IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas W. Olick, :

 Appellant :

:

v. :

: No. 995 C.D. 2020

Easton Suburban Water Authority : Submitted: August 27, 2021

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: December 3, 2021

Thomas W. Olick (Olick) appeals from the September 10, 2020 order 

of the Northampton County Court of Common Pleas (trial court) that affirmed the 

July 25, 2018 Final Determination of the Pennsylvania Office of Open Records

(OOR), which determined that the Easton Suburban Water Authority (Water 

Authority) complied with Pennsylvania’s Right-to-Know Law1(RTKL), in response 

to Olick’s June 27, 2018 records request. Upon review, we affirm.

Olick filed a request with Water Authority pursuant to the RTKL on 

June 27, 2018 (Request). See Trial Court Order of Court filed September 10, 2020 

(Trial Court Order), at 1, Reproduced Record (R.R.) at 140. In the Request, Olick 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-.3104.
2

sought certain documents and responses to various written questions.2 See Trial 

Court Order at 1, R.R. at 140. On July 3, 2018, Water Authority produced numerous 

documents responsive to the Request. See Trial Court Order at 1, R.R. at 140.

2 As drafted, the Request takes the form of a hybridization of a set of interrogatories and a 

request for production of documents served in the traditional discovery process by parties to civil 

lawsuits. Specifically, the Request seeks the following:

DOCUMENTS AND INFORMATION REQUESTED

1. For the period identified noted above in paragraph H to the 

present, please produce any and all Documents and Information 

related to any construction, repairs and/or other work YOU 

performed on the 1200 block of Chidsey Street, Easton, Pa. 18042, 

which shall include but not be limited to the areas adjacent to the 

Requestor’s Properties. Those DOCUMENTS and Information 

should include but not be limited to: Documents and Information 

created or relied upon by YOU; YOU received and/or of which 

YOU had received a copy thereof; that is in any way related to the 

construction and/or subsequent reconstruction of YOUR water 

transportation pipes, related roadways, sidewalks and/or adjacent 

land on the 1200 block of Chidsey Street. Your production shall 

include but not be limited to any and all Documents and Information 

related to any permit that YOU submitted to any representative of 

the City of Easton for the above mentioned activities: and/or any and 

all subsequent inspection(s) and/or approval(s) You received 

regarding the aforementioned activities on or near those 

aforementioned roadways, sidewalks and/or adjacent land. Your 

answer shall also include, but not limited to YOUR recent relevant 

removal of a portion of the water transportation pipes, sidewalk 

and/or roadways in the vicinity of Requestor’s Properties in the 1200 

block of Chidsey Street as was discussed during our 6/26/18 

meeting. In Your Answer, please include all Documents and 

Information related to the stability of any tress in the vicinity of the 

areas where YOU engaged in the aforementioned activities.

2. Please produce all Documents and Information which identify 

what City of Easton Codes (and/or other verbal or written 

understandings You have with the City of Easton and/or its 

employees) that You relied upon regarding the manner in which You 

were required to remove, Reconstruct and/or follow with regards to 

YOUR aforementioned activities, including but not limited to: a) 

any repair of any sidewalks or land in front of Requestor’s Properties 
3

(including those which relate to the manner or guidelines You were 

require to adhere to when working near any of Requestor’s 

Properties), including but not limited to the replacement of any 

water transportation pipes near the aforementioned properties. If in

Your Answer, You contend that You are/were exempt, in part or 

whole, or in any other manner from complying with any/all City 

Code or Ordinance (including but limited to the related Sidewalk 

and/or Shade Tree Codes and Ordinances), please produce all 

Documents upon which You did or could have relied upon for those 

exemptions. And Secondly, the Documents and/or Information 

YOU relied upon with regards to the stability of any trees adjacent 

to and/or related to YOUR aforementioned activities.

3. Please produce all Documents and Information related to any 

work and/or findings YOU discovered when engaging in the 

aforementioned water pipe repairs or replacements in the 1200 block 

of Chidsey Street (including but not limited to any replacement of 

sidewalks adjacent to Requestor’s Properties). YOUR Answer 

should include but not be limited to the type, details of any 

excavations YOU preformed (e.g. the specific areas YOU 

excavated; the length, width and depth of YOU excavated; any 

eroding of the subsurface of the relevant land, roadways and/or 

sidewalks YOU discovered during the aforementioned activities); 

and any/all activities YOU engaged in to remedy any erosion YOU 

found in the relevant areas noted above.

4. Please IDENTIFY all persons who have direct first hand [sic]

knowledge of any and/or all work related to the removal, 

reconstruction and/or repairs of the aforementioned water 

transportation pipes, roadways and/or sidewalks in the 1200 Block 

of Chidsey Street. In YOUR Answer, please provide sufficient 

information so that these persons can be served with subpoenas 

and/or called as witnesses in the aforementioned underlying 

litigations.

5. Please produce all DOCUMENTS which relate to any and all 

Notices YOU gave to Mr. Olick and/or any other resident’s [sic] of 

Easton Pa which informed them that their water supply may be being 

transported to their properties, in part or whole, through lead pipes 

that any Notice of Water Quality YOU are currently and/or 

previously sent to them regarding the quality of water they are/were 

receiving from YOU (whether or not they Documents omitted any 

information about the lead in the water supplies) the residents 

actually receive from YOU at their properties. In YOU [sic]Answer, 
4

please produce all DOCUMENTS and Information related to Water 

Quality YOU actually provided to the aforementioned property 

owners. In YOUR Answer, please provide all documents and/or 

information concerning when YOU first became aware that You 

were, and/or could be, transporting water to residents of the City of 

Easton through lead pipes.

6. Please produce all Documents that YOU communicated directly 

to Mr. Olick which provided him with prior Notice that YOU would 

be performing the aforementioned activities in the street and on the 

sidewalks adjacent to Requestor’s Properties. Please note, since 

there is no dispute that YOU are aware that Mr. Olick resides on 

Crestview Ave, Easton, Pa. – please provide all PRIOR Notice that 

YOU allege were sent to Mr. Olick at his personal residence should 

be included in YOUR Production.

7. Please produce all Documents and Information regarding any 

written and/or oral understanding YOU have with the City of Easton 

which permits YOU to install access ports (i.e. to YOUR water 

transportation pipes) which protrudes above the sidewalks surfaces. 

In YOUR answer, please provide all Documents and/or 

understandings YOU have with the City of Easton as to why those 

protruding access ports do not constitute a tripping hazard (e.g. 

access pipes on the Cherry Street alley adjacent to the 1200 Block 

of Chidsey Street). IN YOUR answer, please produce all relevant 

DOCUMENTS and Information including but not limited to all 

permit requests YOU submitted to the City regarding those 

aforementioned access ports installations and any/all inspections 

made by the City after those installations were completed.

8. Please produce all DOCUMENTS and Information regarding any 

inspection and/or any other related activities of the Sidewalks 

adjacent to REQUESTOR”S Properties that YOU undertook after 

receiving Mr. Olick 6/5/18 letter regarding the deteriorating 

conditions of those sidewalks (this is the letter discussed at out 

6/28/18 meeting).

9. Please produce all Documents and/or records related to any 

communications YOU and/or YOUR employees had with the City 

and/or any of its employees regarding YOUR aforementioned 

activities and/or the litigations listed on page one (1) of this Right to 

Know Request.
5

Not satisfied with Water Authority’s response to the Request, Olick 

filed an appeal with OOR on July 9, 2018, which contended that Water Authority 

had failed to fully respond to the Request. See Trial Court Order at 1, R.R. at 140. 

In response to the appeal, on July 19, 2018, Water Authority supplemented the 

record with a position statement and the sworn affidavit of its Open Records Officer, 

which attested that Water Authority had furnished all records in its possession 

responsive to the Request and that no other documents responsive to the Request 

exist. See Trial Court Order at 1-2, R.R. at 140-41. 

OOR issued a Final Determination on July 25, 2018 (Final 

Determination). See Trial Court Order at 2, R.R. at 141; see also Final 

Determination, R.R. at 144-46. Citing Water Authority’s sworn position statement

and its Open Records Officer’s attestation that it had no additional records 

responsive to the Request, OOR determined the Water Authority had met its burden 

of proving that additional records do not exist within its possession, custody, or 

control. See Final Determination at 2, R.R. at 145. Accordingly, OOR denied 

Olick’s appeal. See id.

Olick petitioned the trial court for review. See Trial Court Order at 2, 

R.R. at 141. The trial court reviewed the certified record and conducted a hearing 

on September 8, 2020. See Trial Court Order at 2, R.R. at 141. Thereafter, on 

September 10, 2020, the trial court issued the Trial Court Order in which it 

concluded that Water Authority, through the testimony of its Open Records Officer,

proved that it possessed no further documents responsive to the Request, and 

accordingly had no further production obligations with respect to the Request. See

“Right to Know Request Submitted by T W Olick on 6/27/18 To The Easton Surbaban [sic] Water 

Authority,” included as Exhibit 1 to the Complaint contained in Olick’s unpaginated Reproduced 

Record, at 3-6 (verbatim).
6

Trial Court Order at 2 & 4, R.R. at 141 & 143. The trial court further noted that, 

when given the opportunity at the hearing to present evidence that Water Authority 

had acted deceitfully or in bad faith, Olick failed to present any such evidence, and 

instead continually fundamentally conflated the concept of discovery in a civil action 

with his right of access to documents under the RTKL. See Trial Court Order at 3, 

R.R. at 142. Olick appealed to this Court.3

Olick makes a number of allegations in the instant appeal, all of which 

hinge on whether the trial court erred in determining that Water Authority proved 

that it possesses no further documents responsive to the Request. See Olick’s Brief 

at 5-7.

4

 None of his arguments entitle Olick to relief.

3

“This Court’s review of a trial court’s order in an RTKL dispute is limited to determining 

whether findings of fact are supported by competent evidence or whether the trial court committed 

an error of law, or an abuse of discretion in reaching its decision. The scope of review for a 

question of law under the RTKL is plenary.” Borough of Pottstown v. Suber-Aponte, 202 A.3d 

173, 178 n.8 (Pa. Cmwlth. 2019) (internal citations, quotation marks, and brackets omitted).

4 Olick lists his issues on appeal as follows:

1. Has Appellant produced prima facie undisputed evidence of 

documents and records that the Appellee destroyed, concealed 

and/or failed to produce in answer to the RTK Request (Exhibit 4 @ 

exhibits B & E)?

2. In its production of documents in response to Appellant’s RTK 

Request and RTK Appeal, did the Appellee fail to produce all of its 

documents and/or answer Appellant’s Requests with Specificity as 

required by the RTK Laws, OOR Rules (Pa[.] RTK Law @ Section 

703), and/or the Instruction to the RTK itself (Exhibit 1 @ exhibit 1 

p[. ]2 para[.] D: “Separate answers should be accorded to every 

question/request or part thereof posed . . . Requests should not, 

however, be joined together in a common answer[.]”)?

3. Because the Appellee had previously sworn that [it] received 

them from the City, did the Appellee thereafter fail to produce the 

relevant documents which it previously alleged were received from 

the City regarding: permits requested and issued; inspections and 
7

We begin with an overview of the RTKL. “The objective of . . . [this] 

[l]aw . . . is to empower citizens by affording them access to information concerning 

the activities of their government.” SWB Yankees LLC v. Wintermantel, 45 A.3d 

1029, 1042 (Pa. 2012). Further, the RTKL is remedial in nature and 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.” Pa. Dep’t of Educ. v. Bagwell, 114 A.3d 1113, 1122 (Pa. Cmwlth. 

2015). “[C]ourts should liberally construe the RTKL to effectuate its purpose[.]” 

Barnett v. Pa. Dep’t of Pub. Welfare, 71 A.3d 399, 403 (Pa. Cmwlth. 2013).

Under the RTKL, upon request by a member of the public, local 

agencies are required to provide those members of the public with copies of public 

records within their possession. See Section 302 of the RTKL, 65 P.S. § 67.302. 

approvals of Appellee’s activities with regard[] to Appellant 

Properties and it other repairs, removals and replacements of it water 

distribution pipes in the 1200 Block of Chidsey Street (RTK Request 

p. 3 No. 1)?

4. Did the lower court abuse it[s] discretion when it prohibited the

Appellant from using prior sworn statements (i.e.[,] regarding the 

documents sought in the RTK [R]equests) made in other related 

litigations as evidence of Appellee’s false statements and refusals to 

produce materially related evidence?

5. Did the Appellee fail to produce documents related to the 

“Industrial Guidelines” and/or City Codes that it followed, or should 

have followed, when it performed the relevant repairs and/or 

replacements to its water distribution pipes adjacent to Appellant’s 

Properties and those in the 1200 Block of Chidsey Street?

6. Did the Appellee fail to produce its records and documents related 

to the individuals who had first-hand knowledge of its relevant work 

at the Vacant Lot and/or Rental Property (RTK Request p[. ]5 No. 

4)?

Olick’s Br. at 5-7.
8

Local agencies are not required, however, to create records for the purpose of 

complying with a RTKL request. See Section 705 of the RTKL, 65 P.S. § 67.705 

(“When 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.”). If, upon the submission of a RTKL request, no 

records exist or are in possession of the local agency, the local agency has no 

production obligations with respect to the request. See id. The burden of proving 

that a document does not exist is on the agency responding to the request. See

Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Cmwlth. 2011) (noting that 

an agency is not required to create a record if the requested record does not exist); 

Moore v. Off. of Open Recs., 992 A.2d 907, 909 (Pa. Cmwlth. 2010) (explaining that 

the standard is whether the requested record is in existence and in the possession of 

the Commonwealth agency at the time of the request). To sustain its burden of proof, 

an agency may provide a sworn affidavit or statement made under the penalty of 

perjury as competent evidence to show that a record does not exist. See Hodges, 29 

A.3d at 1192; see also Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. 

Cmwlth. 2011); Moore, 992 A.2d at 909 (stating that an agency may submit an 

affidavit to satisfy its burden of proof). 

Here, the evidence before the trial court consisted of the sworn 

attestation and testimony of Water Authority’s Open Records Officer, Craig 

Swinsburg,5 who explained at the hearing that he caused a full search of the 

5 Swinsburg has been employed with Water Authority since 1999 and has acted as Water 

Authority’s Open Records Officer for approximately the past five years. See Notes of Testimony, 

September 8, 2020 (N.T.) at 7-8, R.R. at 153-54. Swinsburg testified that he is familiar with the 

various documents kept in Water Authority’s normal course of business. See N.T. at 8, R.R. at 

154.
9

documents retained by Water Authority to be conducted in response to the Request, 

and that Water Authority provided Olick with all responsive documents in its 

possession. See Notes of Testimony, September 8, 2020 (N.T.) at 8-12 & 20, R.R. 

at 154-58 & 167. Swinsburg also testified that no one instructed him not to produce 

responsive documents, that he did not become aware of further responsive 

documents after providing Olick the responsive documents in Water Authority’s 

possession, and that he would have produced further responsive documents, had 

such documents been identified. See N.T. at 11-12, R.R. at 157-58. Swinsburg 

further explained that he had no reason to not provide documents in response to the 

Request, and that, if he was to discover further responsive documents in the future, 

he would produce those documents as well. See N.T. at 12, R.R. at 158. The trial 

court further noted that Olick failed to proffer any evidence from which the trial 

court could conclude that Water Authority had acted deceitfully or in bad faith or 

that the records allegedly sought by Olick did exist. See Trial Court Order at 3, R.R. 

at 142; see also McGowan v. Pa. Dep’t of Env’t Prot., 103 A.3d 374, 382-83 (Pa. 

Cmwlth. 2014) (indicating that where no evidence has been presented to show the 

agency acted in bad faith, the averments in the agency’s affidavit should be accepted 

as true). Based on this evidence, the trial court determined Water Authority met its 

burden of showing that it does not have records responsive to the Request beyond 

those already produced. We find no error or abuse of discretion in the trial court’s 

determination.

Further, to the extent Olick demanded answers to information requests

or inquiries otherwise posed in the Request, the trial court noted that, throughout the 

hearing, Olick “fundamentally conflated in his mind the concept of discovery with 

his right of access under the [RTKL].” Trial Court Order at 3, R.R. at 142. Review 
10

of the hearing transcript reveals the trial court’s assessment to be accurate. See 

generally N.T. We note simply that Olick’s failure or inability to grasp the 

limitations of his rights or Water Authority’s obligations under the RTKL, despite 

the trial court’s consistent and patient explanation of the same, does not expand those

rights or obligations beyond the production of extant public documents in Water 

Authority’s possession, custody, or control to include an entitlement to the discovery 

devices employed in traditional civil litigation.

Additionally, Olick is not entitled to relief based on his evidentiary 

claim regarding the trial court’s refusal to allow the introduction of statements from

other previous lawsuits. See Olick’s Br. at 6, Issue On Appeal No. 4. Olick 

completely failed to develop this claim in any fashion in his brief and does not 

identify the specific documents or statements he claims should be admitted. See

Olick’s Br. at 8 & 10-14. Accordingly, this argument is waived. See Berner v. 

Montour Twp., 120 A.3d 433, 437 n.6 (Pa. Cmwlth. 2015) (ruling that a party’s 

failure to sufficiently develop an issue in a brief constitutes waiver of the issue); 

Pa.R.A.P. 2119(a).6

For the reasons above, we affirm. 

__________________________________

CHRISTINE FIZZANO CANNON, Judge

6 We acknowledge Olick’s pro se status, but note that, while we may be willing to liberally 

construe a pro se litigant’s filings, pro se status neither confers special benefits on Olick nor 

excuses shortcomings in his brief. See Commonwealth v. Adams, 882 A.2d 496, 498 (Pa. Super. 

2005).
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Thomas W. Olick, :

 Appellant :

:

v. :

: No. 995 C.D. 2020 

Easton Suburban Water Authority :

O R D E R

AND NOW, this 3rd day of December, 2021, the September 10, 2020 

order of the Northampton County Court of Common Pleas is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge