CITY OF PHILADELPHIA LAW DEPARTMENT

ONE PARKWAY BUILDING

Diana P. Cortes
City Solicitor

Omar Rabady
Deputy City Solicitor
Right to Know
[email protected]

December 23, 2022

VIA EMAIL
Appeals Officer Erika Similo
Office of Open Records
[email protected]

Re: Shannon v. City of Philadelphia City Council OOR Dkt. AP 2022-2620

Dear Appeals Officer Similo:

I represent the City of Philadelphia (City) City Council (Council) in the above-captioned appeal. The
City reserves the right to provide further evidence if there are appeals beyond the Office of Open
Records (OOR). Bowling v. Office of Open Records, 990 A.2d 813, 822-23 (Pa. Cmwlth. 2010), aff’d
75 A.3d 453 (Pa. 2013). For the reasons described below, this appeal should be denied in part and
dismissed as moot in part.

Procedural Background

On October 6, 2022, the City received a request from Ms. Shannon pursuant to the Pennsylvania
Right-to-Know Law (RTKL), 65 P.S. § 67.101 et seq, seeking:

“A copy of all correspondence between constituents and any/all of the following: the
officers of Councilmember Brooks, Richardson, Gym, Oh, Thomas, Green, and/or
Domb relating to the Washington Ave repaving project sent or received between
1/1/20 and present” (October 6, 2022).

The City didn’t respond to the request due to an administrative error. The original due date for the
City’s response to this appeal was December 14, 2022. On December 14, 2022, The Office of Open
Records granted the City an extension of time until December 23, 2022, to respond to this appeal. This
correspondence constitutes the City’s response to the appeal.

Argument
This Appeal Should be Denied Because it is Insufficiently Specific

This appeal should be denied because the underlying request is insufficiently specific. A request must
“identify or describe the records sought with sufficient specificity to enable the agency to ascertain
which records are being requested[.]” 65 P.S. § 67.703. See, e.g., Lauff v. Fort Cherry Sch. Dist.,
O.O.R. Dkt. AP 2010-0128, 2010 WL 2128828 (Pa. O.O.R. Mar. 15, 2010) (holding that the
determination of sufficient specificity “is based on a detailed factual analysis on a case by case basis,”
considering factors such as “time restrictions, subject matter, date restrictions, parties involved, [and]
types of records.”); accord Aliota v. Millcreek Twp. Sch. Dist., O.O.R. Dkt. AP 2014-0930, 2014.

WL 3828161 (Pa. O.O.R. July 31, 2014) (“The determination of whether a request is sufficiently
specific is made on a case-by-case basis.”). “An open-ended request that gives an agency little
guidance regarding what to look for may be so burdensome that it will be considered overly broad.”
Montgomery Cnty. v. Iverson, 50 A.3d 281, 283 (Pa. Cmwlth. 2012) (en banc). It is clear that the
context in which a requester makes a request matters, as well as the context of what their request seeks,
particularly with regard to the specificity of the request. Montgomery Cnty. v. Iverson, 50 A.3d 281,
283 (Pa. Cmwlth. 2012) (en banc) (“the specificity of a request must be construed in the request’s
context”).

The requester has not provided the names, email addresses, or phone numbers of the constituents that
contacted the City regarding the repaving of Washington Avenue, for the requested time period.

City Council does not maintain a list of names, phone numbers, or email addresses of constituents who
contacted City Council Offices regarding the Washington Avenue repaving project over the period of
more than two years implicated in this request. Affidavit of Feige Grundman, Divisional Deputy City
Solicitor (“Grundman Aff.”), ¶7.

The City believes the combination of the City not having this information and the requester not
providing it, alone, makes the request insufficiently specific. No other search or combination of
searches could isolate communications to constituents or isolate communications from constituents
regarding the Washington Avenue repaving project for the requested time period.

Further, the requester is asking for about 140 City Council accounts to be searched. Even if the City’s
Office of Information and Technology (OIT) performed a search of any email that came from or to a
domain other than “phila.gov” – over a period of more than two years for more than 140 accounts,
including a keyword such as “Washington” such a search would not compile successfully to return
results. The results also would not be limited to communications to and from constituents even if it did
compile. Grundman Aff. ¶11.

Even after going through the reasonable interpretation steps we would typically use to narrow an
overly broad RTKL request—such as identifying City Council accounts that would be most likely to
have received correspondence from constituents regarding the Washington Avenue repaving project, as
well as working to identify keywords or other search parameters from information in the request that
would narrow the scope of the search—we were not able to create search instructions for OIT that
would yield a successful search. Grundman Aff. ¶12.

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In such instances where we cannot use our technology to perform the search, the only remaining option
is to have the individuals most likely to have responsive records manually search through their
accounts for responsive records. Grundman Aff. ¶13.

The Appeal Should Also be Denied Because it Requires the City to Conduct Legal Research

For the City to attempt to fulfill this request, it would have to conduct legal research. The
Commonwealth Court has found that “[a] request that explicitly or implicitly obliges legal research is
not a request for a specific document; rather it is a request for someone to conduct legal research with
the hopes that the legal research will unearth a specific document that fits the description of the
request.” Askew v. Pa. Office of the Governor, 65 A.3d 989, 993 (Pa. Commw. Ct. 2013); see also 65
P.S. § 67.703.

City Council Does not have a list of constituents, constituents’ email addresses, or constituents’ phone
numbers, who contacted their offices regarding the Washington Avenue repaving project. Affidavit of
Jessica Sánchez, Legislative Counsel & Chief Ethics Officer, City of Philadelphia City Council ¶11.
(Sánchez Aff). The only way to generate such a list would be to manually create it from scratch using
personnel to sort through all possibly implicated email accounts. Grundman Aff ¶9.

The OOR has held agencies are not required to conduct this type of research. See Deeter v. Pa. Board
of Probation and Parole, OOR Dkt. AP 2017-0046, 2017 PA O.O.R.D. LEXIS 172; Whitaker v. Pa.
Dep’t of State, OOR Dkt. AP 2014-1463, 2014 PA O.O.R.D. LEXIS 1191 (holding that the agency is
not required to perform legal research to identify officials involved in the creation of Title 18.)
Similar to Whitaker, to fulfill this request, in this case, the City would need to identify individuals who
interacted with government employees. One difference is that in this case, it’s not officials that work
with the agency, but outside actors who merely contacted the agency, which is more challenging
research, since the State has more access to officials it worked with than the City has to constituents
that contacted it.

The City Reasonably Interpreted the Request

Jessica Sánchez, Open Records for City Council, did inquire with the Council Offices that still existed
at the time of the appeal, and asked them to provide correspondence from constituents, whether in
electronic or paper format, regarding the repaving of Washington Avenue, for the requested time
period. Sánchez Aff. ¶11. She also contacted City Council’s IT support staff and asked them to
conduct a search for records concerning the Washington Avenue repaving project. Sánchez Aff. ¶12

The City is providing these records, subject to the redaction of Personal Identifiable Information.
Grundman Aff. ¶16. The City performed manual searches to the best of its ability for the Offices of
Council Members Brooks, Richardson, Oh, and Thomas. The Offices of Councilmembers Green,
Gym, and Domb no longer exist, and they no longer have staff members that can be contacted to run
manual searches. Grundman Aff. ¶14. Sánchez Aff. ¶4.

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The City’s interpretation of the underlying request was reasonable. An agency is permitted to make a
reasonable interpretation of the meaning of a request for records. See Spatz v. City of Reading, OOR
Dkt. AP 2013-0867, 2013 PA O.O.R.D. LEXIS 513; Signature Info. Solutions, Inc. v. City of Warren,
OOR Dkt. AP 2012-0433, 2012 PA O.O.R.D. LEXIS 557. To resolve this issue, the OOR must
determine whether or not the agency’s actual interpretation of a request is reasonable. See Spatz, 2013
PA O.O.R.D. LEXIS 513. The OOR determines this from the text and context of the request alone, as
neither the OOR nor the Requester are permitted to alter the request on appeal. See Pa. State Police v.
Office of Open Records, 995 A.2d 515 (Pa. Commw. Ct. 2010); Staley v. Pittsburgh Water & Sewer
Auth., OOR Dkt. AP 2010- 5 0275, 2010 PA O.O.R.D. LEXIS 256 (stating that “a requester may not
modify the original request as the denial, if any, is premised upon the original request as written”).
Instead of outright denying the request, the City took the route of its only remaining option, which was
to have the individuals most likely to have responsive records manually search through their accounts
for responsive records. Grundman Aff. ¶13.

Personal Email Addresses, Cell Phone Numbers, and Home Addresses Were Properly Redacted
From the Responsive Records.

The responsive emails include personal email addresses, cell phone numbers, and home addresses of
constituents. Such information is exempt as personally identifying information as well as in certain
instances information protected by the right to privacy. See, e.g., Off. of Lieutenant Governor v. Mohn,
67 A.3d 123, 133 (Pa. Commw. Ct. 2013) (“While the secondary e-mail address in question is used to
conduct agency business, it still falls within Section 708(b)(6)(i)(A) of the RTKL's exemption of ‘a
record containing all or part of a person's ... personal e-mail address’ because, even though it is being
used to transact public business, nonetheless, it is still personal to that person.); Pennsylvania State
Educ. Ass'n v. Commonwealth Dep't of Cmty. & Econ. Dev., 637 Pa. 337, 364, 148 A.3d 142, 158
(2016) (holding a constitutional right to privacy in an individual’s home address). This information
was properly redacted from the provided records.

Conclusion

For the foregoing reasons, the City respectfully requests that the instant appeal be denied in part and
considered moot in part. Thank you for your consideration in this matter.

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Respectfully submitted,

Omar Rabady

CC: Feige Grundman

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 Shannon v. City of Philadelphia City Council OOR Dkt. AP 2022-2620

Feige Grundman, Divisional Deputy City Solicitor, City of Philadelphia Law Department

My name is Feige Grundman, and I am the Divisional Deputy City Solicitor for the City of Philadelphia
(City) Law Department’s Right to Know Division. I also serve as the Open Records Officer for the Law
Department. As such, I am authorized to execute this affidavit. I state the following to the best of my
knowledge, information, and belief under penalty of perjury pursuant to 18 Pa.C.S. § 4904 relating to
unsworn falsification to authorities:

1. I have served in my current role in the Law Department for more than three years. During this
time, I have become very familiar with the processes and procedures of collecting, processing,
and reviewing email records of City employees, including the email of City Council (Council)
members and their staff.

2. I am familiar with the above-captioned appeal and RTKL request submitted by Megan
Shannon, seeking:

A copy of all correspondence between constituents and any/all of the following: the
offices of Councilmember Brooks, Richardson, Gym, Oh, Thomas, Green and/or
Domb, relating to the Washington Ave repaving project sent or received between
1/1/20 and present.

3. When the City receives a request seeking email, we typically work with the Office of
Innovation and Technology (OIT) to run searches of email accounts.

4. OIT runs MS365 searches based on instructions from the Law Department, which OIT uses to
create a custom code based on each of the search criteria identified as far as keywords, time
period, and specific user accounts.

5. Having coordinated several dozen email searches through OIT over more than the past three
years in my capacity as Deputy Divisional City Solicitor in the Right to Know Unit, I have
ample experience in OIT’s technological limitations regarding such searches.

6. For example, due to the large size of most City Departments/Offices, it is not possible to
perform a search of the MS365 account of every member of that City Department/Office
because the custom code OIT creates will crash before it can fully run the search. In other
words, while such custom code can be written asking the system to search all members of a
City Department/Office, due to the enormous size of the combined accounts being searched,
the code will never compile, and search results will never be returned.

7. City Council has a staff of more than 200 individuals at any given time across its City Council
Member Offices. This request implicates seven City Council Member Offices over a period of
more than two years. Typical staff turnover during this time also increases the scope of the
search. A search of all of these individuals’ MS365 accounts will not successfully compile;
such a search will crash before it can complete and return search results.

8. Because it is not possible for the existing systems to run such broad searches of all accounts of
a City Department/Office, when a requester does not specifically name(s) of City employees
whose records they wish to have searched, our standard practice is to ask the
Department(s)/Office(s) most likely to have responsive records to identify the members of that
 Department/Office most likely to have communicated regarding the topic and time period
identified in each particular request.

9. City Council does not maintain a list of names and/or email addresses of constituents who
contacted City Council Offices regarding the Washington Avenue repaving project over the
period of more than two years implicated in this request. Such a list could not be easily
compiled based on other City Council records; the only way to generate such a list would be to
manually create it from scratch using personnel to sort through all implicated email accounts.

10. Without names or email addresses of constituents, OIT would have to perform a search of any
email that came from a domain other than “phila.gov” – over a period of more than two years
for more than 140 accounts, such a search would not compile successfully to return results.
The results also would not be limited to constituents.

11. Even adding in keywords such as Washington Avenue and/or repaving would likely not result
in a search that could compile. OIT’s search process is not able to use typical Boolean operators
(and, or, not, within x words, etc.) to limit the search. This means that any instance of even one
of the words Washington, Avenue, or repaving over the past two years in email would be
returned as a hit in the search; the potential volume of that search means that OIT’s code would
not compile successfully.

12. Even after going through the reasonable interpretation steps we would typically use to narrow
an overly broad RTKL request—such as identifying City Council accounts that would be most
likely to have received correspondence from constituents regarding the Washington Avenue
repaving project, as well as working to identify key words or other search parameters from
information in the request that would narrow the scope of the search—we were not able to
create search instructions for OIT that would yield a successful search.

13. In such instances where we cannot use our technology to perform the search, the only remaining
option is to have individuals most likely to have responsive records manually search through
their accounts for responsive records.

14. Three of the City Council Members implicated in this request have resigned to run for Mayor
of Philadelphia: Alan Domb, Derek Green, and Helen Gym. It was therefore not possible to
perform manual searches for responsive records of these Offices.

15. The City performed manual searches to the best of its ability for Offices of Council Members
Brooks, Richardson, Oh, and Thomas.

By on 12/23/2022

Feige Grundman
City of Philadelphia
Law Department
 Shannon v. City of Philaddphia City Council OOR Diet. OOR Diet. AP 2022-2620

Jessica Sanchez, Senior Legislative Counsel & Chief Ethics Officer, City of Philadelphia City
Council

My name is Jessica ~nchez, and I am a Senior Legislative Counsel & the Chief Ethics Officer for the City
Council (Council) of the City of Philadelphia (City). I also serve as the Open Records Officer for Council. As
such, I am authorized to execute this affidavit. I state the following to the best of my knowledge,
information, and belief under penalty of perjury pursuant to 18 Pa.C.S. § 4904 relating to unsworn
falsification to authorities:

1. I have worked for Council for about 6 years. During this time, I have become very familiar
with the processes and procedures of Council, the type of records that are stored, how
these records are stored, and what kinds of summary information are stored in our
databases.

2. I am familiar with the City employees that work or worked in the offices of Councilmembers
Brooks, Richardson, Gym, Oh, Thomas, Green, and Domb, and how to retrieve records from
those offices, including communications from constituents.

3. I am familiar with the above-captioned appeal and RTKL request submitted by Megan
Shannon, seeking:

A copy of all correspondence between constituents and any/all of the following: the
offices of Councilmember Brooks, Richardson, Gym, Oh, Thomas, Green and/or
Domb, relating to the Washington Ave repaving project sent or received between
1/1/20 and present.

4. The Offices of Councilmembers Green, Gym, and Domb no longer exist, and they no longer
have staff members working on their behalf for me to contact.

5. After receiving the notice of appeal, I contacted the offices of Brooks, Richardson, Oh, and
Thomas. I asked if they could locate correspondence between constituents and their
respective offices regarding the Washington Avenue repaving project received between
1/1/20 to the date of the underlying appeal (10/6/2022).

6. The Office of Councilmember Brooks did not have any correspondence between their office
and constituents concerning the Washington Avenue Repaving Project, for the period
between 1/1/20 to the present.

7. The Office of Councilmember Oh did not have any correspondence between their office and
constituents concerning the Washington Avenue Repaving Project, for the period between
1/1/20 to the present.

8. The Office of Councilmember Richardson had correspondences regarding the Washington

10. The above-mentioned Offices do not have folders, either electronic or physical, that are
specific to constituent communications regarding the Washington Avenue repaving project.

11. The above-mentioned offices also informed me that they do not have a list of constituents,
constituents' email addresses, or constituents' phone numbers, who contacted their offices
regarding the Washington Avenue Repaving Project.

12. I also contacted City Council's IT support staff and asked them to conduct a search for
records concerning the Washington Avenue Repaving Project, for the period between
1/1/20 to the present. The resulting search did not locate any relevant records.

13. It is understood that this does not mean that record(s) do not exist under another spelling,
another name, or another classification.

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City of-Philadelphia
City Council