Office of Open Record to Mooney

April 27, 2009
Keith Mooney, Esquire Barley Snyder LLC
50 North Fifth Street P.O. Box 942
Reading, PA 19603-0942
COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS
Via Facsimile & US J1ail

Re: AP 2009-0272, Marino v. Kutztown Borough ("Borough Dear Solicitor Mooney:
r roceiv@G-the al;lQ:v:e-appeal filedJJy Gennaro A. Marino with the Office of Open Records ("OOR") pursuant to the Right-to-Know Law, 65 P.S. §§67.101 et seq. ("RTKL") relative to a Purchase Order for the purchase of equipment from Blonder Tongue Laboratories set to be ratified at a Borough Council meeting.
The Denial of the Borough Open Records Officer reports that due to no [mal action being taken, the Purchase Order requested did not exist. However, that statement is in conflict with your letter dated April 16th, received by the undersigned April 20th in which you do not claim non-existence of the record. Rather, you advise that the Purchase Order does not qualify as a "record" under Section 102 of the R TKL. Please be advised that under the new R TKL, unlike its predecessor, to qualify as a public record, a record need not form the basis of a decision or final action. Rather, any information of an agency that documents its actions or business may be a "record" subject to disclosure. You have not asserted any exceptions to the disclosure of the Purchase Order requested, for which the Borough bears the burden of proof under Section 708(a) of showing its non-public nature.
As you have claimed the Purchase Order does not qualify as a "record," please confirm that argument as the Borough's sole defense to disclosure. To the extent that you claim the Purchase Order does not qualify as a record, please explain the reasons the Consent Agenda for the March 1 ih Borough Council meeting refers to its issuance, and supply your legal authority for your conclusion that the Purchase Order is not a "record." You may cite to Final Determinations of the OOR that support your conclusion.
Please note Docket No. AP 2009-0272 on all submissions related to that Appeal and send a copy to the requester. Kindly supplement the record as requested by May 1.2009. Submissions via facsimile are preferred.
Thank you in advance for your anticipated cooperation with this matter.
Very truly yours,
~~
Lucinda Glinn
Appeals Officer

cc. Gennaro A. Marino
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax) http://openrecords.state. pa. us