. OOR’s review is confined to the request as written. OOR advised this 

determination does not preclude Requester from filing another request with PHMC 

for this information. 

Finally, OOR determined it lacked jurisdiction to impose bad faith 

sanctions. OOR explained that, although it may make findings of bad faith, only 
4

the courts have the authority to impose sanctions on agencies. For these reasons, 

OOR denied in part and dismissed in part Requester’s appeal. 

Requester then petitioned this Court for review.

2

 Requester presents a 

myriad of issues, which we have reframed and reordered for purposes of clarity. 

First, Requester contends OOR erred by determining he modified his request on 

appeal. Next, he argues OOR erred by allowing PHMC to deny access to records 

based on the exemptions without requiring PHMC to substantiate its claim through 

affidavits or conducting an in camera review of the records to determine the 

validity of the claimed exemptions. He also claims OOR erred or acted arbitrarily 

in determining a specific, non-prevailing set fee for duplication under Section 

1307(b). In addition, he asserts: PHMC failed to notify third parties, including 

property owners directly impacted by the pipeline, of their ability to participate in 

the appeal; OOR’s interim guidelines violated his due process and equal protection 

rights by requiring him to file supplemental information; OOR erred by not 

sufficiently describing the records PHMC disclosed; and, OOR’s final 

determination is not supported by substantial evidence. 

1. Request Modification

First, Requester contends OOR erred by determining that he modified 

his request on appeal. We disagree.

RTKL requests must be sufficiently specific and include timeframes

and types of documents sought. Section 703 of the RTKL, 65 P.S. §67.703; Askew 

 

2

This Court has jurisdiction over final determinations involving Commonwealth 

agencies, such as the Commission. Section 1301(a) of the RTKL, 65 P.S. §67.1301(a). 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).
5

v. Office of the Governor, 65 A.3d 989, 992 (Pa. Cmwlth. 2013). Requesters 

cannot change their RTKL requests on appeal. Pennsylvania State Police v. Office 

of Open Records, 995 A.2d 515, 516 (Pa. Cmwlth. 2010). OOR is confined to the 

original request as written. Id. 

Here, Requester filed a request seeking “broad categories of 

documents dated since January 1, 2013” related to communications about the 

pipeline. R.R. at 1a. Specifically, he requested:

any and all emails sent to/from any [PHMC] email 

account, PHMC-related email account, or any personal 

email address of any PHMC employee and/or official -

elected or appointed. . . .

 Any and all documents, without restriction, related 

to any types of communications transacted via 

private email account, the record created on the 

private email account becomes part of the public 

record. 

 Any and all documents, without restriction, related 

to any types of communications about, to, from 

and with Williams Pipeline Company, d/b/a 

Transco Pipe Line Company (in any of their 

corporate forms) and/or their contractors and/or 

agents and/or others acting on their behalf, related 

to locating, building, placing and/or replacing, 

maintaining, repairing, transporting, surveying for, 

paying for, etc., natural gas and/or gasoline and/or 

propane and /or other hydrocarbons within and/or 

near Schuylkill County, Lebanon County and/or 

Lancaster County.

 Any and all copies of correspondence (including 

but not limited to email, fax, letters, etc.) and notes 

thereof, from and to Williams Pipeline (in any of 

their corporate forms) and/or their contractors 

and/or agents and/or others acting on their behalf. 

This category includes correspondence sent to/ 
6

from any township employee and/or official -

elected or appointed - either to their attention at 

their respective PHMC Office or to their home 

address.

 Any and all internal communications (on paper or 

in electronic form) evidencing discussions between 

PHMC staff, departmental staff, office staff and 

other persons employed by or on behalf of PHMC 

re the proposed Williams pipeline and issues 

related thereto.

 Any and all calendar entries showing and/or 

indicating meeting dates and times with 

representatives and/or agents of Williams Pipeline 

(in any of their corporate forms).

 All minutes of meetings between PHMC personnel 

and/or agents and Williams-related entities since 

January 2013.

 All documents related to PHMC investigations 

and/or issues - state and/or federal - related the 

proposed Williams pipeline and any of the 

municipalities along the proposed route in the 

above-specified counties, since January 2013.

 Any and all other documents, including maps of 

Williams' proposed pipeline routes, which might 

be responsive to this request.

* * *

This request is limited to the placement of the Williams 

pipeline in the above-specified counties.

R.R. at 1a-2a.

In response to his request, PHMC identified 4,620 pages of records. 

PHMC granted access to 2,154 pages of records; however, PHMC denied access to 

2,466 pages of records having identified them as exempt from disclosure under 
7

Section 708(b) of the RTKL. The records fell into three categories: (1) records of 

archeological sites (135 pages), which PHMC asserted were exempt under Section 

708(b)(25) (archeological site); (2) records of determinations of eligibility (DOE) 

(348 pages), which it claimed were exempt under Section 708(b)(10) 

(predecisional deliberation); and, (3) Phase I Cultural Resources Survey 

Archeological Report (Report) (2,161 pages), which it also claimed was exempt 

under Section 708(b)(10). 

Significantly, in his appeal to OOR, Requester expressly and 

repeatedly stated he did not request any of the undisclosed records. R.R. at 7a. 

Nevertheless, he then attempted on appeal to modify his request to obtain them. 

Id. With regard to the archeological records, he stated he “did not ask for these 

specific documents,” but then he requested the documents “to the extent the 

undefined ‘archeological sites’ are commonly known or would be known to 

anyone involved in historical research.” Id. As for DOE records, he stated he “did 

not ask for this specific type of document; however to the extent documents related 

to any DOE effort were exchanged between PHMC and any private entity, 

including notes and minutes of meetings . . .” he demanded their production. Id. 

Finally, with regard to the Report, he stated he “did not ask for this document,” but 

again requested it “to the extent documents related to any DOE effort were 

exchanged between PHMC and any private entity, including notes and minutes of 

meetings . . . .” Id. at 7a-8a.
8

Upon review, Requester did not request the undisclosed documents. 

Therefore, OOR properly limited its review to the original request as written. It 

did not consider Requester’s modified request on appeal.3 

Moreover, because Requester admits that he did not request these 

records, he cannot credibly claim that PHMC improperly withheld them. 

Consequently, any issues relating to these undisclosed records, i.e., whether OOR 

erred by not conducting an in camera review or requiring PHMC to substantiate its 

claims to exemption, are not properly before us at this time and will not be 

addressed in this appeal. 

2. Copying Fees

Next, Requester claims OOR erred or acted arbitrarily in authorizing a 

duplication fee of 25 cents per page pursuant to Section 1307(b)(1)(i) of RTKL. 

According to Requester, this fee conflicts with the “prevailing fees” language in 

Section 1307(b)(2). Specifically, he claims a copying charge of 25 cents per page 

is excessive and exceeds the prevailing fee for comparable duplication services 

charged by local business entities. 

Pursuant to Section 1307(b)(1)(i) of the RTKL, OOR is authorized to 

establish fees for duplication by photocopying for Commonwealth agencies and 

local agencies. Such “fees must be reasonable and based on prevailing fees for 

comparable duplication services provided by local business entities.” Section 

1307(b)(2) of the RTKL. This Court has found that 25 cent per page charge is 

reasonable. Weiss v. Williamsport Area School District, 872 A.2d 269, 272 (Pa.

Cmwlth. 2005); see also State Employees' Retirement System v. Office of Open 

 

3 As the OOR noted, there is nothing prohibiting Requester from filing another request 

with the PHMC.
9

Records, 10 A.3d 358, 361 (Pa. Cmwlth. 2010) (SERS); Baravordeh v. Borough 

Council of Prospect Park, 699 A.2d 789, 791 (Pa. Cmwlth. 1997), appeal denied, 

725 A.2d 183 (1998).

Pursuant to this authority, OOR approved copying fees of up to 25

cents per page for standard-sized, black and white records. Other than asserting 

that some local business entities may charge less, Requester offered nothing to 

substantiate his claim that 25 cents per page is not the prevailing fee charged by 

local business entities or that the fee is unreasonable. As this Court previously 

upheld the fee as reasonable, we conclude OOR did not err in authorizing PHMC 

to charge a fee of up to 25 cents per page.

4

 

3. Waiver 

Finally, Requester presents numerous other issues in the statement of 

questions involved portion of his brief. Petitioner’s Brief at 5-7. He asserts: 

PHMC failed to notify third parties, including property owners directly impacted 

by the pipeline, of their ability to participate in the appeal; OOR’s interim 

guidelines violated his due process and equal protection rights by requiring him to 

file supplemental information; OOR erred by not sufficiently describing which 

records PHMC disclosed; and, OOR’s final determination is not supported by 

substantial evidence. However, Requester does not adequately develop these 

issues in his brief. Consequently, these issues are waived. See Pa. R.A.P. 2119(a) 

(“The argument shall be divided into as many parts as there are questions to be 

argued; and shall have at the head of each part . . . the particular point treated 

therein, followed by such discussion and citation of authorities as are deemed 

 

4 We note that, at this point in time, Requester has not requested copies and PHMC has 

not charged any fees for duplication. 
10

pertinent.”); Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1998), cert.

denied, 526 U.S. 1070 (1999) (failure to develop issue in appellate brief results in 

waiver). 

Accordingly, we affirm. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ralph Duquette, :

: No. 1511 C.D. 2015

Petitioner : 

:

v. :

:

Pennsylvania Historical :

and Museum Commission, :

:

Respondent :

O R D E R

AND NOW, this 21st day of June, 2016, the final determination of the 

Office of Open Records, dated July 22, 2015, is AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge