OFFICE OF OPEN RECORDS FINAL DETERMINATION 5-8-09

pennsyLvania·

OFFICE OF OPEN RECORDS FINAL DETERMINATION

IN THE MATTER OF

GENNARO A. MARINO, Complainant


v.

BOROUGH OF KUTZTOWN, Respondent
Docket No. AP 2009-0272

INTRODUCTION



Gennaro A. Marrino submitted a request to the Borough of Kutztown ("Borough")

seeking access to a purchase order placed on a Borough Consent Agenda, but not acted upon,

pursuant to the Right-to-Know Law, 65 P.S. §§67.101 et seq., ("RTKL"), The Borough denied

access stating that the record did not exist. Mr. Marino timely appealed to the Office of Open

Records ("OOR").

For the reasons set forth in this Final Determination, Mr. Marino's appeal is granted, and

the Borough is required to release the record.

FACTUAL BACKGROUND

On March 27, 2009, Mr. Marino submitted a right-to-know request to the Borough

seeking "'a copy of the purchase order of $119,511.87 which the Council was to ratify at the

March 17, 2009 council meeting" ("Request"). Bonnie Bray, Right-to-Know Officer of the

Borough timely responded on April 1st and advised that Mr. Marino's Request "is denied

1

OOR LETTER TO B.BRAY AND I 5-5-09

COMMON\VEALTH OF PENNSYLVANL<\ OFFICE OF OPEN RECORDS
May 5, 2009

Gennaro Marino 409West Main Street Kutztown, P A 19530
RE: DOCKET # AP 2009-0359

Bonnie Brav
Open Records Officer Borough of Kutztown 45 Railroad Street
Kutztown, P A 19530


Thank you for writing to the Office of Open Records regarding the Right-to­Know law, 65 P.S. §§67.101, C«RTKL"). The OOR has received an appeal on May 5, 2009. This letter will explain our process and provide the Agency a copy of the appeal.
The OOR will assign an Appeals Officer to review the case. If all procedural requirements have been met the Appeals Officer will review the file, consult with agency counsel as appropriate, seek any necessary additional information and issue a Final Determination. The Appeals Officer may conduct a hearing, but that decision is non­appealable. If all procedural requirements have not been met the parties will receive a letter stating why the appeal has not been accepted and that no further action is needed.
If additional information is necessary to reach a Final Determination, the Appeals Officer will ask for it in writing with a deadline for submission. If either party would like to submit unsolicited information they must do so within seven (7) business days from the date of this letter and provide a copy to the opposing party. Agencies are reminded that the burden of proof rests with them in citing the exception, law, regulation, judicial order or privilege to deny a request.
The OOR has 30 calendar days to issue a Final Determination. If you would like more information, please see our Web site, http://openrecords.state.pa.us, where all Final Determinations will be posted.
Respectfully,

Terry Mutchler Executive Director
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Commonwealth Keystone Bl ,.J f'llorrh Street, 4th Floor
Harrisburg, Pen •• ,ylvania 17120-0225 (717)346-9903 I (717) 425-5343 (Fax)

OFFICE OF OPEN RECORDS LETTER TO MOONEY ESQ.5-4-09

COMMONWEALTH OF PENNSYLVANIA OFFICE OF OPEN RECORDS
May 4, 2009
Via Facsimile
Keith Mooney, Esquire Barley Snyder LLC
50 North Fifth Street P.O. Box 942
Reading, PA 19603-0942
Re: AP 2009-0272, Marmov. Kutztown Borough ("Borough") Dear Solicitor Mooney:
I received your correspondence faxed on May I st which continues explaining your conclusion that the Purchase Order is not a "record" due to lack of official action upon it.
However, the Borough's responses remain unreconciled as to whether the requested Purchase Order, or record of the Purchase Order, exists or not. To.the extent that the record does not exist, kindly supply an attestation by the records custodian, or other person with knowledge, in conformity with 42 Pa. C.S. §6103 swearing to the lack of a record.
As your response to my request for supplementation focused upon the "record" definition defense, absent an attestation being faxed to my attention by close of business May 5th, the OaR will accept your May 1st Letter as confirming the definition as the Borough's sole defense.
Thank you in advance for your anticipated cooperation with this matter.
Very truly yours,
~6'L-.
Lucinda Glinn Appeals Officer
cc. Gennaro A. Marino
Mr. Gennaro A. Marino
409 West Main Street Kutztown, P A 19530
Commonwealth Keystone Building I 400 North Street, 4th Floor Harrisburg, Pennsylvania 17120-0225
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MOONEY ESQ.LETTER TO OFFICE OF OPEN RECORDS 5-4-09

50 North Fifth Street P.O. Box 942

Reading, PA 19603-0942 Tel61O.376.6651 Fax 610.376.5243 www.barley.com

VIA FACSIMILE

Lucinda Glinn, Appeals Officer Commonwealth of Pennsylvania Office of Open Records Commonwealth Keystone Building 400 North Street, 4th Floor Harrisburg, P A 17120-0225

May 4,2009

Keith Mooney, Esquire Direct Dial Number: 610.898.7155 E-mail: kmooney@barley.com


Re: AP 2009-0272, Marino v. Kutztown Borough ("Borough")

Dear Appeals Officer Glinn:

In response to your May 4, 2009 correspondence and the correspondence received from Gennaro Marino which was received by your office on May 4,2009, I hereby respond as follows:

The purchase order which is the subj ect of Mr. Marino's request was a computer generated purchase order, generated by the Borough of Kutztown for review by the Borough Council. There does exist a physical copy of a computer generated purchase order, however, there does not exist a copy of the purchase order or an original of the purchase order executed by the Borough of Kutztown and Blonder Tongue Laboratories, Inc. To the extent that I in any of my earlier correspondence gave the impression that the purchase order did not exist, I apologize and hope that this correspondence clarifies the record.

In the event that you require any further information regarding this matter, please do not hesitate to contact me at your earliest convenience.

Sincerely,

Keith Mooney, Esquire

KM/lad:25979 12_1
cc: Gennaro A. Marino


Reading' York' Lancaster' Berwyn' Hanover

MARINO REPLY TO OFFICE OF OPEN RECORDS 5-4-09

Gennaro A. Marino P.E.
409 West Main Street
Kutztown, Pa 19530
610-683-7977
Lucinda Glinn, Appeals Officer
Commonwealth of Pennsylvania
Office of Open Records
Commonwealth Keystone Building
400 North Street, 4th Floor
Harrisburg, Pa 17120

Re: AP 2009-0272, Marino v. Kutztown Borough

Dear Appeals Officer Glinn,

In response to the letter to you dated May 1, 2009 from Kutztown Borough Solicitor Mooney I would like to comment on the following statement, “I should note that the Secretary who prepared the agenda for the Borough Council meeting utilized poor terminology in indicating that the Purchase with Blonder Tongue Laboratories in the amount of $119,511.87 for machinery etc.”

This is the same Official Borough Secretary Bonnie Bray who would not tell me where she obtained the figure of $119,511.87 for the agenda and then also as the Borough’s Right to Know Officer told me in person and in writing that the Purchase Order did not exist.

He also states in his letter it should have read, “to authorize the execution of a purchase order for Blonder etc.” This statement would only hold true if the Purchase Order was not already executed. This is one of the reasons the purchase order should be made public.

Solicitor Mooney’s letter is intentionally misleading. Making this Purchase Order public would not compromise Borough business in any way.

Should you require any further information on this subject I am readily available. Thank you.

Sincerely,


Gennaro A. Marino P.E.

CORRUPTION CLARIFICATION 5-4-09

Corruption Clarification 5-1-09 Gennaro A. Marino P.E.
www.marinoreport.com
As per the Borough Code all purchases of $10,000 or more, unless exempted, shall be bid publicly. The Purchase Order amount of $119,511.87 was agreed upon with Blonder Tongue Laboratories Inc. in early March of 2009 without a public bid. After my complaint the P.O. was withdrawn and Borough Officials Bonnie Bray and Frank Caruso lied and stated to me personally that the P.O. did not exist. Bonnie Bray states this in a denial of my Right to Know Request which is a signed Borough Document that I have in my possession. In a letter to the Office of Open Records Borough Solicitor Mooney stated the P.O. was not a record which disagrees with Bonnie Bray and Frank Caruso. Counselor Mooney states the P.O. is not a record means it exists. To illegally reach an agreement in price of more than $10,000 with a contractor without a public bid, stage a bid and then lie about it is a crime. And Mayor Green, the Borough Council, Borough Manager\Treasurer Khalife, Secretary Bray, HU head Frank Caruso and Assistant Treasurer Samilo were all involved and are well aware of the P.O. and the cover up. Borough Officials do not want the P.O. to be published because it is incriminating. This is a serious violation of the law and all of the above statements can be documented. I hope I have made myself clear.

CORRUPTION EXPLANATION 5-1-09

Corruption Explanation 5-1-09 Gennaro A. Marino P.E.
To sum up my actions of questioning and accusing the Borough of lying about and rigging a bid with contractor Blonder Tongue Laboratories Inc of Old Bridge, N.J. In early March the Borough had a Purchase Order with Blonder for $119,511.87 and as per the Meeting agenda was going to ratify it at the March 17, 2009 Council Meeting. I stated it was illegal because it was not bid publicly and the Council removed it from the agenda and put the contract out for bid. Under the Right to Know law I asked to see the Purchase Order. I received a reply in writing from Borough Secretary\Right to Know Officer Bonnie Bray that the Purchase Order does not exist. I was also told personally by Secretary Bray and Information Technology Director Caruso that the P.O. does not exist. I appealed the RTK decision to the Office of Open Records and Borough Solicitor Keith Mooney replied to the OOR stating that the P.O. was not a record and the Borough did not have to produce the P.O. My blog of April 29, 2009 is a scan of the letter from the OOR to Solicitor Mooney stating his explanation disagrees with Secretary Bray’s reason.
Solicitor Mooney is now in the process of answering the Office of Open Records.
The point I am making is that the Borough does not want the Purchase Order made public because it shows the Borough had an agreement with Blonder for $119,511.87 without a bid or even a check price. This P.O. clearly exposes the conspiracy that the Borough was rigging a bid to give the contract to a predetermined bidder at a predetermined price which is a criminal act.
This P.O. is a public record but the Borough does not want it made public because it is incriminating. Mayor Green, the Borough Council, Borough Manager\Treasurer Khalife, Assistant Treasure Samilo, Borough Secretary Bray, ITD Caruso are all aware of what is going on and are all part of the conspiracy . The Borough Elected Officials can be indicted and can be sued personally because they knew the bid was illegal at the time of the vote. There is much more to this incident which I am sure will come out at a later date.