In the matter of Jared Kofsky and ABC News v Butler Township, OOR Docket No.: AP 2024-1982 (8/29/2024), various records were requested relating to the rally on July 13, 2024, involving the shooting of Donald Trump.  Butler Township was required to produce some of the requested records, but others were exempt from disclosure or were for records that the OOR lacked jurisdiction.  The records requested included:

  • recordings of 911 calls, and
  • audio/video footage. 

The OOR determined that:

  • The 911 recordings are exempt from disclosure (unless the agency or court determines that the public interest in disclosure outweighs the interest in nondisclosure), 65 P.S. § 67.708(b)(18)(i) and (ii).
  • The RTKL does not apply to audio/video recordings made by law enforcement agencies.  These recordings must be sought through Act 22 of 2017 of the Judicial Code by submitting a written request to the open records officer for the law enforcement agency, 42 Pa.C.S. 4 §§ 67A02-67A03.  

In the matter of Frank Curry and Foiabuddy, OOR Docket No.: AP 2024-1311 (June 20, 2024), the OOR determined that the South Western School District did not have a duty to fulfill an online request seeking IT related information because the district could not confirm the requester was qualified.  A “requester” is defined by the RTKL as “[a] person that is a legal resident of the United States….” See 65 P.S. § 67.102.  Thus, under the RTKL, a requester must both be a “person” and “a legal resident of the United States.”  The district submitted evidence that it could not determine whether the Requester was, in fact, “Frank Curry”, a resident of the United States or his contact information because the Requester had used FOIABuddy’s anonymous on-line request function.   Because the District had submitted evidence tending to show that the Request was an anonymous request, the OOR determined that the district had met its burden of proof that the Request was anonymous and it was not required to respond.

In the matter of Tom Lisi and LNP Media Group, OOR Docket No.: AP 2024-1269 (June 14, 2024), Lancaster County argued that the disclosure of the type and amount of ammunition bought by the Lancaster County Sheriff’s Office would threaten individual security and public safety under 65 P.S. § 67.708(b)(1)(ii) and 65 P.S. § 67.708(b)(2).  To support its argument, the County cited to several prior OOR Final Determinations and presented an affidavit from the Chief Law Enforcement Officer.   

The OOR found that the instant request relating only to ammunition is distinguishable from the prior cases wherein the requests sought information regarding the type of weapons available to officers or procedures and tactics pertaining to weapons.  The OOR further found that the affidavit was speculative and did not contain the requisite level of detail establishing how the disclosure of ammunition would be reasonably likely to threaten officers’ security or jeopardize public protection activities. 

The OOR determined that the County’s speculative or general evidence did not sufficiently demonstrate a real and apparent risk of harm to individuals or the public at large, and therefore the County was required to disclose the amount and type of ammunition bought by the sheriff’s office. 

In the matter of Fein v. Chester County, OOR Docket No.: AP 2023-2043 (Sept. 26, 2023), the Office of Open Records (“OOR”) considered an appeal from the denial by Chester County of a request to provide unredacted copies of absentee-ballot information and mail-in ballots, files, applications for ballots and envelopes available, consistent with the access provisions of the Election Code. The eight page decision of the OOR explains why the redactions were not justified by either the Election Code or the Pennsylvania Right-to-Know Law. See 65 P.S. §§ 67.101, et seq.

The County appealed the OOR decision, but there was an issue about whether they appealed within the deadline of “30-days of the mailing date.”  On Feb. 15, 2024, there was a hearing in the Chester County Court of Common Pleas on the issue of whether or not the appeal by the County was timely, and the court asked the parties to submit written legal arguments. (A judge from another county was tasked with hearing the case.)

The Delaware County Court of Common Pleas recently affirmed a Determination of the Office of Open Records (OOR) to withhold documents that the court held were subject to the attorney/client privilege and the work-product doctrine.  See Cortes v. Middletown Township, et al., 110 Delaware County Reports 35 (Jan. 25, 2023).

Brief Background Facts:

This case involves multiple requests under the Pennsylvania Right to Know Law seeking documents from Middletown Township about communications between the township and companies constructing a pipeline through the township.  The companies whose communications with the township were sought had entered into an agreement pursuant to the Common Interest Doctrine to coordinate their resources to protect their common interests.

Legal Analysis:

The court explained the Common Interest Doctrine and how it applied to extend the attorney-client privilege with respect to the records that were withheld by the township.  The court referred to Pennsylvania cases upholding the Common Interest Doctrine where the parties share a substantially similar legal interest.  The Common Interest Doctrine allows various parties to retain separate legal counsel while at the same time protecting their common interests.  The four elements that need to be shown by a party asserting the doctrine were discussed in Pennsylvania Public Utility Commission v. Sunrise Energy LLC, 177 A.3d 348, 445-46 (Pa. Cmwlth 2018).

The court also explained why the work-product doctrine was an independent basis for certain records to be withheld.  The court provided citations to extensive authority explaining that well-established doctrine.

A recent decision is noteworthy for clarifying why the affidavit of a RTK Officer was not sufficient to carry the burden of the township to demonstrate an exemption based on a non-criminal investigation. In Middletown Township v. Cortes and Energy Transfer, 109 Del. Co. Rep. 1 (2021), which was published in the February 18, 2022 issue of the Delaware County Legal Journal, the Delaware County Court of Common Pleas affirmed in part a decision of the Office of Open Records that required the township to produce records of communications with a pipeline company and their lawyers. No assertion of attorney/client privilege was made.

Highlights

  • The court’s decision began with the basic principle undergirding the Right to Know Law that it is premised on the presumption that public records must be accessible for inspection and copying by anyone requesting them unless the records fall within specifically enumerated exceptions or are privileged–and the government agency has the burden to establish an exemption.
  • One of the key issues in this case was whether the “non-criminal investigation” exception applied to the request for records. The township based its argument for this exemption on an affidavit from the township’s RTK Officer. But the court held that the affidavit did not suffice to carry the township’s burden to establish an exemption because it was conclusory and not adequately detailed. For example, it failed to relate the records in the exemption log to any non-criminal investigation. The affidavit merely tracked the language of the statute without explaining why the records at issue were exempt from disclosure.
  • The court also rejected the argument that it did not balance the impact of releasing the records with the right of access to that information.

In the recent OOR determination in the matter of Zaid v. Upland Borough, OOR Dkt. AP 2021-2961 (Dec. 29, 2021), an appeal was rejected as premature in light of not taking into account the days that the government agency was closed due to the Christmas holiday. Thus, the agency’s 5-day period to respond had not expired at the time of the appeal. But the decision allowed for a new appeal to be filed at the appropriate time.

The Pennsylvania Commonwealth Court recently imposed fines for the bad faith response to a right-to-know request under the PA RTK law in the case styled: California University of Pennsylvania v. Bradshaw, 1491 C.D. 2018. The court also imposed the maximum statutory penalties. This is one of only a few cases in the 12-year history of the RTK law in which a court has imposed a penalty of fees for bad faith.

The PA Office of Open Records has a helpful summary of the case on its website.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

In a Final Determination entered on June 24, 2021, the OOR found that the Pennsylvania Department of Health (“DOH”) did not successfully prove that “records related to the investigation and tracking of personal protective equipment (“PPE”)” are confidential and protected from disclosure under the Disease Prevention and Control Law (“DPCL”). Todd Shepherd and Broad + Liberty v. Pennsylvania Department of Health, Dkt. No. AP 2021-0863 (June 24, 2021). The Request was accordingly granted in part and dismissed as moot in part.

Background and Facts: On March 19, 2021, Todd Shepherd and Broad + Liberty (collectively “Requester”) filed a Request with DOH seeking a copy of “any and all documents that record and/or track the identification, and/or the acquisition, and/or the purchase, and/or the distribution of … PPE by the … Department … for those documents created, received, and/or edited between the dates of March 1, 2020 to March 15, 2021….” Slip op. at 2. The Request specifically states that PPE includes gloves, masks, hand sanitizer, face shields and medical gowns used to prevent the spread of COVID-19. DOH obtained a 30-day extension of time in which to respond, and on April 26, 2021 denied the Request on the grounds that the responsive records are confidential under the DPCL. DOH also argued that the records are protected under RTKL Section 708 because they relate to a noncriminal investigation and contain personal health and identification information, slip op. at 2, and also because their disclosure would threaten personal security and public safety, id.

On April 28, 2021, the Requester appealed to the OOR. On May 28, 2021, DOH submitted a position statement, repeating its arguments that the records requested are confidential under the DPCL and that their disclosure would threaten public safety. The statement was supported with affidavits from Dr. Sharon Watkins, State Epidemiologist and DOH’s Director of the Bureau of Epidemiology, and from Andrew Pickett, Director of DOH’s Bureau of Emergency Preparedness and Response. DOH also provided records responsive to the part of the Request seeking information about the acquisition and purchase of PPE. The Requester provided no additional evidence on appeal.

Analysis and Holding: OOR’s analysis began with the principle that a record in the possession of a Commonwealth agency such as DOH is presumed to be public, and disclosable upon a RTKL request, unless exempted by a provision of RTKL or other law, or protected by a privilege, judicial order or decree. RTKL Section 708 places the burden of proving an exemption upon the agency.

After holding that the appeal was moot as to the records of the acquisition and purchase of PPE, OOR explained why the remainder of the requested records are protected from disclosure. The DPCL protects records of reports of disease. DOH argued that it also protects “records maintained as a result of any action taken in consequence of reports of diseases pursuant to the DPCL,” slip op. at 5 (emphasis in original). While OOR agreed that was true, it found that the Request in issue was not seeking records of action taken in consequence of reports of diseases.

“Rather, the Request is seeking records ‘that record and/or track the identification, … and/or the distribution of … PPE.’ It is certainly not disputed that COVID-19 is a reportable disease under the DPCL. However, the Department is attempting to correlate anything related to the COVID-19 pandemic, including the identification and distribution of PPE, to the confidentiality provisions of the DPCL, no matter how attenuated the link may be.” Slip op. at 7-8.

OOR concluded that DOH’s affidavits did not contain any specific statements or information that demonstrated that DPCL protected records of the identification and/or distribution of PPE.

Finally, OOR concluded that DOH’s affidavits also fail to show a threat to public safety from disclosure of the requested information. Though DOH provided evidence that a few thefts of PPE had occurred, it did not provide sufficient evidence to show that disclosure of documents “that record and/or track the identification … and/or the distribution of … PPE between the dates of March 1, 2020 to March 15, 2021” would be reasonably likely to threaten DOH’s response to the COVID-19 pandemic. Slip op. at 11. Accordingly, it ordered disclosure of those responsive records that had not yet been produced.

Bottom Line: Shepherd shows the importance of reading potentially applicable statutes as written when crafting a RTKL request. The DPCL protects reports of disease, not reports of all things that may be useful in controlling the spread of disease, such as the PPE referenced in the Request, and thus did not protect the records in question from disclosure.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

In a Final Determination entered on June 4, 2021, the OOR found that a request for “the names, ranks, and badge numbers” of all SEPTA police officers who asked for time off on January 6, 2021, was protected from disclosure by the right to privacy established by the Pennsylvania Constitution. Michael Mellon and the Defender Association of Philadelphia v. Southeastern Pennsylvania Transportation Authority, Dkt. No. AP 2021-0465 (June 4, 2021).

Background and Facts: On January 15, 2021, Michael Mellon, Esq. and the Defender Association of Philadelphia (collectively “Requester”) submitted a Right to Know Law Request to the Southeastern Pennsylvania Transportation Authority (“SEPTA”) seeking “the names, ranks, and badge numbers” of all SEPTA police officers who asked for time off on January 6, 2021–the day a crowd entered the Capitol Building in Washington, D.C. Slip op. at 2, 6.

On March 1, 2021, after receiving several extensions of time to respond, SEPTA denied the Request on the ground that it relates to a noncriminal investigation and was protected by Section 708 (b)(17)(vi) of the RTKL. OOR invited both parties to supplement the record. On March 17, 2021, SEPTA submitted a position statement and a supporting affidavit and reasserted its grounds for denial. SEPTA characterized the requested information as an investigative record that, if disclosed, would constitute an unwarranted invasion of privacy. Additional supporting information and argument were submitted by the Requester and SEPTA on March 29, 2021 and June 1, 2021, respectively.

Analysis and Holding: OOR began by stating the objective of the RTKL, which is to “empower citizens by affording them access to information concerning the activities of their government.” Slip op. at 3 (quoting SWB Yankees L.L.C. v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012)). By providing such access, RTKL makes it possible for citizens to scrutinize the actions of public officials and hold them accountable for those actions. Id. (quoting Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d, 75 A.3d 453 (Pa. 2013)).

Next, OOR eliminated the argument that the requested information relates to a noncriminal investigation. It observed that all of the requested information is available on routinely kept assignment sheets, which include information about all officers in SEPTA’s police force. Therefore, the information in question “exists in the normal course of business outside of whether a noncriminal investigation took place.” Slip op. at 4.

Finally, OOR reached the question of whether the requested information is protected by the right to privacy. Where requested information implicates personal information that is not expressly exempt from disclosure under the RTKL, OOR must balance the individual’s privacy interest in the information against any public benefit that would be gained from disclosure. OOR has previously found information similar to the “names, ranks, and badge numbers” sought by the Requester to be personal information. Moreover, Commonwealth Court precedent confirms that personal information about agency employees does not reveal anything significant about the workings of government agencies such as SEPTA. Slip op. at 5 (citing cases).

After reviewing the information at issue in this case in light of such prior authority, OOR found that the private interest of the SEPTA officers was greater than any public interest, and denied the Requester’s appeal.

Bottom Line: Mellon illuminates the difference between whether information about persons engaged in law enforcement is disclosable or protected. That difference lies in whether the requested information does, or does not, contribute to governmental accountability. Information about when particular agency employees wished to take personal time “invites only speculation as to the private actions of agency employees,” slip op. at 7, and tells us nothing about the operation of government or of an agency such as SEPTA.