This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
In a Final Determination entered on April 15, 2021, the OOR found that a request for e-mails to and from a number of agency staff or officials involving a large number of different subject matter terms, to be insufficiently specific, and that the Pennsylvania Department of Health (“Department”) was not required to respond to it. Carter Walker and LNP Media v. Pennsylvania Department of Health, Dkt. No. AP 2021-0460 (Apr. 15, 2021).
Background and Facts:
On February 2, 2021, Carter Walker and LNP Media (“Requesters”) submitted a Request to the Pennsylvania Department of Health (“Department”) seeking “correspondence to and from Department officials regarding various COVID-19 related keywords search terms for multiple periods of time encompassing January 22, 2020 through February 2, 2021.” Slip op. at 1. The Request targeted three different Department officials and stated generally that the subject matter of interest “is communications where the COVID-19 virus, the Department of Health’s response to it, Lancaster County’s response to it, testing and vaccination are discussed.” The Request also provided a number of keywords to be searched, including several different synonyms for “COVID-19 test,””COVID-19 vaccine,” “COVID-19” and “COVID deaths,” three different ways to denote the Department, several different hospital names, two different ways to say “long term care,” and the terms “mass vaccination” and “vaccine distribution.”
The Department asked for a 30-day extension in which to respond, and shortly after doing so denied the Request on the ground that it was insufficiently specific to allow the Department to identify the records sought. Requesters appealed.
Analysis and Holding:
In analyzing the specificity of the Request, OOR began by observing that it follows a three-part test set forth by Commonwealth Court. First, the subject matter of the Request “must identify the ‘transaction or activity’ of the agency for which the record is sought.” Slip op. at 7 (citing Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. 2015). Next, the scope of the Request must identify a discrete group of documents by type, recipient, or some other criterion. Id. Last, but not least, the Request should identify a finite timeframe for which the records are sought. Id. (citing Carey v. Pennsylvania Dep’t of Corrections, 61 A.3 d 367 (Pa. Commw. Ct. 2013). However, a request that is sufficiently specific under the other two parts of the test will not necessarily be found to be overly broad, while identification of a short timeframe will not suffice to make an overly broad request specific. Slip op. at 7.
OOR further observed that while a Request may use keywords instead of a subject matter description, a collection of broad keywords does “not provide a sufficient limiting context.” Even broad keywords may be sufficient limitation upon a Request that specifies senders or recipients of e-mails. Slip op. at 8. Here, the keywords in the Request “may pertain to a variety of Department activities….” Slip op. at 9. Because there were no additional parameters limiting the Request at issue to a particular “transaction or activity,” the Department would have had to review all potentially responsive files and make judgments about the relationship of each document to the Request in order to be able to respond. Slip op. at 10. Thus, OOR held that the Department’s denial of the Request was proper.
Bottom Line:
Requesters failed because, in their eagerness to obtain as much information from the Department as possible, they cast their net too broadly. Instead of focusing on COVID testing, or COVID vaccination, or any one of the other topics referenced in their list of keywords, Requesters attempted to craft a Request that would cover all those topics at once. This Walker decision demonstrates that a request using a large number of terms about multiple related but discrete topics is less likely to succeed.