COURT OF COMMON PLEAS PHILADELPHIA COUNTY CIVIL TRIAL DIVISION PHILADELPHIA DISTRICT OFFICE v. No. 170802099 OPINION This Right to Know Law appeal presents the novel issue whether a governmental agency that signed a written contract with other public entities is required to obtain a copy of the agreement if it does not actually possess it at the time of the request. The Of?ce of Open Records answered this question in the af?rmative, and required the Philadelphia District Attorney?s Of?ce to provide copies of current agreements related to the Preliminary Arraignment Reporting System to the requester, Austin Nolen. This Court affirms the decision of the OCR. For the reasons discussed below, the Court holds that the DA0 constructively possesses the requested documents and must provide responsive records within 30 days of the docketing of this opinion. rants On March 18, 2017, requestor-appellee Austin Nolen ?led a request with the DA0, pursuant to the RTKL, 65 PS. 66.101, et seq, seeking: I. The current agreement between the Philadelphia Police Department, Municipal Court, District Attorney?s Of?ce and other partners governing the Preliminary Arraignment Reporting System (PARS). II. The current agreement governing access by Immigration and Customs Enforcement to PARS. Standard Right-to?Know Request Form (?Request?), Reproduced Record at 25. Philadelphia District Attorney's O?ice Vs N-OPFLD 17080209900023 I Case ID: 170802099 PARS is an information technology system used to transmit information from arrest through arraignment among the City of Philadelphia Police Department, the DA0 and the Municipal Court of the First Judicial District Attestation by Opens Record Of?cer Douglas Week (?Week Attestation?), RR at 47:115. City police use the system to transmit information about a criminal arrest to the DA0 for a charging decision. Id. The DAO uses the system to ?le charges in Municipal Court, triggering the scheduling of a preliminary arraignment. Id. At the preliminary arraignment, bail is set and recorded in PARS. Id. The Common Pleas Court?s electronic case management system extracts data from PARS, allowing criminal cases to proceed in the trial court. Id On May 17, 2017, the DA0 responded to the Request, stating that, after a good-faith search, it had determined that it had no responsive records in its possession, custody or control. at 27. Nonetheless, ?as a courtesy,? the DA0 provided Mr. Nolen with a copy of a PARS Extension of End-User License Agreement among the City, FJ D, DAO and the United States Department of Homeland Security Immigration and Customs Enforcement at 27, 29?35. The DAO further advised Mr. Nolen of its understanding that the originals of ?agreements governing partners to PARS are maintained by Deputy Court Administrator Kevin Cross? of the FJD. Id. at 28. The DAO accordingly redirected Mr. Nolen to the FJ ?to inquire about access to those documents.? Id. The response was silent regarding whether the DA0 had investigated if the City retained a copy of the requested documents. Mr. Nolen sought reconsideration of the determination. On May 19, 2017, the DA0 denied the request for reconsideration. While the DA0 admitted it had the ability to 1 The agreement that was produced was sent by fax from Hon. Marsha Nei?eld, the President Judge of Municipal Court on February 25, 2011. RR at 29-35. 2 Case ID: 170802099 ?make a courtesy request of the records from the First Judicial District,? the Open Records Of?cer stated that he lacked any power to ?impose an obligation on them to turn records over to? the DA0. ?Therefore,? he concluded, do not have effective control over them.? Id at 37. There is no evidence of record that the DA0 asked the FJ for a copy of documents responsive to the Request, which include a contract to which the DA0 is a party. Nor is there evidence that the DA0 asked the Police Department, another of the signatories to the requested agreement, for a copy. See Week Attestation, RR at 47-49, and Letter from Weck to City Open Records Of?cer, RR at 53 (stating only that the City?s PARS Technical Lead does not have a c0py ?of any current agreements as best as I [Week] have been able to tell.?) Mr. Nolen timely appealed to the OOR. Id. at 16?22. On May 30, 2017, the DA0 noti?ed the City and the FJD of the pendency of the appeal before the OOR. Id. at 51-54. Neither chose to intervene in the matter. On July 24, 2017, the OOR issued its Final Determination. Id. at 71-80. The OOR held that the DA0 constructively possessed the requested documents and must provide copies of them to Mr. Nolen. Id. at 76, 79. The DAO appealed to this Court on August 22, 2017. After brie?ng, the Court heard argument on January 18, 2018. J, DISCUSSION A. Standard and Scope of Review The standard of review in appeals to the Court of Common Pleas from ?nal OOR determinations is de novo; the scope of review is plenary. Bowling v. O?ice of Open Records, 75 A.3d 453, 476?77 (Pa. 2013). Case ID: 170802099 B. The 00R Correctly Determined that the DA0 Constructively Possesses The Requested Documents 1. Existence of Responsive Documents The objective of the RTKL ?is to empower citizens by affording them access to information concerning the activities of their government.? WB Yankees LL. C. v. intermantel, 45 A.3d 1029, 1041 (Pa. 2012). The RTKL presumes records in an agency?s possession are ?public records, accessible for inspection and copying by anyone requesting them, and must be made available to a requester unless they fall within speci?c enumerated exceptions or are privileged.? Bowling, 75 A.3d at 457 (citing 65 PS. An'agency evaluating an RTKL request must ?rst determine whether the requested records exist. Dental Bene?ts Providers, Inc. v. Eiseman, 86 A.3d 932, 936 (Pa. melth. Ct. 2014). The RTKL de?nes ?records? as: Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. 65 PS. 67.102 (2008). The DAO concedes that responsive documents exist. at 28, 482?? 8. 2. Constructive Possession The next question is whether responsive documents are within the possession, custody or control of the agency to which the request was directed, such that it may be obligated to disclose them. Dental Bene?ts Providers, 86 A301 at 936. No evidence exists that the DA0 actually possesses reSponsive documents or has them in its custody or control. Week Attestation, at 482% 6, 9. The issue before the Court therefore is whether the DA0 constructively possesses the requested documents. Case ID: 170802099 Under the RTKL, constructive possession of documents may be imposed directly under Section 901. See Dental Bene?t Providers, 86 A.3d at 937?939. Section 901 of the RTKL requires an agency, upon receipt of a written request for access to a record, to ?make a good faith effort to determine . . . whether the agency has possession, custody or control of the identi?ed record. . . 65 PS. 67.901 (2008). The Commonwealth Court has recognized constructive possession under Section 901 ?as a means of access so agencies cannot frustrate the purposes of the RTKL by placing their records in the hands of third parties to avoid disclosure.? Dental Bene?ts Providers, 86 A.3d at 938. Courts may not infer constructive possession ?from the mere availability of the records to an agency upon request.? Id. (citations omitted). ?The litmus test under Section 901 remains whether the records document a transaction of the agency to which the request was directed. . . Id. Mr. Nolen seeks a copy of current agreements to which the DA0 is a party. Further, the DA0 admittedly uses the system licensed pursuant to requested agreements to obtain information so it can make a charging decision, and to ?le charges in Municipal Court. Week Attestation, RR at 47 Based on the own description, there can be no doubt that requested agreements document transactions of the DA0 and thus are in its constructive possession.2 2 The requestor also relies on Section 506(d) of the RTKL. That section deals with situations where a public record is in the possession of a private party with whom the agency has contracted to perform a governmental service. 65 P.S. (2008), see also, e. Dental Bene?t Providers, 86 A.3d at 939. This case does not involve a private third party providing governmental services. Instead, it concerns agreements among multiple public agencies: the DA0, the City Police Department, the FJD and ICE. Therefore, the Court holds that Section 506(d) is inapplicable. 5 Case ID: 170802099 The reliance on Siurgis v. Department of Corrections, 96 A.3d 445 (Pa. melth. Ct. 2017); Brown v. O?ice of the Governor, No. 1379 CD. 2016, 2017 WL 2951701 (Pa. melth. Ct. July 11, 2017); and Stover v. Philadelphia District Attorney ?5 Of me, No. 1952 CD. 2016, 2017 WL 3995913 (Pa. melth. Ct. Sept. 12, 2017) is misplaced. All three of those cases concern inmates who were seeking documents related to their conviction, incarceration or sentencing. The Commonwealth Court held in Sturgis that the Department of Corrections had no obligation to contact the DAO to obtain a copy of the requestor?s judgment of sentence. Sturgis, 96 A.3d at 448. The Court held in Brown that the Governor?s Of?ce had no obligation to produce records, which were not in its possession, custody or control, concerning the prison at which the requestor was incarcerated. Finally, in Stover, the Commonwealth Court held that the requested records of an inmate?s conviction and sentence were judicial records not disclosable under the RTKL. None of these cases involved the production of agreements among multiple government agencies, which was signed by the agency to which the request was directed. Moreover, not one of the cited cases involved constructive possession. C. The Determination that Mr. Nolen Was Not Entitled To the Records Has No Preclusive Effect After the DA0 determined that the requested documents were in the possession of the FJ and redirected Mr. Nolen to that entity, Mr. Nolen ?led a RTKL request to the FJ D?s Open Records Of?cer. The FJD denied the request, which Mr. Nolen appealed to the FJD Court Administrator. Mr. Nolen?s appeal was denied. The Court Administrator explained that only ?nancial records of a judicial agency are subject to the RTKL. at 82. He further stated that the requested documents ?are not ?nancial documents in that they reference data sharing protocols and are not ?account(s), voucher(s) or contract(s) dealing with: the receipt or Case ID: 170802099 disbursement of funds by an agency; or (ii) an agency?s acquisition, use or disposal of services, supplies, materials, equipment or property.? Id. (citation omitted). Mr. Nolen did not appeal the decision. The DAO argues that the FJ D?s decision has preclusive effect. For collateral estoppel to apply, however, the issue the FJD decided must be identical to the issue presented to the 00R. O?ce of Disciplinary Counsel v. Kiesewetrer, 889 A.2d 47, 50?51 (Pa. 2005). It is not. Section 304 of the RTKL requires judicial agencies to provide only ?nancial records in response to RTKL requests, so the only issue before the FJ Administrator was whether the requested documents are financial records. 65 RS. 67.304 (2008). In contrast, as discussed above, the RTKL obligates the DA0 to produce any responsive documents in its possession, custody or control, unless it proves that an exemption applies. This inquiry is quite different from the one the undertook, and therefore the decision has no preclusive effect. D. The Court Is Not Requiring the DA0 to Unconstitutionally Meddle In the Affairs The DAO ?nally argues that any order that requires the FJ to turn over the requested documents unconstitutionally meddles in its affairs. It is indisputable that the judiciary is a separate branch of government from the executive, and that neither this Court nor the DA0 can compel the FJD to provide the DA0 with a copy of documents responsive to Mr. Nolen?s request. See, L.J.S. v. State Ethics Comm 744 A.2d 798, 800 (Pa. melth. Ct. 2000) (?Neither the General Assembly nor the executive branch of government, acting through an administrative agency may constitutionally infringe upon the powers or duties of the county judiciary?) Case ID: 170802099 It also is indisputable that the purpose behind the constructive possession doctrine is to prevent a government agency from gamesmanship when responding to RTKL requests. Dental Bene?ts Providers, 86 A.3d at 938. In this case, the DAC) signed a current written contract or contracts with the City and the PI D. These contracts govern the sharing of information among those entities and between those entities and ICE. While the DA0 admitted that it could ask the FJ for a copy of responsive documents, RR at 37, the attestation omits any mention of any such request. RR at 47-49. At a minimum, the DA0 is obligated to ask the FJD to provide it with a current copy of the requested documents, which again are contracts to which it is a party.3 Similarly, the DA0 states only that the City?s PARS Technical Lead does not have a copy of any current agreements relating to PARS. See Weck Attestation, RR at 47-49, and Letter from Week to City Open Records Of?cer, at 5.3 (stating only that the City?s PARS Technical Lead does not have a copy ?of any current agreements as best as I [Weck] have been able to tell.?) The DAO is at best obscure about what efforts it made to determine whether the City retains a copy of the requested documents. The Court accordingly also ?nds that the DA0 failed to perform its obligation to make a good-faith effon to determine whether, vis-a-vis the City, the requested documents are under its control or constructive possession. 3 It is hard to conceive why the DA0 would not want a copy of a contract that sets forth its contractual relationship with the City, the FJD and ICE. Its failure to seek a copy for its own use raises questions about whether it has avoided asking the FJ or the City for a copy of the documents to frustrate the purposes of the RTKL. The fact that the FJ faxed a previous version of the contract to the DA0 also suggests that the DA0 may have put the documents in the hands of a third party to avoid exposing them to sunlight. See RR at 29-35; L. Brandeis, Other People ?3 Money (1914), at 92 (?Sunlight is said to be the best of disinfectants?) 8 Case ID: 170802099 CONCLUSION For all the foregoing reasons, the Court denies the appeal of the Philadelphia District Attorney?s of?ce. An order follows. BY THE COURT: V. Abbe F. Fletrnan, J. Case ID: 170802099