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.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

In a Final Determination entered on May 14, 2021, the OOR dismissed a RTKL Request for certain voter registration information because that information is expressly made available through the Pennsylvania Voter Registration Act; thus, its disclosure may not be sought under the RTKL. Michael Sheliga v. Pennsylvania Department of State, Dkt. No. AP 2021-0462 (May 14, 2021).

Background and Facts: On January 22, 2021, the Requester submitted a Request to the Pennsylvania Department of State (“Department”) for “[e]lectronic copies of voting data from [the] last election….including:

1. County data broken down by precinct….
2. Data for each type of voting location by day.
(a) How many people voted by mail each day (by county and/or precinct if such
data exists.)…
(b) How many people voted Early In Person by day (by county and/or office/satellite office)…
3. Registration data for each precinct….
4. Any other election data that your data folks would have handy with similar stats.

Slip op. at 2. The Department extended its time to respond by thirty days on January 29, 2021. On March 1, 2021, the Department sought an additional extension. When the Requester did not grant that extension, the Request was deemed denied. The Requester appealed to OOR on March 8, 2021.

On March 26, 2021, the Department submitted a position statement with a supporting affidavit, stating that the information sought in items 2 and 3 of the Request are available through the Pennsylvania Voter Registration Act (“PVRA”) and the Department’s regulations relating to that Act. The Requester responded that “any offer to provide a ‘Full Voter Export’ does not meet [the] [R]equest” because it doesn’t include “precinct voting totals or precinct registration data.” The parties maintained these respective positions throughout the appeal. During the appeal proceedings, the Department stated that portions of responsive records are available through the Commonwealth’s open data portal, and provided the Requester with the URL to that portal. In turn, the Requester withdrew items 1 and 4 of his Request.

Analysis and Holding: In its Final Determination, OOR concluded that, by providing the URL to the open data portal, the Department provided some of the records requested in items 2(a) and 3 of the Request. It also found that the Department submitted an affidavit proving that there are no records responsive to item 2(b) of the Request, and that the Department’s affidavit was sufficient to sustain its burden of proof because the Requester did not provide competent evidence of bad faith on the Department’s part. See slip op. at 6.

With regard to item 3, OOR found that the “registration data for each precinct” that the Requester sought is available under the PVRA. It observed that Commonwealth Court held in Pennsylvanians for Union Reform v. Pennsylvania Dep’t of State, 138 A.3d 717 (Pa. Commw. 2016) that the PVRA and the related Department regulations “comprehensively govern” the accessibility of voter registration information. Slip op. at 7. Because the PVRA comprehensively governs accessibility of voter registration information, the RTKL’s access provisions are superseded and do not apply to this Request. Id.

Bottom Line: Sheliga reminds us that not all public information in the possession of Pennsylvania government agencies must, or indeed can, be requested pursuant to the RTKL. The Voter Registration Act has its own requirements for disclosure of voter registration information to citizens, and the those requirements must be used to obtain such information–not the requirements of the RKTL. Sheliga also notes that a government agency that has placed information on the Internet by creating a web portal or other website may answer a RTKL request for such information merely by providing the Requester with the URL for that website.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

In a Final Determination entered on April 15, 2021, the OOR found that a request for e-mails to and from a number of agency staff or officials involving a large number of different subject matter terms, to be insufficiently specific, and that the Pennsylvania Department of Health (“Department”) was not required to respond to it. Carter Walker and LNP Media v. Pennsylvania Department of Health, Dkt. No. AP 2021-0460 (Apr. 15, 2021).

Background and Facts:

On February 2, 2021, Carter Walker and LNP Media (“Requesters”) submitted a Request to the Pennsylvania Department of Health (“Department”) seeking “correspondence to and from Department officials regarding various COVID-19 related keywords search terms for multiple periods of time encompassing January 22, 2020 through February 2, 2021.” Slip op. at 1. The Request targeted three different Department officials and stated generally that the subject matter of interest “is communications where the COVID-19 virus, the Department of Health’s response to it, Lancaster County’s response to it, testing and vaccination are discussed.” The Request also provided a number of keywords to be searched, including several different synonyms for “COVID-19 test,””COVID-19 vaccine,” “COVID-19” and “COVID deaths,” three different ways to denote the Department, several different hospital names, two different ways to say “long term care,” and the terms “mass vaccination” and “vaccine distribution.”

The Department asked for a 30-day extension in which to respond, and shortly after doing so denied the Request on the ground that it was insufficiently specific to allow the Department to identify the records sought. Requesters appealed.

Analysis and Holding:

In analyzing the specificity of the Request, OOR began by observing that it follows a three-part test set forth by Commonwealth Court. First, the subject matter of the Request “must identify the ‘transaction or activity’ of the agency for which the record is sought.” Slip op. at 7 (citing Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. 2015). Next, the scope of the Request must identify a discrete group of documents by type, recipient, or some other criterion. Id. Last, but not least, the Request should identify a finite timeframe for which the records are sought. Id. (citing Carey v. Pennsylvania Dep’t of Corrections, 61 A.3 d 367 (Pa. Commw. Ct. 2013). However, a request that is sufficiently specific under the other two parts of the test will not necessarily be found to be overly broad, while identification of a short timeframe will not suffice to make an overly broad request specific. Slip op. at 7.

OOR further observed that while a Request may use keywords instead of a subject matter description, a collection of broad keywords does “not provide a sufficient limiting context.” Even broad keywords may be sufficient limitation upon a Request that specifies senders or recipients of e-mails. Slip op. at 8. Here, the keywords in the Request “may pertain to a variety of Department activities….” Slip op. at 9. Because there were no additional parameters limiting the Request at issue to a particular “transaction or activity,” the Department would have had to review all potentially responsive files and make judgments about the relationship of each document to the Request in order to be able to respond. Slip op. at 10. Thus, OOR held that the Department’s denial of the Request was proper.

Bottom Line:

Requesters failed because, in their eagerness to obtain as much information from the Department as possible, they cast their net too broadly. Instead of focusing on COVID testing, or COVID vaccination, or any one of the other topics referenced in their list of keywords, Requesters attempted to craft a Request that would cover all those topics at once. This Walker decision demonstrates that a request using a large number of terms about multiple related but discrete topics is less likely to succeed.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On February 26, 2021, the OOR entered a Final Determination holding that responsive documents in the possession of a company hired by a Commonwealth agency to “perform a governmental function on behalf of the agency” are producible under Section 506 (d) of the RTKL. Tim Wachter v. Pennsylvania of State, OOR Dkt. No. AP 2021-0292 (Feb. 26, 2021). The relevant “governmental function” in this case was the Department’s dissemination of messages encouraging people to vote and register to vote.

Background and Facts: On November 3, 2020, the Requester submitted a Request to the Pennsylvania Department of State (“Department”) seeking four kinds of records about different kinds of messages encouraging Pennsylvania residents to vote. Items 1 and 2 of the Request were about a media campaign where the Department arranged to have airplanes flying banners with “Return your Ballot” and “Vote Today” messages on them in various parts of the state. In particular, Item 2 sought:

“[a]ll emails or other correspondence, memos or documents which deal with selecting or directing which municipalities, voting districts or areas that the planes are to fly. In other words, document dealing with how the targeted areas were selected?”

Items 3 and 4 were about a mailer that was allegedly sent from VotesPA, with a similar pro-voting theme.

On November 10, 2020, the Department requested a 30-day extension to respond pursuant to RTKL Section 902(b). Thirty days later, the Requester agreed to an additional extension of time until December 14, 2020. Because there was no response by December 14, 2020, the Request was deemed denied.

On December 15, 2020, the Department provided a purchase order issued to Red House Communications, Inc., a vendor it uses for media purchases (“Red House”). The department claimed that any other records relating to Red House’s services as to the airplane campaign were protected from disclosure under RTKL Section 708 (b)(10)(i) because they were “internal, predecisional, and deliberative,” and that there were no responsive documents relating to the VotesPA mailer because the Department did not send it or have it sent.

The Requester appealed, and both parties were given the opportunity to supplement the record. The Department submitted two affidavits in support of its position. The Requester submitted a position statement contending that responsive records in Red House’s possession were producible under RTKL Section 506(d). On February 17, 2021, the Department submitted a supplemental position statement and a copy of a contract between Red House and a company called Van Wagner Aerial Media, LLC (“Van Wagner”), relating to the airplane campaign.

Analysis and Holding: The OOR concluded that the purchase order and Red House/Van Wagner contract were a sufficient response to Item 1, so the appeal was moot to that extent. Similarly, OOR found that the Department met its burden of proving that it had no records responsive to Item 2, because the Department’s records relating to the airplane campaign other than the purchase order and contract were internal, predecisional, and deliberative. Slip op. at 5 (citing and quoting RTKL Section 708 (b)(10)(i)(A). The Department also met its burden as to Items 3 and 4, because its affidavits established that the VotesPA mailer did not come from the Department.

However, OOR agreed with the Requester that documents responsive to Item 2 in the possession of Red House were, for purposes of the RTKL, public records of the Department that had to be produced under RTKL Section 506 (d). Section 506(d) provides in relevant part:

A public record that is not in the possession of an agency but is in the possession
of a party with whom the agency has contracted to perform a governmental function
on behalf of the agency, and which directly relates to the governmental function
and is not exempt under this act, shall be considered a public record of the agency….

Slip op. at 7 (quoting 65 P.S. § 67.506(d)(1)).

For documents in Red House’s possession to be producible under the RKTL, both of the following needed to be true: 1) Red House was performing a governmental function on behalf of the Department, and 2) the documents in question directly relate to Red House’s performance of that governmental function. OOR concluded, without much discussion, that the Department is responsible for regulating voting, which includes both the registration of voters and the sending of messages encouraging people to vote. Thus, dissemination of information that encourages voting is a government function that was delegated to Red House here. Slip op. at 8 (citing generally the Voter Registration Act, 25 Pa. C.S. §§ 1101 et seq.).

With regard to the second factor, documents and information are producible from a contractor performing a governmental function if it has “‘a direct bearing on the third-party contractor’s obligations’ under the contract.” Slip op. at 9. In this case, the records sought from Red House by Item 2 of the Request were not records relating to providing airplanes and banners with messages. The records at issue related to the selection of geographical areas to be targeted with the pro-voting messages, which is an integral part of the Department’s function. “…[T]he Request is related to what was performed and how it was performed; it does not seek information about who performed it.” Slip op. at 10. For those reasons, OOR ordered Item 2 documents in Red House’s possession to be produced, other than documents identified by the Department as “internal, predecisional, and deliberative.” Id.

Bottom Line: Wachter reminds us that one function of RTKL Section 506 (d) is to prevent an agency from inappropriately protecting otherwise producible documents from disclosure by delegating one of its tasks to an independent contractor. If the task performed by the contractor is a “governmental function” of the agency that hires it, a requester may obtain documents relating to that task under the RKTL by requesting them from the agency. (1)

Footnote

(1)  However, the Final Determination did not cite any particular section
of the Voter Registration Act that requires the Department to
“disseminate information encouraging voter registration and
participation.” See Slip op. at 8.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

The OOR issued a Final Determination recently, holding that a Request seeking election-related data does not necessarily need to state a time period from which records are being requested in order for the request to be sufficiently specific under Section 703 of the RTKL. Abby Pakutz v. Montgomery County, Dkt. No. AP 2021-0060 (Feb. 5, 2021).  

Background and Facts:   The requester submitted a request to Montgomery County (“the County”) on November 20, 2020, seeking the following categories of records:

“[1.] A copy of all contracts with individuals, organizations, corporations, or any

other legal entities that provide[] access to election data, voting records, poll books,

and any other similar elector information. (“Item 1″)

[2.] Also, a copy of any electronic security camera footage of the canvas[s]ing and

pre-canvas[s]ing process and the securing of absentee and mail-in ballot envelopes

prior to canvas[s]ing and pre-canvas[s]ing.” (“Item 2”) (Slip op. at 1).

The Request was deemed denied on December 28, 2020, because the County failed to respond to the Request after a 30-day extension.  The County submitted an untimely response to the Request on December 29, 2020, which included a copy of its February 6, 2019 contract with Dominion Voting Systems, Inc.  The Requester appealed the denial on January 8, 2021, and the County responded on January 11, 2021 with a copy of its December 29, 2020 response, along with other responsive records.  The County contended that it had responded to Item 1 of the Request and that Item 2 is insufficiently specific, and thus need not be answered under RTKL Section 703.

Analysis and Holding:  The Requester did not dispute the County’s position that its response to Item 1 was sufficient, so the appeal was held to be moot as to that item.  For that reason, the Final Determination focuses upon the specificity challenge with regard to Item 2.

OOR begins its analysis by observing that Pennsylvania courts have construed Section 703 as relying upon the common meaning of words and phrases, because RTKL is remedial litigation that must be interpreted so as to maximize citizen access to agency information.  Commonwealth Court has employed a three-part test of specificity in construing Section 703.  It looks to see to what extent the request sets forth:

“(1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought.” 

Slip op. at 5 (citing Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A.3d 1121, 1124-25 (Pa. Commw. 2015).  

The Pittsburgh Post-Gazette decision found that the “subject matter” of a request must identify “the ‘transaction or activity’ of the agency for which the record is sought.  Pittsburgh Post-Gazette, 119 A.3d at 1125.  In addition, Commonwealth Court precedent has found it sufficient for a requester to seek all records relating to a specific project, provided that the request is limited to particular types of records, and identifies a finite period of time for which records are being sought.  Slip op. at 5.  

Item 2 of the Pakutz Request identifies a particular type of record, namely electronic security camera footage.  The Request also specifies the subject matter of the requested records, namely, the canvassing and pre-canvassing and securing of absentee and mail-in ballot envelopes.  But Item 2 does not explicitly provide a particular timeframe for the records sought, and the County took the position that this failure was fatal.  

OOR disagreed.  It noted that Commonwealth Court has held that a request’s specificity must be construed in the context of the request.  Slip op. at 6 (quoting Montgomery County v. Iverson, 50 A. 3d 281, 284 (Pa. Commw. 2012).  OOR itself previously construed a request as sufficiently specifying a timeframe “where the subject or scope of the request implies a necessary period of time.”  Id. (citing Nello Construction v. Greater Latrobe School District,  OOR Dkt. AP 2019-0988, 2019 PA O.O.R.D. LEXIS 984 (OOR Sept. 3, 2019)).

OOR noted that the County’s responses to Item 1 are based upon an inference that the its current contract with Dominion Voting Systems, i.e., the contract in effect during the most recent election, was responsive.  That inference establishes a timeframe for the Request, which OOR concluded should apply to Item 2 as well. 

Moreover, OOR found that the references in the request to “pre-canvassing” and “mail-in ballots” necessarily indicate that the Request refers to the 2020 general election, because security issues relating to mail-in ballots were a “well-known and well-publicized concern.”  Slip op. at 6.  Consequently, OOR ordered the County to produce security camera video footage from the 2020 general election as identified in Item 2.  

Bottom Line:  By holding that the courts do not ignore the context of events applicable to a particular request, OOR reminded the parties that it will not ignore the spirit of the RTKL by demanding literal compliance with the timeframe requirement when circumstances show that the agency was well aware of the timeframe for the information being requested.  Hopefully OOR will continue to construe election cases under this standard.

 

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On July 27, 2020, Act 77 of 2020 (“Act 77”) became law without Governor Wolf’s signature, and is codified as 71 P.S. §§ 720.301, et seq.

In a July 28, 2020 press release, Governor Wolf characterized Act 77 as clarifying “that various data and models related to a disaster declaration are public records” for purposes of the RTKL. A closer look at the Act indicates that something different is going on–namely, that the Act creates an exception to the Disease Prevention and Control Law (“DPCL”) which protects “records of diseases” from production except when authorized by public health officials. Act 77 can be read as defining “records of diseases” and planning models based upon that as producible, but only if they relate to a “disaster declaration” such as the March 6, 2020 declaration made with regard to the COVID-19 pandemic.

For anyone interested in filing RKTL requests for information about the impact of COVID-19 and the decision making process involved in the March 6 declaration and related orders, Act 77 is essential reading. We summarize the provisions of the Act below.

Section 301 of the Act contains definitions of terms that are fundamental to Act 77. Some of these definitions are not identical to those in the RTKL. In particular, the definitions of “Commonwealth Agency,” “Disaster declaration” and “record” are key to understanding the Act.

In the RTKL, “Commonwealth agency” applies to any Pennsylvania state agency, including municipalities. For purposes of Act 77, a Commonwealth agency is limited to an “agency or commission of the executive branch under the policy, direction, or supervision of the Governor.” A “disaster declaration” is a declaration of disaster emergency made by the Governor pursuant to the Emergency Management Services Code, particularly 35 Pa. CS. § 7301(c).

Finally, “record” is defined a bit differently than in the RKTL.

The RTKL defines “record” as “information, regardless of physical form or characteristics, that that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.”

In Act 77, this language is retained, but is specifically limited to a “transaction or activity of a Commonwealth agency” as defined under the Act.

Section 302 prohibits the Governor, or Commonwealth agencies, from ignoring RTKL requests for records during a disaster emergency, or from suspending the way a Commonwealth agency normally responds to RTKL requests.

Section 303 of the Act requires each Commonwealth agency to publish guidelines for how it will respond to requests made during a disaster declaration within 5 days of the effective date of the Act, and Section 304 authorizes requester to file a petition with Commonwealth Court to compel a request for records in accordance with RTKL. Such a request may be denied only for reasons authorized by the RTKL.

Section 305 of Act 77 provides three categories of records are considered “public records” for purposes of Act 77, to the extent they are not exempt by Section 708 of the RTKL:

“(1) Data used by a Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.

(2) The process by which a Commonwealth agency determines how the Commonwealth agency will collect the data used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.

(3) Any quantitative or predictive models based on the data collected by a Commonwealth agency which are then used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.”

71 P.S. § 720.305 (emphasis supplied).

This language is clearly designed to permit requester to obtain information from Commonwealth agencies to enable requester to ascertain, and potentially challenge, the manner in which the disaster declaration was enacted and the manner in which the disaster is handled. Such requests had commonly been denied with regard to the COVID-19 pandemic before the passage of Act 77 because what they asked for included “reports of disease” and thus fell within the purview of the DPCL. Unfortunately, it is difficult to assess the effectiveness of a Commonwealth agencies handling of a pandemic without “reports of disease.”

Finally, Section 306 provides that Act 77 applies for the duration of the disaster declaration, as renewed, until the declaration “expires or is terminated by executive order, proclamation, or operation of law.” It also contains a provision that, with regard to the March 6, 2020 declaration regarding the COVID-19 pandemic, requests for records by Commonwealth agencies as defined by Act 77 “shall be treated as if the request for the record had been received by the agency on the effective date [July 27, 2020] of this section.” This language appears to have been intended to start the clock running again for requests pending as of July 27, 2020.

Bottom Line: Act 77 is clearly intended to facilitate requests for information relevant to the Governor’s and DOH’s handling of the COVID-19 pandemic by redefining certain categories of “reports of disease” as producible under RTKL. Whether Act 77 is achieving its purpose will become apparent as appeals from COVID-19 related requests move through the system.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On January 11, 2021, the OOR entered a Final Determination holding that a Request seeking data relating to protected COVID-19 records that had previously been made public by the Pennsylvania Department of Health (“DOH”) is not protected by the Disease Prevention and Control Law of 1955 (“DPCL”) and must be produced under the DPCL. Schorr v. Pennsylvania Dep’t of Health, OOR Dkt. No. AP 2020-1837 (Jan. 11, 2021). (The Final Determination is dated January 11, 2020, but the facts stated therein and the date on which the Determination was actually issued by OOR indicate that this date is a typographical error by the OOR.)

This determination is important because it attempts to enunciate a role for Act 77 with regard to requests for COVID-19 information from DOH.

Background and Facts:

On August 6, 2020, Requester Justin Schorr submitted a Request to the DOH for the following information “in its most complete form from March 2020 to present.” Listed below are the portions of this Request that were not subsequently withdrawn by the Requester:

1. Granular (day by day or, where available, hour by hour) counts of the following:

a. Total Covid-19 patients hospitalized (Statewide and, MOST IMPORTANTLY COUNTY BY COUNTY)
b. Total ventilators in use (COUNTY BY COUNTY, DAY BY DAY)
* * * *
d. The percentage of hospital patients who are transfers from LTCF [Long Term Care Facilities].

2. Clarification with regard to the following:

a. Provide a listing of all facilities which are included in the LTCF data
presented on the DOH website
(https://www.health.pa.gov/topics/disease/coronavirus/Pages/LTCF-Data.aspx)
b. Provide an explanation of the manner in which the excel files also
provided on that same webpage are related to the chart which is displayed.

* * * *
On September 14, 2020, after a thirty-day extension, DOH granted the portions of the Request that sought information publicly available on the DOH’s public website, and denied the rest of the Request based upon several exemptions in RTKL Section 708, and the DPCL. The Requester appealed this decision on September 15, 2020.

On appeal, the Requester argued that he merely sought aggregations of data DOH had already made public, so the DPCL could not apply. The Requester also argued that the data released by DOH did not accord with the numbers reported on DOH’s website, so all responsive records cannot have been made available. DOH took the position that the format in which it chose to make certain records public was part of its decision to release data under the DPCL, and that “the data used in the chart on the Department’s website for reporting facility cases and the data disclosed on their Open Data platform have different sources, and therefore are not identical.” Slip op. at 3.

OOR decided this appeal on the written submissions alone, as permitted under RTKL Section 1102.

Analysis and Holding:

OOR found that information published on the Open Data website responded to Item 1(a) and part of 1(b), and found that the appeal was moot as to that information.

Because Item 2(b) only seeks ” ‘an explanation’ of a disparity that the Requester perceives between data posted by the Department” and not a record, OOR held that Item 2(b) was not a proper RTKL request. OOR also held that information on the Open Data platform concerning COVID-19 counts and ventilator usage statistics since June 2020 was responsive to Items 1(a) and 1(b), mooting those portions of the request. But OOR drew interesting distinctions with regard to Items 1(d), 2(a). and 1(b).

The information in Items 1(d) and 2(a) has not been publicly released by DOH. Item 1(d) has not been made public in any format. With regard to Item 2(a), DOH’s Open Data website contains a listing of all LTCF with COVID-19 infections, but it does not list facilities associated with its online table, which draws from different sources and is thus a separate record for RTKL purposes.

OOR interpreted Item 2(a) as “the list of facilities from the Department’s dashboard,” not the list of facilities from the the DOH’s official dataset, which had been released on the Open Data platform. Because dataset information was not used by DOH or any Commonwealth agency for “any rules, policies or actions” or as part of a “quantitative or predictive model”, it was not covered by Act 77 and thus is still protected by DPCL. However, Item 1(d), which requests “the percentage of hospital patients who are transfers from an LTCF” daily between March 2020 and August 2020, is being used by DOH for purposes “of policies intended to address the COVID-19 pandemic emergency,” and thus was required to be produced under Act 77 and RTKL.

OOR drew a different distinction with regard to the portion of Item 1(b) requesting ventilator statistics between March 2020 and June 2020. Some of the information in Item 1(b) had been produced through day-to-day publication on the DOH’s website, though that information is not currently available, at least not in the form the Requester seeks.

RTKL Section 705 specifically states that an agency is not required to create a record that does not currently exist or format an existing record in a manner that the agency does not currently use. However, OOR found that providing information that exists in an agency database, such as the Open Data information, does not constitute creation of a record, so its production is not precluded from production by RTKL Section 705. Slip op. at 13 (citing and quoting Commonwealth v. Cole, 52 A.3d 541, 549 (Pa. Commw 2012). Because DOH’s evidence did not show any other reason why it could not provide that information, the ventilator statistics requested by Item 1(b) were ordered to be produced.

Bottom Line:

Although OOR typically does not treat information in and of itself as a “record” that must be produced, OOR explicitly recognized in Schorr that Act 77 classifies “data used by a Commonwealth agency for any rules, policies or actions taking by the Commonwealth agency in relation to a disaster declaration” as a public record producible under RTKL, independently of the record or records from which that data was derived.

It behooves anyone seeking information about the sources of the Commonwealth’s COVID-19 policies to frame RTKL requests about those policies with that distinction in mind.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

The Pennsylvania Supreme Court held in Uniontown Newspapers, Inc. v. Pa. Dep’t of Corrections2020 Pa. LEXIS 6488 (Dec. 22, 2020), that a requester of documents was entitled to attorneys’ fees under 65 P.S. §67.1304 (“Section 1304”) because delegation of the search for relevant documents by the agency’s open records officer (“ORO”) to a subordinate constituted bad faith conduct.

Although six of the seven Justices agreed that the ORO’s conduct constituted bad faith under Section 1304, they did not agree why that should be so. Thus, the chronology of events that led to the decision is critical to understanding the decision and applying it correctly to future cases.

Background and Facts:   It is significant that OOR was not reversed in the course of these proceedings; instead, this litigation proceeded to the Supreme Court through an original action in Commonwealth Court, brought by requester Christine Haines and the newspaper that employed her (collectively “Appellees”).

In September 2014, the Abolitionist Law Center published a report called “No Escape: Exposure to Toxic Coal Dust,” which alleged that there were increases in disease among staff and inmates at the Fayette correctional facility because of the facility’s proximity to a fly ash dump site. The Pennsylvania Department of Corrections (“DOC”), in conjunction with the Pennsylvania Department of Health (“DOH”) began an investigation of these allegations, consulting a number of sources including mortality lists of inmate deaths (“Mortality Lists”), a database that tracked inmates treated for cancer (“Oncology Database”), reports of inmate medications prepared by DOC’s pharmacy contractor (“Pharmacy Contractor Reports”), and records showing inmates who were enrolled in Chronic Care Clinics.

On September 25, 2014, Appellees submitted a request to DOC for:

“…documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates and staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would also be helpful.”

DOC’s ORO, Andrew Filkosky, denied the request in its entirety. Appellees appealed to OOR, which ordered DOC to disclose “all responsive records” within 30 days. DOC did not seek review of this order.

On December 31, 2014, DOC’s in-house counsel disclosed 15 pages of responsive records to Appellees. Two weeks later, Appellees asked DOC to verify that the December 31 disclosure was a complete response to their request. DOC made an additional review, and subsequently disclosed cancer patient records from November 2014 and January 2015. After that, the director of DOC’s Bureau of Health Care Services (“HCS”) verified that DOC had no other records “of SCI-Fayette inmate illnesses by type and quantity… and comparison of illness rates at other [SCIs].”

In February 2015, Appellees filed a petition in Commonwealth Court to enforce OOR’s production order. The petition also sought sanctions and attorney fees under the RTKL on the ground that DOC’s response to the Request demonstrated bad faith. On December 19, 2016, Commonwealth Court ordered DOC to produce the Chronic Care database, Mortality Lists, Oncology Database of inmate cancer cases, and Pharmacy Contractor Reports, but not individual inmate health records. With regard to the attorney fees issue, the panel was unable to reach a decision on the issue of DOC’s noncompliance; it consequently ordered the parties to enter a stipulation with regard to the disclosure status of these classes of records.

In March 2017, DOC produced Mortality List and Oncology Database information. Afterword, it filed a stipulation saying that the “Pharmacy Contractor Reports and Chronic Care Clinic records remained outstanding.” Slip op. at 5. On March 23, 2018, in a single-judge opinion, Commonwealth Court found that DOC had acted in bad faith by construing the Request too narrowly, failing to search records, and failing to comply with OOR’s disclosure order.   The court directed Appellees to advise the court in writing whether they intended to pursue their claim for attorneys’ fees, together with supporting documentation. Appellees advised that they were pursuing their claim, and after a hearing, Commonwealth Court entered judgment in their favor for $118,458.37.

DOC petitioned for allowance of appeal, which was granted on the following issues:

“1.  Where RTKL Sections 65 P.S. §67.1304 and §67.1305 premise the award of sanctions and attorney fees on a finding of bad faith and willful and wanton behavior, can a court impose those penalties based on a finding that the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, when any duty to independently and personally assess is not clearly delineated in either the statute or the case law?

2.  Did the Commonwealth Court properly construe the statutory language in 65 P.S. §67.1304 as authorizing an award of attorney fees when a court reverses a final determination of an agency rather than when a court reverses the final determination of  the appeals officer?”

Majority Analysis and Holding: Justice Mundy wrote the majority opinion, which was joined by Chief Justice Saylor and Justices Baer and Donohue. The opinion noted that all that ORO Filkosky did was to forward the RTKL request to Cathy Montag, an employee of HCS, who told him that all of the records requested related to the DOC/DOH investigation at Fayette. However, the ORO did not review any records when he denied the request, nor did he direct that potentially responsive records be retained pending resolution of the request, as DOC’s own procedures required. He did not even question Ms. Montag to confirm his impression that, other than the investigation documents, there were no responsive documents other than the inmates’ medical files.

Justice Mundy emphasized that “bad faith,” in the RTKL, does not require proof of fraud or corruption; abnegation of an agency’s mandatory duties prior to denial is sufficient to establish bad faith. RTKL Section 901 requires an agency to make a good faith effort to determine whether any records in an agency’s control are potentially responsive to a request and are “public records” within RTKL that are not subject to an exemption….” Slip op. at 10 (citing RTKL Section 903). Because the ORO did not do these things with regard to Appellees’ request, his conduct constituted bad faith.

Next, the opinion addressed RTKL Section 1304 and the propriety of the attorney fees award. Commonwealth Court had noted that Section 1304 refers to two different “final determinations”; the “final determination of the appeals officer” in the body of subsection (1) and “the agency in its final determination” in subsection (a)(2). For that reason, Commonwealth Court found Section 1304 to be ambiguous. It concluded that a literal reading of the statute would permit an attorney fees award only if the appeals officer’s final determination was reversed, allowing an agency to avoid attorney fees liability for wrongful conduct by refraining from appealing OOR’s final determination.

The majority agreed with Commonwealth Court that a construction of Section 1304 that permits an award of attorney fees only if an OOR determination has been reversed would lead to an absurd result.   See 1 Pa. C.S. §1922 (1) (presumption against statutory interpretation that causes an absurd result). Here, Appellees could not appeal OOR’s determination, because it was in their favor. DOC, in contrast, chose not to appeal, though it could have done so. That refusal to appeal forced Appellees to spend additional money in litigation in order to enforce OOR’s Final Determination and obtain all of the documents they had requested.

The Supreme Court reasoned that: “The practical effect of DOC’s position is to limit a requester to “a civil penalty of not more than $1,500 of an agency denied access to a public record in bad faith.” Slip op. at 25 (quoting 65 P.S. § 67.1305). Thus, the majority held that Section 1304(a)(1) “permit[s] recovery of attorney fees when the receiving agency determination is reversed, and [the agency’s determination] deprived a requester of access to records in bad faith.”

Other Opinions: Justice Dougherty dissented because he did not agree with the other justices that the facts of record were sufficient to prove bad faith on the part of DOC, even for purposes of the RTKL.

Justice Wecht wrote a concurring and dissenting opinion, joined by Justice Todd. His opinion agreed with the majority that DOC’s response, particularly its failure to provide an affidavit attesting to the search performed and the grounds on which the request was denied, constituted bad faith. “An agency should not be able to escape liability by claiming that the ORO was just following the advice of others. Otherwise, the statutory duty of good faith would be rendered nugatory.” Slip op. at 3.

Justice Wecht dissented on the attorney fees issue. He concluded that no attorney fees should have been awarded, based upon his view that the “unambiguous” language of RTKL Section 1304 required that result. He reasoned that the attorney fee provision in the old Right to Know Act (“RTKA”) permitted the requester to be awarded attorney fees if the agency’s “final determination” to deny production was reversed and the agency deprived “willfully or with wanton disregard” of access to documents subject to access under RKTA, or asserted defenses to access that were “not based on a reasonable interpretation of law.”

RTKL changed this provision by creating a separate “quasi-judicial administrative appeal mechanism,” under which an “appeals officer” of OOR would make the initial determination of the propriety of a denial. However, the language of RTKL Section 1304 clearly requires a court to reverse “the final determination of the appeals officer or grant[] access to a record after a request for access was deemed denied…” Because OOR reversed DOC’s denial, “neither of those conditions were satisfied” and attorney fees should not have been awarded. Wecht, J., slip op. at 6 (quoting RTKL Section 1304 (a)). Although Justice Wecht acknowledged that the relevant language of Section 1304 (a) was a “patent mistake,” he maintained that only the General Assembly could “correct its own oversight” and change the language of RKTL Section 1304 to conform to the result reached by the majority. See id.

Bottom Line:

Six of the seven Pennsylvania Supreme Court justices agreed that DOC acted in bad faith with regard to Appellees’ request. Thus, the real issue here is whether RTKL Section 1304 authorizes Commonwealth Court to award attorney fees to a requester where an OOR Final Determination directing production is not reversed, but the agency continues to improperly withhold responsive documents.

Justice Wecht acknowledged in his opinion that the actual text of RTKL Section 1304 is a “patent” mistake, and that “[a]n agency should not be able to escape liability by claiming that the ORO was just following the advice of others…” In light of this acknowledgment, it is difficult to understand his conclusion that RTKL Section 1304 is unambiguous as written. However, it seems unlikely that the General Assembly will accept Justice Wecht’s invitation to amend Section 1304, because the majority opinion has already provided a reading that is in accord with the objectives of the RTKL.