FINAL DETERMINATION
IN THE MATTER OF
ELAINE GILLEN,
Requester
v.
MUNICIPALITY OF MT. LEBANON,
Respondent

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Docket No.: AP 2016-0023

INTRODUCTION
Elaine Gillen (“Requester”) submitted a request (“Request”) to the Municipality of Mt.
Lebanon (“Municipality”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et
seq., seeking e-mails pertaining to a deer management program. The Municipality partially
denied the Request, withholding from public disclosure certain e-mails that would threaten
personal security and reveal the identities of donors. The Requester appealed to the Office of
Open Records (“OOR”). For the reasons set forth in this Final Determination, the appeal is
granted, and the Municipality is required to take further action as directed.
FACTUAL BACKGROUND
On November 25, 2015, the Request was filed seeking “[a]ll communications to and/or
from municipal staff and, all communication to and/or from the commission concerning Anthony
DeNicola’s archery program from July 31, 2015 through November 25, 2015.” On December 2,

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 2015, the Municipality invoked a thirty-day to respond to the Request. See 65 P.S. § 67.902. On
January 4, 2016, the Municipality partially granted the Request, providing e-mails to the
Requester. The Municipality denied access to certain e-mails that would identify the private
properties being used for the archery hunt, arguing that public access of those records would
result in a substantial and demonstrable risk to the personal security of the property owners. See
65 P.S. § 67.708(b)(1). The Municipality also denied access to these e-mails stating that the emails would identify those individuals making a donation to an agency.

See 65 P.S. §

67.708(b)(13).
On January 6, 2016, the Requester appealed to the OOR, challenging the denial and
stating grounds for disclosure. The OOR invited both parties to supplement the record and
directed the Municipality to notify any third parties of their ability to participate in the appeal.
See 65 P.S. § 67.1101(c).
On January 15, 2015, the Municipality submitted a position statement, reiterating the
same reasons for withholding the records from public disclosure.

The Municipality also

submitted the sworn affidavits of Bonnie Cross, Assistant to the Manager and Open Records
Officer for the Municipality, and Chief Aaron Lauth, Chief of Police for Mt. Lebanon. In its
submission, the Municipality indicates that the instant appeal seeks the same records, except for
a different date range, as a previous appeal to the OOR. See Gillen v. Municipality of Mt.
Lebanon, OOR Dkt. AP 2015-1938, 2015 PA O.O.R.D. LEXIS 1963 (“Gillen I”). As the
background facts were discussed in Gillen I, they will not be discussed herein.
On January 22, 2016, the Requester submitted a position statement, stating that there is
no evidence on the likelihood of harm.

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 LEGAL ANALYSIS
“The objective of the Right to Know Law ... is to empower citizens by affording them
access to information concerning the activities of their government.” SWB Yankees L.L.C. v.
Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law 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.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d
75 A.3d 453 (Pa. 2013).
The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65
P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the
request.” 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing to resolve an
appeal. The decision to hold a hearing is discretionary and non-appealable. Id. The law also
states that an appeals officer may admit into evidence testimony, evidence and documents that
the appeals officer believes to be reasonably probative and relevant to an issue in dispute.
Id. Here, neither party requested a hearing; however, the OOR has the necessary, requisite
information and evidence before it to properly adjudicate the matter.
The Municipality is a local agency subject to the RTKL that is required to disclose public
records. 65 P.S. § 67.302. Records in possession of a local agency are presumed public unless
exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65
P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record
requested is within its possession, custody or control and respond within five business days. 65
P.S. § 67.901. An agency bears the burden of proving the applicability of any cited exemptions.
See 65 P.S. § 67.708(b).

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 Section 708 of the RTKL clearly places the burden of proof on the public body to
demonstrate that a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of
proving that a record of a Commonwealth agency or local agency is exempt from public access
shall be on the Commonwealth agency or local agency receiving a request by a preponderance of
the evidence.” 65 P.S. § 67.708(a). Preponderance of the evidence has been defined as “such
proof as leads the fact-finder … to find that the existence of a contested fact is more probable
than its nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct.
2011) (quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821,
827 (Pa. Commw. Ct. 2010)).
1. The Municipality has not established that the disclosure of the records would be
reasonably likely to result in a risk of personal harm
The Municipality states that certain e-mails were not produced that would identify the
persons volunteering use of their property to conduct the archery program. The Municipality
argues that the release of these e-mails would threaten personal security of these individuals.
Section 708(b)(1)(ii) of the RTKL protects “a record, the disclosure of which ... would be
reasonably likely to result in a substantial and demonstrable risk of physical harm to or the
personal security of an individual.” 65 P.S. § 67.708(b)(1)(ii).
Under the RTKL, “reasonable likelihood” of “substantial and demonstrable risk” is
necessary to trigger the personal security exception. The term, “substantial and demonstrable
risk” is not defined in the RTKL. By construing these terms in accordance with their plain
meaning, 1 Pa.C.S. § 1903(a), the risk of harm must be material, real and ample. The risk of
harm must also be demonstrable, which is defined as being obvious or apparent.

See

Swartzwelder v. Butler County, OOR Dkt. AP 2009-0632, 2009 PA O.O.R.D. LEXIS 129. Mere
belief that the release of a record would cause substantial and demonstrable risk of harm is

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 insufficient. Zachariah v. Pa. Dep’t of Corr., OOR Dkt. AP 2009-0481, 2009 PA O.O.R.D.
LEXIS 216; see also Lutz v. City of Philadelphia, 6 A.3d 669, 676 (Pa. Commw. Ct. 2010)
(holding that “[m]ore than mere conjecture is needed” to establish that this exemption applies).
Ms. Cross explains that the Municipality is allowing the hunting on five of its public
lands, as well as privately owned lands that have been volunteered for use in the archery
program. She attests that the e-mails withheld in this appeal would reveal the properties that were
offered for use and were either chosen or not chosen to participate in the program. The
Municipality has chosen to keep the location of the private properties confidential because of the
“publicity associated with hunting and deer management and the [divisive] nature of the issue.”
Chief Lauth explains that deer management in the Municipality has been “hotly debated
and very contentious.” He provided the OOR with the Commission’s public website to view the
community’s comments at Commission meetings arguing against a lethal deer management
program. He also attests that, prior to some of the meetings, protests were held and, at some
meetings, “police presence was deemed advisable.” Chief Lauth further explains that past deer
management programs have also been controversial and resulted in numerous incidents, such as
tampering with the bait, wedging sticks in corral doors to prevent deer from being caught and
loud noises to scare deer away. With respect to this deer management program, Chief Lauth
attests that the Municipality hired a third party to locate and test qualified hunters, determine the
hunting locations and determine compliance with Game Commission rules. The Chief attests
that:
The archery program commenced in September, 2015. On October 5, 2015 a
woman was cited for trespass by Mt. Lebanon Police and for interfering with a
legal hunt by the PA Game Commission for an incident occurring on a private
property used in the archery program. She was convicted of both charges on
December 5, 2015 in front of the District Magistrate.

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 Following the OOR ruling in [Gillen I], the [Requester] in this matter contacted
me by email…request[ing] patrols on her street in response to the reaction she
received because her appeal was granted by the OOR.
Chief Lauth opines that individuals identified as volunteering the use of their property for the
hunt would encounter harassment, invasion of privacy and personal security issues.
The Municipality has provided evidence of incidents in past years which involved
tampering with traps and scaring deer. The Municipality also references the recent conviction of
an individual for trespassing on privately owned land involved with the hunting program but
provides no details beyond remarking that such an incident occurred. As such, the Municipality
fails to show any link between the trespass conviction and any alleged risk of personal harm.
The Municipality also claims that access should be denied because the Requester asked
police to patrol her street based on the reaction to her previous request and successful appeal. A
negative reaction toward a citizen exercising their rights under the RTKL cannot be used as a
gate to block future requests for records. This is especially true where, like here, the type of
record requested has already been found to be public. Finally, the Requester’s submission on
appeal does not discuss her e-mail to the police or express any concern for her own personal
safety; rather, she iterates that the Municipality has not proven a substantial risk of harm in this
matter. As Section 708(b)(1) requires more than conjecture and conclusory statements, the
Municipality has failed to demonstrate that the e-mails are not subject to public disclosure under
Section 708(b)(1) of the RTKL.
2.

Section 708(b)(13) of the RTKL does not apply

The Municipality denied access to e-mails identifying landowners that are allowing the
access to their land for the deer management program as records that would reveal the identity of

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 an individual making a donation to the agency. Section 708(b)(13) of the RTKL, which exempts
from disclosure:
[r]ecords that would disclose the identity of an individual who lawfully makes a
donation to an agency unless the donation is intended for or restricted to
providing remuneration or personal tangible benefit to a named public official or
employee of the agency, including lists of potential donors compiled by an agency
to pursue donations, donor profile information or personal identifying information
relating to a donor.
65 P.S. § 67.708(b)(13). As the OOR held in Gillen I, the landowners are not gifting their
property to the program; instead, they are simply allowing temporary access to their property and
such property will, at all times, remain the property of those individuals rather than the program.
Accordingly, Section 708(b)(13) does not apply in this matter, as nothing is being donated.
CONCLUSION
For the foregoing reasons, Requester’s appeal is granted, and the Municipality is
required to provide all e-mails within thirty days. This Final Determination is binding on all
parties. Within thirty days of the mailing date of this Final Determination, any party may appeal
to the Allegheny County Court of Common Pleas. 65 P.S. § 67.1302(a). All parties must be
served with notice of the appeal. The OOR also shall be served notice and have an opportunity
to respond as per Section 1303 of the RTKL. This Final Determination shall be placed on the
OOR website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: February 23, 2016

_________________________
APPEALS OFFICER
JILL S. WOLFE, ESQ.

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 Sent to:

Elaine Gillen (via e-mail only);
Philip Weis, Esq. (via e-mail only);
Ronald Barber, Esq. (via e-mail only);
Bonnie Cross (via e-mail only).

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