IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Office of Attorney :

General, :

Petitioner :

:

v. : No. 2096 C.D. 2014

: Argued: September 16, 2015

The Philadelphia Inquirer, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

OPINION BY

PRESIDENT JUDGE PELLEGRINI FILED: November 19, 2015

The Pennsylvania Office of Attorney General (OAG) petitions for 

review of a determination of its designated Right-to-Know Law (RTKL)

1 Appeals 

Officer (Appeals Officer)2finding that the receipt and transmission of 

pornographic emails is an “activity” because it memorializes an employee’s

improper use of time and resources making it a “public record” within the meaning 

 

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

2

Section 503(d)(1) of the RTKL provides, in pertinent part, that the Attorney General, 

rather than the Office of Open Records, shall designate an appeals officer to hear appeals from 

the OAG’s denial of a record’s request under the RTKL. 65 P.S. §67.503(d)(1).
2

of Section 102 of the RTKL, 65 P.S. §67.102. Section 102 defines “public record” 

as “[a] record ... of a Commonwealth ... agency,” and defines “record” as 

“[i]nformation ... that documents a transaction or activity of any agency that is 

created, received, or retained pursuant to law or in connection with a transaction, 

business or activity of the agency.” Id.

In August 2014, Amy Warden, a staff writer for the Philadelphia 

Inquirer (Requestor), submitted a RTKL request to the OAG seeking copies of all 

emails that were “of a personal nature and involve[] pornographic or otherwise 

inappropriate material” to or from the accounts of three former OAG employees3

from 2009 until they left the OAG in late 2012 or early 2013, including “all 

recipients of the email chains that shared in this email and include the actual 

emails.” (Reproduced Record (RR) at 1). Requestor later amplified the request to 

include 11 named employees4and all “former and current office staffers and other 

former and current state officials” from 2005 to the present and sought emails that 

violated OAG policy which prohibited using computers to access, download or 

distribute sexually suggestive pornographic or obscene material. (Id. at 5). The 

request again included “all participants in the email chains that shared in this email 

– even if that includes several hundred people – and include the actual emails, from 

their point of origin on.” (Id.).

 

3

Frank Fina, Marc Costanzo and Patrick Blessington.

4

Frank Fina, Marc Costanzo, Patrick Blessington, Chris Abruzzo, Chris Carusone, Kevin 

Harley, Frank Noonan, James Barker, Bruce Beemer, Louis De Titto and Ellen Granahan.
3

The OAG’s designated right-to-know Officer denied the request for 

the personal emails determining that:

 because a request seeking emails of a personal 

nature or that “are professionally inappropriate” was not 

sufficiently specific description as required by Section 

703 of the RTKL5for the OAG to search and identify 

subject to the request. Moreover it was not sufficiently 

specific because in defining “pornographic,” it relied on 

the definition of that term in Black’s Law Dictionary (6th

Ed.) to discern if some responsive documents exist;

 the request was burdensome because it “seeks 

records over an almost ten year period of time between a

large universe of individuals;

 to the extent the requested “pornographic” emails 

exist, they were not disclosable “records” under the 

RTKL because their contents do not “document a 

transaction or activity” of the OAG and they were not 

“created, received, or retained” by the personnel in 

connection with their position as public officials to 

further OAG business; and

 even if the emails are “records,” they are exempt 

from disclosure under the non-criminal investigation 

exemption in Section 708(b)(17)(vi)(A) of the RTKL6

“because they have now become part of an ongoing 

internal investigation” of the violation of OAG policies 

on the appropriate use of its equipment that would reveal 

the progress or result of this investigation.

 

5

65 P.S. §67.703. Section 703 states, in relevant part, that “[a] written request should 

identify or describe the records sought with sufficient specificity to enable the agency to 

ascertain which records are being requested....”

6

65 P.S. §67.708(b)(17)(vi)(A). Section 708(b)(17)(vi)(A) exempts records “of an 

agency relating to a non-criminal investigation including ... a record that, if disclosed, would ... 

[r]eveal the institution, progress or result of an agency investigation....”
4

Requestor appealed to the OAG’s designated Appeals Officer.

The Appeals Officer initially determined that because the request for 

“personal” or “inappropriate” emails was not sufficiently specific under Section 

703 of the RTKL for the OAG to respond to the request, the OAG did not have to 

comply with that portion of the request. However, she found that the request for 

“pornographic” emails was sufficiently specific to allow the OAG to determine 

which emails fall into that category. The Appeals Officer found that while the 

requested time period and universe of names to be searched is “expansive,” there is 

no basis in the record to conclude that the request would be an unreasonable 

burden on the OAG because the OAG will know the records sought with sufficient 

specificity when limited to pornographic emails.

The Appeals Officer also determined that the request could not be 

denied on the basis that the emails are not a “record” or “public record.” She noted 

that “[n]ot all emails are records” and that this Court “has held that not all emails 

are accessible under the RTK[L] simply because they evidence ‘communications 

of a public official.’ Such a broad construction would ignore those decisions 

emphasizing content and interpreting ‘records’ in the context of emails.” (RR at 

31) (citations omitted). Finding that while the requested emails do not prove, 

support or evidence a transaction in which the OAG is engaged, the use of emails 

to transmit pornographic material is an “activity” documenting an employee’s

improper use of an agency’s time and resources making it a “record” within the 

meaning of the RTKL. (Id. at 32-33).
5

The Appeals Officer further determined that the non-criminal 

investigation exemption of Section 708(b)(17)(vi)(A) required the OAG “to 

demonstrate that ‘a systematic or searching inquiry, a detailed examination, or an

official probe’ is being conducted regarding a noncriminal matter.” (RR at 34) 

(citation omitted). She explained that the OAG did not offer any affidavits to 

support the conclusory statements of the right-to-know Officer that the emails may 

be relevant to an investigation of OAG policies and the appropriate use of OAG 

equipment which would reveal the progress or result of the OAG investigation. 

She noted, “In fact, there is no evidence of an actual investigation except for the 

statement of the RTK Officer.” (Id. at 35). The Appeals Officer stated that it was 

the OAG’s burden to rebut the presumption of “public record” in Section 305(a) by 

a preponderance of the evidence and that “a bold statement made by the RTK 

Officer in her letter is not sufficient” because “it does not constitute evidence—

much less a preponderance—to establish either that an ongoing investigation is in 

process or that the requested emails bear any relationship to such an investigation.” 

(Id.).

As a result, the Appeals Officer directed the OAG to produce copies 

of all email traffic involving pornographic material to and from the work accounts 

of current and former OAG office staffers and other current and former state 

officials from 2005 to the present, including all participants in the email chains and 

including the actual emails from their point of origin on. The OAG then filed the 

instant petition for review.
6

The core issue on appeal7is whether personal emails are public 

records within the meaning of the RTKL so that the agency is compelled to 

produce them under a RTKL request because they document the conduct of that

agency.

In making a determination that the information sought is a “public 

record,” a requestor must establish that the information sought falls within the 

definition of a “record” of the agency as defined in Section 102 the RTKL. Office 

of Governor v. Bari, 20 A.3d 634, 640 (Pa. Cmwlth. 2011). To establish that it is a 

public record, “the requestor must meet a two-part test: First, the information must 

‘document a transaction or activity of the agency.’ Recently, this Court ... 

interpreted ‘documents’ to mean ‘proves, supports [or] evidences.’ Second, the 

information must be ‘created, received, or retained’ in connection with the activity 

of the agency.” Barkeyville Borough v. Stearns, 35 A.3d 91, 94-95 (Pa. Cmwlth. 

2012) (citation omitted).

We addressed whether private emails using a public email address are 

public records in Easton Area School District v. Baxter, 35 A.3d 1259 (Pa. 

Cmwlth.), appeal denied, 54 A.3d 350 (Pa. 2012). In that case, the requestor

sought all emails sent from and received by the email addresses of nine school 

board members, a school district superintendent, and the general school board for a 

one-month period. The school district denied the request on various grounds, but 

 

7

This Court exercises de novo review of appeals officers’ decisions under the RTKL 

pertaining to Commonwealth agencies. Meguerian v. Office of the Attorney General, 86 A.3d 

924, 927 n.4 (Pa. Cmwlth. 2013).
7

the Office of Open Records reversed and directed the school district to provide all 

responsive emails subject to the redaction of “personally identifiable information.”

On appeal, the trial court held that because the emails were sent and received from 

school district email addresses, were stored on the school district’s server, and 

were the school district’s property under its “Acceptable Use Policy,” they were 

public records subject to disclosure under the RTKL subject to the appropriate 

redactions.

On appeal to this Court, the school district again argued, inter alia, 

that the emails to or from individual school board members’ email addresses do not 

qualify as public records subject to disclosure under the RTKL. We examined case 

law from other jurisdictions8and concluded:

 

8 We do not know of any state that has reached the conclusion that the contents of 

personal emails using a government email account are public records. To the contrary, all of the 

states that have addressed the issue have concluded that the contents of government employees’

personal emails are not information about the affairs of government and are, therefore, not open 

to the public under their respective open records acts. In Easton Area School District, 35 A.3d at 

1263, we cited the following decisions from other states: 

In Denver Publishing Co. v. Board of County 

Commissioners of Arapahoe, 121 P.3d 190 (Colo. 2005), the 

Colorado Supreme Court analyzed a trial court order that required 

disclosure of all email communications between a county recorder 

and assistant chief deputy. The Court explained that “[t]he simple 

possession, creation, or receipt of an e-mail record by a public 

official or employee is not dispositive as to whether the record is a 

‘public record.’ The fact that a public employee or public official 

sent or received a message while compensated by public funds or 

using publicly-owned computer equipment is insufficient to make 

the message a ‘public record.’” Id. at 199. It held that to be public 

record, the requested emails had to have “a demonstrable 

connection to the performance of public functions.” Id. at 203.

(Footnote continued on next page...)
8

We agree with those cases that emails should not 

be considered “records” just because they are sent or 

received using an agency email address or by virtue of 

their location on an agency-owned computer, even 

where, as here, the agency has a policy limiting use of 

computers to official business and stating that users have 

no expectation of privacy. That is so because a record is 

 

(continued...)

In Florida v. City of Clearwater, 863 So. 2d 149 (Fla.

2003), the Florida Supreme Court held that “private documents 

cannot be deemed public records solely by virtue of their 

placement on an agency-owned computer. The determining factor 

is the nature of the record, not its physical location.” Id. at 154. In 

that case, the city had a “Computer Resources Use Policy” similar 

to the School District’s "Acceptable Use Policy.” The Court held 

that such a policy “cannot be construed as expanding the 

constitutional or statutory definition of public records to include 

‘personal’ documents.” Id.

The Court of Appeals of Michigan similarly held in Howell 

Education Association, MEA/NEA v. Howell Board of Education, 

287 Mich. App. 228, 789 N.W.2d 495[, appeal denied, 488 Mich. 

1010, 791 N.W.2d 719] (2010), that a public school’s possession 

and retention of electronic data in its email system did not render 

teachers’ private emails public records subject to disclosure. The 

court emphasized that this principle applies even where a teacher 

agrees to and subsequently violates a school district’s acceptable 

use policy for its email system. Id. at 503.

Finally, in Schill v. Wisconsin Rapids School District, 327 

Wis. 2d 572, 786 N.W.2d 177 (2010), the Wisconsin Supreme 

Court examined a request for all emails of public school teachers 

sent and received via school district email accounts on school 

district-owned computers. Ruling that such emails were not 

records under Wisconsin’s Public Records Law, the Court stated 

that “while government business is to be kept open, the contents of 

employee's personal emails are not a part of government business”

simply because they are sent and received on government email 

and computer systems. Id. at 183. [(Footnotes omitted)].
9

“information ... that documents a transaction or activity 

of an agency,” and personal emails that do not do so are 

simply not records.

Easton Area School District, 35 A.3d at 1264. See also Meguerian, 86 A.3d at 930 

(“For emails to qualify as records ‘of’ an agency, we look to the subject-matter of 

the records. Emails are not considered records of an agency simply because they 

are sent or received using an agency email address or by virtue of their location on 

an agency computer. The emails must document a transaction or activity of the 

responding agency.”) (citations omitted).

The requirement that an email must document a “transaction or 

activity of the agency” is essential for a record to be a public record. This is 

illustrated by our decision in Mollick v. Township of Worcester, 32 A.3d 859 (Pa.

Cmwlth. 2011). In that case, we held that notwithstanding the fact that the emails 

were sent on personal computers using personal email addresses and on personal 

time, nonetheless, the emails sent between township supervisors were “records”

under the RTKL because those records documented a transaction or activity of the 

township. 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 in determining whether the email is a “public record.”

Acknowledging those cases, Requestor contends that while the 

requested emails do not document an agency transaction or activity per se, they 

become a public record because they document a violation of agency policy and 
10

that transforms them into an “activity of the agency” and makes them a public 

record under the RTKL.

9

If that reasoning were to be adopted, that would mean 

that if an employee sends what are purportedly pornographic emails, uses the 

government email for business, or just overuses the email system, those emails 

would also be subject to disclosure. Moreover, that reasoning is broad enough to 

encompass a request for all personal emails on the basis that the requestor wants to 

know if the agency is enforcing its policy to make sure that violations do not occur. 

If we were to adopt that view, then no personal emails would ever be exempt from 

disclosure because that principle is sufficiently broad to encompass all personal 

emails, and they would all have to be disclosed to determine whether an agency is 

properly enforcing its fair use email policy.

In this case, the records sought are emails that were either sent to or 

from an OAG email address or retained by the recipient in violation of OAG 

policy. The fact that they were sent, received or retained in violation of OAG 

policy does not transform what was not a public record into a public record under 

the RTKL. For emails to qualify as records “of” an agency, we only look to see if 

the subject-matter of the records relate to the agency’s operations. None of the 

 

9

It making that argument, it relies on our decision in Johnson v. Pennsylvania 

Convention Center Authority [(PCCA)], 49 A.3d 920 (Pa. Cmwlth. 2012). In that case, the 

requestor sought access to records which relate to a “labor management agreement” executed by 

the PCCA and all trade unions which provided labor at the Convention Center. Reversing the 

finding that those public records were exempt from disclosure, we stated, “The public has the 

right to know who is performing services for the government agency, the scope of services, the 

disputes concerning the scope of services, the costs relating to those services, and the resolution 

of disputes concerning those services.” Id. at 926. Johnson is inapplicable because there was no 

dispute that the requested records documented a “transaction” or “activity” of the agency as in 

this case, but only whether the records were exempt.
11

requested emails remotely relate to OAG operations or any “transaction” or 

“activity” of that agency. The emails only related to personal activity of 

individuals.10 While the public has the right to access “records” relating to OAG 

employees and its “transactions” or “activities,” the RTKL does not compel 

disclosure of all OAG emails solely on the basis that they violate OAG policy. As

a result, the requested emails are not disclosable as records under the RTKL 

merely because they were sent or received using an OAG email address or by 

 

10 The dissent contends that if an activity, in this case sending or receiving emails, is so 

pervasive and widespread within an agency, an otherwise non-governmental activity may 

become an activity of that agency. Under this approach, there would have to be fact-finding to 

determine when it crossed the line to determine whether the number of emails went from merely 

frequent to “pervasive and widespread.” No one person would know where that line is crossed 

because the “pervasive and widespread” standard is nebulous in itself, and no one person could 

know how many other people are receiving the emails of a similar type. For example, if one 

person receives 5 or 10 or 20 emails regarding bar association functions, does it then become 

“pervasive and widespread” when 10 or 20 or 50 people in an agency receive the emails. Simply 

put, the standard is simply unworkable.

Moreover, a non-governmental activity is not transformed into a governmental activity 

just because it is “pervasive and widespread.” A governmental activity is what an agency and its 

employees do to carry out statutory duties and advance the agency’s mission. If governmental 

employees gamble at work, tell off-color jokes around the water cooler, or email each other 

concerning fantasy football or the NCAA tournament at work in a “pervasive and widespread”

manner, that does not transform these activities into a governmental activity. (Under the 

dissent’s view, if an employee sustained carpel tunnel syndrome from typing all of the 

“pornographic” emails, the employee could seek workers’ compensation benefits because he or 

she was engaged in a governmental activity.) To the contrary, each of those employees is subject 

to discipline because they are not using their worktime to engage in governmental activities, but 

are spending time carrying out their personal business. Simply put, just because “fool’s gold” is 

“pervasive and widespread” does not transform it into gold.

In any event, if the dissent’s view is adopted and the private emails at issue are 

transformed into public records, Section 708 (b)(17)(6) of the RTKL, 65 P.S. §67.708 (b)(17)(6),

provides that public records need not be released if they “constitute an unwarranted invasion of 

privacy.”
12

virtue of their location on an OAG computer in violation of OAG policy. Easton 

Area School District.

11

One final comment that is necessary given all of the statements that 

the Attorney General has made regarding the release of this information. We want 

to make clear that we are only stating that the RTKL does not compel her to 

release the requested emails and, while there may be other legal reasons that 

prevent her from doing so, nothing in this opinion precludes her from releasing the 

emails.

Accordingly, the Appeals Officer’s determination requiring OAG to 

provide copies of all email traffic involving pornographic material to and from 

OAG email addresses of former and current office staffers and state officials from 

2005 to the present, including all participants in the email chains that shared in the 

emails, including the actual emails from their point of origin on, is reversed.

___________________________________

DAN PELLEGRINI, President Judge

 

11 Because we conclude that the requested emails do not constitute “records” under the 

RTKL, we need not determine the application of the exemption of Section 708(b)(17)(vi)(A) to 

the requested documents.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Office of Attorney :

General, :

Petitioner :

:

v. : No. 2096 C.D. 2014

:

The Philadelphia Inquirer, :

Respondent :

O R D E R

AND NOW, this 19th day of November, 2015, that portion of the 

Final Determination of the Office of Attorney General Appeals Officer dated 

October 23, 2014, at SR-59467-MF2T, denying the disclosure of the requested 

emails of the Pennsylvania Office of Attorney General (OAG) is affirmed; that 

portion of the Final Determination requiring the disclosure of the requested OAG 

emails is reversed.

___________________________________

DAN PELLEGRINI, President Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Office of Attorney :

General, :

Petitioner :

 :

v. : No. 2096 C.D. 2014

 : Argued: September 16, 2015

The Philadelphia Inquirer, :

Respondent :

BEFORE: HONORABLE DAN PELLEGRINI, President Judge

HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE ANNE E. COVEY, Judge

DISSENTING OPINION BY

JUDGE LEADBETTER FILED: November 19, 2015

I agree in large part with the well-considered majority opinion, and 

believe it accurately states the general rule which will control the vast majority of 

cases. I do believe, however, that content is not the only factor to be considered. 

Rather, I would say that if communications regarding a particular subject matter 

are shown to be pervasive and widespread within an agency, they may reach the 

level of being an activity of that agency. Showing that such communications have 

reached that level will, no doubt, be a difficult burden to meet and, where the 

content is purely personal in nature, an exceedingly rare circumstance.
BBL-2

Nonetheless, where a requester can meet that burden, I believe the 

information should be subject to disclosure. Accordingly, I would remand to the 

Appeals Officer to allow the Inquirer to attempt to meet this burden.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

Judge