Update (3/15/2018): The Pennsylvania Office of Open Records [OOR] ruled that the City of Pittsburgh must release to PublicSource the 11,092 emails it had located while conducting a records search for emails among city employees related to police IT contractor B-Three Solutions. The OOR ruled that those emails must be made public within 30 days unless the city chooses to appeal the ruling in Commonwealth Court. Barring evidence of “bad faith,” the OOR did not challenge the city’s argument that no relevant emails could be found between former police chief Cameron McLay and his chief of staff Eric Holmes.
The City of Pittsburgh is refusing to release emails between city employees referencing police IT contractor B-Three Solutions and its software projects, despite locating nearly 40,000 items that match keywords listed in public records requests.
Using the state’s Right-to-Know Law, designed to enable citizens to access public records, PublicSource filed requests for emails by providing names of city employees, keywords and a time period to enable the city to locate the public records.
The city has repeatedly denied the requests, arguing that they’re too vague. PublicSource has appealed several denials to the Pennsylvania Office of Open Records [OOR]. The OOR, an independent agency with binding authority, is expected to issue its decision in March.
The city’s ties to Plum-based contractor B-Three are at the heart of a whistleblower lawsuit filed Feb. 14 by a Pittsburgh police officer whose concerns about “waste and wrongdoing” helped launch investigations in 2015. Two city agencies continue to look into it. The FBI confirmed on Feb. 20 that it is no longer investigating the matter.
In October and November, PublicSource made numerous requests for email correspondence between city employees who mention B-Three or its software after being told by several sources that the email communications would shed light on concerns raised about the company’s projects during the tenure of former police Chief Cameron McLay.
The city refused to release a single email.
PublicSource filed records requests for the emails again on Dec. 1. This time, the requests narrowed the search terms to variations of B-Three Solutions and Automated Police Reporting System [APRS], the police bureau’s flagship data system built by B-Three. PublicSource limited the timeframe from 10 years in the first round of requests to four years. Further, instead of listing a dozen employee names in one document, PublicSource parsed it out into 33 individual requests of employee-to-employee email communication.
If a records case is decided in court, judges consider how clearly a request defines the following three factors: 1) the subject matter, 2) the scope of documents requested and 3) the time period covered.
The city denied our requests last month in the middle of negotiations with PublicSource’s attorney — Terry Mutchler, the former executive director of the OOR. On New Year’s Day, the city’s open records officer asked for a 30-day extension to process our requests. PublicSource granted a shorter extension on six requests and a 30-day extension on 27 others in hopes that the city would continue good-faith negotiations to make the documents public.
“I’ve handled upwards of 20,000 requests for public records,” Mutchler said. ”PublicSource provided one of the most specific requests for records that I’ve seen.”
But on Jan. 10, PublicSource learned the city denied all requests in full. The city in its denial stated that the requests for emails were not “specific enough.” More time wouldn’t help.
PublicSource filed appeals to the OOR on six of those denials.
Now, in appeal filings, the city explains that its two-person E-Discovery team and two-person open records team were overburdened at the end of the year with a high volume of records requests, holiday and sick leave from the flu. The city’s open records officer, Celia Liss, and Department of Innovation & Performance Director Lee Haller provided signed documents to the OOR attesting to the burden of the request and their workload.
Liss additionally wrote in the OOR filing that the city found nearly 40,000 items based on PublicSource’s open records request. A quarter of those items are at issue in this appeal.
“In my view,” Mutchler said, “the city has failed to meet the basic tests under the Right-to-Know law. They should release these without further taxpayer expense of an appeal.”
However, the city writes that its staff couldn’t determine which of the requested emails were pertinent to our request.
What the city deems a lack of specificity, its appeal explained, would force the city’s open records officer to make “impossible judgments 11,000 times.”
The city wrote that the keywords provided are “so vague that they are meaningless” and that the four-year time period over which PublicSource sought emails is too long. To make this claim, the city explains that “APRS” appears on the bottom right corner of all police reports and that “it makes no sense to copy and then redact” emails including that keyword.
For each of the six appealed requests, the city lists the total items located as 11,092. For instance, one request turned up 3,436 items sent between McLay’s chief of staff Eric Holmes and Kevin Acklin, who served as chief of staff to Mayor William Peduto during his first mayoral term.
Acklin told PublicSource he was not aware of corresponding with Holmes about the B-Three matter. He said he would “fully encourage the city to release all communications related to this.”
Not all searches revealed so many entries.
The city search did not find any emails containing the keywords between McLay and Holmes. A member of the city’s E-Discovery team described the result as “unusual” and conducted the search a second time. Still, no results.
Any communication between McLay and Holmes is of particular interest because they had asked officers to review police technology and specifically knew of concerns raised by patrol officer Souroth Chatterji in his whistleblower lawsuit. McLay took the concerns involving B-Three projects to the FBI.
PublicSource’s appeals involve seven current and former city employees: McLay; Holmes, currently an executive officer; Chatterji; Acklin; Nicole DeMotto, a former city contract employee who helped investigate the city’s ties to B-Three; Linda Rosato-Barone, the city’s deputy director of Public Safety and defendant in the whistleblower lawsuit; and Alexis Barone-Katze, daughter of the deputy director and a current employee of the Department of Innovation and Performance, also mentioned in the lawsuit.
For now, we’ve learned the following from city affidavits signed by the two E-Discovery team members and submitted by the city to the OOR:
- The city searched 1.5 hours to find 0 items sent between McLay and Holmes.
- The city searched 12 hours to find and upload 1,060 items sent between Rosato-Barone and Barone-Katze.
- The city searched 12 hours to find and upload 1,489 items sent between Holmes and DeMotto.
- The city searched 12 hours to find and upload 1,606 items sent between McLay and Chatterji.
- The city searched 12 hours to find and upload 3,436 items sent between Holmes and Acklin.
- The city searched 12 hours to find and upload 3,501 items sent between McLay and DeMotto.
This story was fact-checked.
Any questions or comments can be directed to Managing Editor Halle Stockton at firstname.lastname@example.org or 412-515-0065.
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