The Right-to-Know Law does not compel Attorney General Kathleen Kane to disclose pornographic emails sent or received by OAG employees using their work accounts, the Pennsylvania Commonwealth Court ruled in Pennsylvania Office of Attorney General v. Philadelphia Inquirer, __ A.3d __ (No. 2096 CD 2014, filed Nov. 19, 2015). The Right-to-Know Law (RTKL) request in this case, which originated from the Philadelphia Inquirer, encompassed all email traffic containing pornographic material sent to and from the work accounts of current and former OAG employees dating back to 2005, including all participants in the email chains. The OAG’s designated appeals officer determined that the emails were disclosable “records” under the RTKL because the use of emails to transmit pornographic material is an “activity” documenting an employee’s improper use of the agency’s time and resources.
On the Attorney General’s appeal, an en banc panel of the Commonwealth Court reversed, holding that the emails are not public records under the RTKL. Writing for the 5-2 majority, President Judge Dan Pellegrini observed that it was irrelevant whether the emails were sent or received with an OAG email address; what makes an email a “public record” is whether the information sought documents an agency transaction or activity. The Court rejected the Attorney General’s argument that an email becomes a public record if it documents a violation of agency policy, explaining that such an approach is overly broad because all personal emails could be disclosable just to determine whether an agency is properly enforcing its email use policy. Because the emails requested in this case do not relate to OAG operations or any transaction or activity of the agency, the Court held that the RTKL does not compel the Attorney General to release them. Nevertheless, the Court noted that nothing in its opinion precludes the Attorney General from voluntarily releasing the emails.
In a dissenting opinion, Judge Leadbetter, joined by Judge Cohn Jubelirer, opined 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.” The dissenting judges would remand to the OAG’s appeals officer to allow the Inquirer to attempt to meet that burden.