This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On August 14, 2020, the OOR entered a Final Determination holding that some categories of information relating to personnel hired to work with infection prevention and control at a nursing home (“preventionists”) are producible under the RTKL, but that reports made by the preventionists to the home’s quality assessment and assurance (“QAA”) committee are exempt from production. Nicole Brambila and Public Source v. Bucks County, Dkt. No. AP 2020- (Aug. 14, 2020).

Background and Facts:

Nicole Brambila and Public Source (“Requester”) requested the following material from Neshaminy Manor, a Bucks County nursing home under the RTKL:

  • Names of “preventionists,” their hire date and salary, who were employed to work with infection prevention and control program staff at Neshaminy Manor. (“Item 1”).
  • The written standards, policies and procedures for the home’s infection control program. (“Item 2”).
  • The member names on each facility’s quality assessment and assurance committee, their expertise, and the meeting dates for the committee in 2019 and to date in 2020. (“Item 3”).
  • A copy of the last three reports by the preventionists to the QAA committee. (“Item 4”).
  • A copy of each facility’s most recent annual review of the infection control program (Item 5″).

Bucks County (“County”) denied the Request, on the grounds that the requested records are confidential under federal and state law, specifically 42 CFR § 483.75(h) and the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1301.311 (h). The County’s supporting affidavit, but not its response to the Request or its position statement on appeal, also attested that the records are confidential under the Disease Prevention and Control Law (“DPCL”)k 35 P.S. § 521,15.

Analysis and Holding:

The OOR quickly disposed of the County’s argument that the MCARE Act protects the requested material from production. The relevant section of the MCARE Act, 40 P.S. § 1301.311 (a), only applies to documents “which arise out of matters reviewed by the patient safety committee [of a medical facility]….” Slip op. at 4. However, “medical facility” is defined in the MCARE Act as an “ambulatory surgical facility, birth center, hospital or abortion facility.” A nursing home such as Neshaminy Manor, does not fall within this definition, and the County, which has the burden of proving that the records requested are confidential, did not explain how the MCARE Act’s protections applied.

The County fared better with regard to its argument that the records are protected from disclosure by 42 CFR § 483.75(h). (“Section 483.75(h)”) Section 483.75(h) states that a state may not require disclosure of a QAA committee’s records “except in so far as such disclosure is related to the compliance of such committee with the requirements of this section.” Slip op. at 5.

Brambila construed this provision to mean that a record that exists independently of the QAA committee and its purpose are not exempted from disclosure under Section 483.75(h). Thus, for example, Item 1, information about preventionists and their salaries, is not exempt from production under the RTKL because it serves other purposes than those of the QAA committee. Items 2, 3 and 5 were similarly held not to be protected, and OOR ordered their production as well. But Item 4, reports made by the preventionists to the QAA committee, were created expressly for that committee so it could perform its work. Accordingly, these reports were held to be protected under Section 483.75(h), and thus not producible under the RTKL.

The Final Determination quoted language from the Disease Prevention and Control Law (“DPCL”), 35 P.S. § 521.15, stating that “reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations” were protected and could not be produced to anyone other than the Pennsylvania Department of Health or a local department of health, “except where necessary to carry out the purposes of this act.” Slip op. at 5. OOR did not find this argument persuasive, because the requested records in this case did not consist of “reports of diseases” or actions taken as a result of such reports.

Bottom Line:

Brambila reminds us that the OOR must and will refuse to order production of records otherwise eligible for production under the RTKL that are made confidential and protected from disclosure under a different statute or regulation.

Although the DPCL was rejected as a justification for protecting the documents requested in Brambila, there have been other recent Final Determinations concluding that the DCPL protected information about COVID infections and related information, However, precedent based on these determinations likely has been made obsolete by 2019 Pa. House Bill 2463, which added a new article to the Administrative Code. Under the new article, information used “for any rules, policies or actions taken by the Commonwealth in relation to a disaster declaration” is a public record under the RKTL. Moreover, the new article resets the clock for record requests made since March 6, 2020 by deeming those requests as being made on July 27, 2020, the effective date of the new article. Appeals construing the new statute with regard to requests for information related to COVID-19 and Governor Wolf’s disaster declaration likely will begin to appear in the near future.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On June 9, 2020, the Commonwealth Court handed down a decision in Pennsylvania Dep’t of Labor and Industry v. Chester Darlington, No. 1583 C.D. 2019 (Pa. Commw.).  The decision upheld the OOR’s Final Determination that documents relating to periodic, routine, and regular boiler inspections conducted pursuant to the Boiler and Unfired Pressure Vessel Law (“Boiler Law”) are not exempt from disclosure under Section 708 (b)(17) of the RTKL.

Background and Facts: 

On August 28, 2019, requester Chester Darlington submitted a RTKL request to the Pennsylvania Department of Labor and Industry (“DLI”) for any and all records, including investigation reports, pertaining to a June 15, 2016 incident that took place at the Veolia Energy Plant in Philadelphia.  DLI denied the request based on RTKL’s noncriminal investigation exemption.  During the Requester’s OOR appeal, DLI produced additional documents indicating that some of the boiler inspections at Veolia were regular boiler field inspections while others were “the direct result of a boiler and/or other regulated pressure vessel incident or a complaint” and that some of the boiler inspection records dated back to 1991.

OOR granted the Requester’s request in part.  It held that the Requester was entitled to records relating to the regular annual boiler inspections at Veolia, but not to the records relating to the 2016 incident, as records relating to that incident were a “noncriminal investigation” within the meaning of the RTKL.  Requester did not appeal from the determination relating to the 2016 incident, but DLI appealed from the portion of OOR’s Final Determination that ordered production of reports of regular boiler inspections.

Requester’s position on appeal was that OOR’s Final Determination was correct, because the Boiler Law, under which the regular boiler inspections were performed, distinguishes between “inspection” and “investigation” activities, which are treated differently under the RTKL.  DLI responded that both types of activities warrant protection to help ensure that they result in truthful answers, which might not be the case if information about them was publicly available.

Analysis and Holding:

The Darlington Court began its analysis by observing that an agency’s records are presumed to be public unless they fall within an exemption under the RTKL, and the agency has the burden of proving that an exemption applies.  The exemption at issue here was the “noncriminal investigation” exemption.

OOR determined that the routine boiler inspections were not “noncriminal investigations” for four reasons:  1)  the Boiler Law itself differentiates between “inspections” and “investigations”; 2) routine boiler inspections can be performed by non-Department personnel while investigations cannot be; 3) DLI’s affidavits do not provide sufficient details to justify treating the boiler inspections as “noncriminal investigations” under existing case law; and 4) the disclosure here does not raise the same public policy concerns present in Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Commw. 2010), which it treated as controlling authority.

The Darlington Court began its review of OOR’s Final Determination with the term “noncriminal investigation.” Although the RTKL does not define the words “noncriminal” or “investigation,”  common usage defines “noncriminal” as “investigations other than those criminal in nature,” and Commonwealth Court precedent defines “investigation” as “a systematic or searching inquiry, a detailed examination, or an official probe.”  Department of Health v. Office of Open Records, 4 A.3d at 811.

In light of these definitions, the Darlington Court turned to the Boiler Law, which clearly distinguishes between an “inspection” and an “investigation.” In particular, the Boiler Law distinguishes between a routine field inspection and an investigation of a particular boiler-related incident, and provides that an investigation must be conducted by DLI while an inspection may be performed by non-DLI personnel. These distinctions indicate that it is inappropriate to equate routine “inspections” with “investigations,” and the conclusory statements in DLI’s attestations failed to provide the Court with any reason to conclude otherwise.

Finally, the requested disclosures relating to regular boiler inspections in this case do not “raise the same concerns about witness confidentiality or harm to reputation” as did the request for nursing home documents that was at issue in the Department of Health case.  In particular, the nursing home documents raise patient privacy concerns which documents about routine boiler inspections do not.  Slip op. at 20.  OOR’s Final Determination was consequently affirmed.

Bottom Line: 

Darlington reminds us that it takes a statutory definition to equate such facially different terms as “inspection” and “investigation.”  OOR correctly determined that the Boiler Law, which defines DLI’s authority and obligations, shows that “inspections” and “investigations” are different things, and a conclusory attestation by an agency official does not change that.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On July 28, 2020, the OOR entered a Final Determination holding that a Request defined solely by a collection of broad keywords and a specific time frame is sufficiently specific under the RTKL to be granted.  Dennis Roddy v. Pennsylvania Office of the Governor, OOR Dkt. No. AP 2020-0915 (July 28, 2020).

Background and Facts: 

Requester Dennis Roddy submitted a Request to the Pennsylvania Office of the Governor (“POG”) for copies of all e-mails sent by Julie Slomski between March 1, 2015 and December 31, 2019, containing the following 14 terms:  Logistics Plus, Berlin, Laughlin, Badhams, Erie Public Schools, Erie Schools, Fabrizi, Fabrizio, Aleksandrowicz, Casillo, Petrungar, John Hawkins, $14 million.  POG denied the Request on the ground that it was insufficiently specific, citing 65 P.S. § 67.703 (“Section 703”). Section 703 requires a request to “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested… .”  On appeal, the Requester took the position that his Request was sufficiently specific.

Analysis and Holding:

In determining whether a particular request is sufficiently specific, OOR applied the three-part test set forth by Commonwealth Court in Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A. 3d 1121 (Pa. Commw. 2015).  First, “[t]he subject matter of the request must identify the ‘transaction or activity’ of the agency for which the record is sought.” Second, the scope of the request must identify a discrete group of documents (e.g., type or recipient). Third, “[t]he timeframe of the request should identify a finite period of time for which the records are sought.” Pennsylvania Dep’t of Education, 119 A. 3d at 1125-26.

Commonwealth Court has emphasized that its three-part test needs to be applied on a flexible, case-by-case basis.  In Roddy, the question was whether the keywords offered were sufficiently specific and whether the timeframe of the request was too long.  OOR concluded that the Request was proper for several reasons.  Though the Request included broad keywords and sought e-mails sent over a 4 1/2 year period, it only asked for document from one person’s e-mail account.  In addition, only 14 keywords appear in the Request, and the time frame element of the Pennsylvania Dep’t of Education analysis is the “most fluid” of the factors considered to determine whether a Request is sufficiently specific.

Bottom Line: 

It is critical to note, in applying the Pennsylvania Dep’t of Education test, that the real objective is to determine whether the information provided in a request, taken as a whole, is sufficient to enable the agency to identify the desired records.  Here, the use of broad keywords and the somewhat lengthy time period did not preclude production under Section 703 because the volume of records sought was limited to a single e-mail account, enabling responsive records to be appropriately targeted.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

 On September 14, 2020, the Honorable William S. Stickman, IV of the Western District of Pennsylvania entered judgment that Governor Wolf’s “stay at home” order and the order closing “non-life-sustaining” businesses for months (“business shutdown”) are unconstitutional in County of Butler, et al. v. Thomas W. Wolf, et al., Civil Action No. 2:20-cv-677, 2020 U.S. Dist. LEXIS 167544 (W.D. Pa. Sept. 14, 2020).

Governor Wolf promptly moved for a stay of the order.  That motion was denied by Judge Stickman on September 22, 2020.  The Wolf administration plans to appeal from the order.  On October 1, 2020, the Third Circuit granted a stay pending appeal.

Although the opinion and order in the County of Butler do not directly implicate the Right to Know Law, it is relevant to persons challenging RTKL denials or delays based upon the stay-at-home and business shutdown orders.  For that reason, we summarize County of Butler here.

Background:   The Plaintiffs are Butler County, Pennsylvania, three other counties in Western Pennsylvania, four individuals campaigning for political offices in Pennsylvania, and two hair salons and two drive-in movie theater businesses as well as their owners.  Plaintiffs filed a complaint on May 7, 2020, seeking a declaratory judgment that Governor Wolf’s “stay-at-home” and “business shutdown” orders violated their constitutional rights, and on May 20, 2020 moved for speedy hearing of the action pursuant to Fed. R. Civ. P. 57.

Analysis:  The Court began by dismissing the claims asserted by the county Plaintiffs, on the ground that the counties are political subdivisions created by the Commonwealth and, as such, cannot sue for violations of Constitutional rights. However, the individual political candidates, and the businesses and their proprietors, on the other hand (“private Plaintiffs”), may do so.

The claims by the private Plaintiffs fall into three categories:  1) violations of the First Amendment arising from the limitations on gatherings; 2) Fourteenth Amendment substantive due process violations arising from the both the stay-at-home order and the business shutdown order, and; 3) violations of the Equal Protection Clause of the Fourteenth Amendment arising from the business shutdown order.

The opinion notes that the Pennsylvania Supreme Court found the business shutdown order to be constitutional under the Pennsylvania and federal constitutions in Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020), cert. filed, (Apr. 27, 2020), stay denied, 206 L. Ed. 2d 930 (U.S., May 6, 2020), but a federal court is not bound by state court precedent on federal questions, including federal constitutional questions.  Accordingly, the Court addressed the constitutional issues on the merits.

  • Standard of Review.  The right to peacefully assemble and the right of free speech have long been treated the same by the federal courts; both have been analyzed using the intermediate scrutiny standard.  Thus, intermediate scrutiny was applied to the stay-at-home order.  With regard to the business shutdown order, the Court observed that strict scrutiny could have been applied, because the order prohibited interstate travel, which is “of the very essence of a scheme of ordered liberty….”  Slip op. at 46.

However, the Court found the business shutdown order to be unconstitutional, even under intermediate scrutiny.  Intermediate scrutiny, which is typically applied to First Amendment free speech cases, look to determine whether the restraint at issue is 1) content-neutral; 2) necessary to serve a compelling state interest, and; 3) narrowly tailored to meet that compelling state interest.

  • Mootness.  Defendants’ argument that this matter is moot because the state is now in the “green” phase and the stay-at-home and business shutdown orders are no longer in effect was firmly rejected by the Court.  Plaintiffs’ position is that the orders have not been lifted or terminated pursuant to their terms, but have merely been suspended, and testimony from Defendants clearly indicates the Wolf administration’s intent to reinstate them at any time they deem necessary.  As has been held in other cases, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000)).
  • The Stay-at-Home order.  The Court concluded that the stay-at-home order is content-neutral, because the plain language of the order does not make a distinction between gatherings  based upon the type or types of communication they are intended to enable.  Moreover, no one denies that attempting to control the spread of COVID-19 is a compelling state interest.  But the order fails constitutional scrutiny because it is not narrowly tailored to achieve its purpose, namely, “flattening the curve”.  For example, the stay-at-home order applied to all Pennsylvanians, whether exposed to COVID-19 or not, and thus was not a “quarantine” as that term is used. The Court contrasted this situation with quarantines imposed during other epidemics, including the 1918 influenza epidemic, which were limited both in scope and duration, and noted that the stay-at-home lockdown order and others like it in other states “are unprecedented in the history of our Commonwealth and our Country.”  Slip op. at 4.
  • Substantive Due Process.  The Court traced the history of the Fourteenth Amendment, and showed that the ability to earn a living free of governmental interference is the core of the protection provide by that Amendment.  Under both orders, the ability to earn a living is severely impacted by the restrictions on travel and on which businesses may continue to operate at all.  Those restrictions would have violated liberty interests even if they were temporary, and had already permanently ended; as noted previously, those restrictions can still be reinstituted at any time.

In addition, the distinction between “life-sustaining/non-life-sustaining” businesses that is the core of the business shutdown order violates the Equal Protection Cause of the Constitution because it is arbitrary.  The Governor’s policy team never had a specific definition or criteria to distinguish “life-sustaining” from “non-life-sustaining” businesses, and the list of “life-sustaining” businesses continued to fluctuate while the system was in place.  Worse still, after the waiver process closed on April 3, 2020, a business that was wrongly classified as “non-life-sustaining” under some version of the list no longer had any means to seek a change in its status that would permit it to reopen.

Defendants claimed that they used the North American Industry Classification System (“NAICS”) manual to develop their classification, but the purpose of NAICS is simply to permit federal agencies to classify businesses “for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy.”  NAICS does not make any distinction between “life-sustaining” and “non-life-sustaining” businesses, and does not even contain those terms in its manual.  Slip op. at 56.

The arbitrariness of the “life-sustaining” versus “non-life-sustaining” classification is further shown by its effects.  For example, evidence presented in this case shows that many “non-life-sustaining” businesses, such as R.W. McDonald & Sons, a small appliance and furniture store, were forced to close, while larger businesses carrying the same products, such as Lowes, Home Depot, and Walmart, were deemed “life-sustaining” and were permitted to continue to operate.  Slip. op as 60.

Bottom Line:  The stay-at-home order is unconstitutional because it burdens the rights of large numbers of people statewide and may be reinstituted pursuant to its terms at any time, without limitation.  The business shutdown order also may be reinstituted, and in addition randomly terminates the right of certain persons to pursue their chosen means of earning a living on the basis of an arbitrarily created and undefined distinction between “life-sustaining/non-life-sustaining” businesses.    It is already clear that this case will be appealed to the Third Circuit and, because the stakes are high for the parties concerned, the U.S. Supreme Court may well be asked to rule on these constitutional issues.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

Within six weeks of the Pennsylvania Supreme Court’s decision in Easton Area School District v. Miller, 13 MAP 2019, 2020 Pa. LEXIS 3378 (“Easton”), the OOR was required to apply the Easton holding to a school bus video request.  That holding is the OOR’s Final Determination in Tricia Mezzacappa v. Colonial Intermediate Unit 20, Docket No. AP 2019-1922 (July 31, 2020).

Background and Facts:

On September 4, 2019, the Requester filed a RTKL Request directed to the Colonial Intermediate Unit 20 (“Unit”) for “bus video AM route only for the first day of school 2019-2020.”  The Unit denied the Request, contending that the video was exempt under the Family Education Rights and Privacy Act (“FERPA”).

The Requester appealed to OOR, which invited the parties to supplement the record. The Unit’s position statement included verified attestations by the Unit’s Open Records Officer, its Executive Director, and its Director of Technology that:  1) the requested videos contained personal details of minor students; 2) the Unit lacks the technology to redact the videos, and; 3) after performing a balancing test, the Unit determined that the requested record could not be released. With the agreement of all parties, OOR stayed the matter pending the Easton decision.

After Easton was handed down, OOR reopened the record to permit the parties to address the effect of that decision on the appeal.   The Unit submitted supplemental attestations by its Open Records and Director of Technology in support of the positions it had taken before the Easton decision.  The Requester submitted a statement saying that the Unit failed to demonstrate any expectation of privacy in the locations where a bus stops on public roads, and that redaction of the faces of students would be acceptable.

OOR Analysis and Holding:

The Unit advised OOR that it had conducted the necessary balancing test and determined that the public interest in disclosure far outweighed the privacy rights of the students and their families.  It argued that redaction was impossible, both because it lacked the capability to perform such redactions, and because it would have to redact, not only student information, but street signs, addresses, and any information that would show the actual route taken by the bus.

As per Easton, OOR rejected the argument that redaction of information that would show the bus route was necessary, because there is no expectation of privacy in any information that would reveal public information such as school bus routes.

OOR accepted the Unit’s attestation that it lacked the capability to redact the video itself.  It then looked to Section 1307(g) of the RTKL to resolve the redaction issue.  Section 1307(g) provides that “miscellaneous costs an agency necessarily incurs for complying with a request may be imposed upon the Requester so long as the costs are reasonable.  Slip op. at 11.  Accordingly, the Unit was required  to provide the Requester with an estimate of reasonable costs necessary to have the video redacted with thirty (30) days of OOR’s Final Determination.  Upon payment of those costs, the Unit would be required to provide the redacted video. 

Bottom Line: 

An agency must provide an estimate of redaction costs to the Requester when video redaction is necessary under Easton and the agency lacks the ability to perform the necessary redactions.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond

On June 18, 2020, a divided Pennsylvania Supreme Court held that a school bus surveillance video was  not exempt from disclosure under the RTKL in Easton Area School District v. Rudy Miller and The Express Times, Docket No. 13 MAP 2019.  Although the Supreme Court majority agreed with Commonwealth Court that the video must be disclosed, it held that constitutional privacy concerns require application of a balancing test and redaction of recognizable images of students before disclosure. (For additional research on this topic, consider an OOR decision highlighted on these pages in a different case that also addressed issues that arise in connection with the RTKL when a bus video is requested.)

Original Issue: 

Did Commonwealth Court err as a matter of law in concluding that a school bus surveillance video was not exempt from disclosure under RTKL solely because it is an “education record” for purposes of Section 1232g of the federal Family Educational Rights and Privacy Act (“FERPA”)?  The Supreme Court answered this question in the negative.

Background:

A reporter for The Express Times requested a copy of a school bus security camera video from Easton Area School District (“Easton”) under the RKTL.  The video showed an elementary school teacher “roughly physically disciplin[ing] a child.” Slip op. at 2.  Easton denied the request pursuant to RTKL Subsection 708 (b)(1)(i), which exempts from disclosure public records that, if produced, would result in a loss of federal or state funds by an agency, a result dictated by FERPA’s protection from disclosure of a student’s “education record” without parental consent.

OOR found that the video was not an “education record” as defined by FERPA, and ordered its production.  Easton appealed to the Court of Common Pleas, which agreed with OOR and affirmed.

A unanimous Commonwealth Court panel affirmed the Court of Common Pleas, noting that a record does not need to relate solely to academic performance to be an “education record” under FERPA.  However, Commonwealth Court held that the record needed to be “directly related to a student” to be an “educational record,” and the video was only “tangentially related” to the students depicted.  This “directly related” determination is content-specific and must be made on a case-by-case basis.  Slip op. at 6.

The Majority Ruling: 

Before the Supreme Court, Easton argued that the video is an “education record” under FERPA because it contains “personally identifiable information,” about a student.  “Personally identifiable information” is defined as “information … that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”  Slip op. at 6.  Since, under FERPA, an education record may be disclosed only with parental consent, Easton maintained that the video is not a “public record” under the RTKL and is thus exempt from disclosure.

The Express Times argued that the video was a presumptively public record and that Easton failed to establish that the RTKL exempts the video from production.  It is the “policy or practice” of producing information such as that contained in the surveillance video that is proscribed by FERPA and would result in the loss of federal funding, and Easton never proved that it had such a practice or policy.

The majority agreed with Easton that the surveillance video is an “education record.” It also agreed with The Express Times that Easton had to prove, and failed to prove, that the RTKL’s exemption for records whose disclosure would cause it to lose federal funds applied.  But the majority was not satisfied with simply upholding Commonwealth Court, partly because it considered the video to contain “personally identifiable information” that directly relates to a student, not just to a teacher, and partly because it concluded that constitutional rights were implicated by the RKTL request at issue.

The majority observed that “personally identifiable information” is protected under the Pennsylvania Constitution, and may not be produced even if the record in which it appears is otherwise subject to production under the RKTL, Slip op. at 27 (citing Pennsylvania State Educational Ass’n v. Commonwealth, 637 Pa. 337, 148 A. 3d 142 (2016)).  Both FERPA and the RTKL provide that a record containing both disclosable information and protected information may be disclosed if the protected information is redacted before disclosure.

Thus, the majority held that an agency asked to disclose a public record under RTKL must first apply a constitutional balancing test “to determine whether the right of informational privacy outweighs the public’s interest in dissemination,” slip op. at 26-27.  Such considerations “may necessitate redaction of personal information not otherwise permissible under the RKTL.”  Slip op. at 27.   Consequently, Commonwealth Court was affirmed, with instructions orders to redact the students’ “personally identifiable information” before disclosure.

Concurring and Dissenting Opinions:

In an opinion which Justice Mundy joined, Chief Justice Saylor agreed that the video at issue is an “education record,” but otherwise disagreed with the majority’s ruling.  The majority’s rationale raises the possibility that every refusal to produce an “education record” would be sufficient to support an RTKL Subsection 708 (b)(1)(i) exemption because even a single refusal could be deemed sufficient to establish a “policy or practice” of refusal to produce, making the RTKL exclusionary language meaningless.  Thus, he would have reversed Commonwealth Court’s order.

In an opinion which Justice Wecht joined, Justice Baer agreed that Commonwealth Court should be affirmed, but concluded that the privacy issue was not before the Court.  He would not have required redaction or discussed any balancing test.

Bottom Line: 

The Supreme Court now requires agencies to apply a constitutional balancing test whenever a RTKL disclosure request directed to the agency implicates an individual’s privacy rights.  It remains to be seen whether the extra burden this ruling imposes on agencies will result in changes to the RTKL.

 

 

The following case synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

Recently, in ACLU of Pennsylvania v. Pennsylvania State Police, No. 66 MAP 2018 (Pa., June 16, 2020), the Pennsylvania Supreme Court clarified the proper scope of appellate review of OOR determinations by holding that Commonwealth Court should have reviewed the OOR’s determination under a broader factual record. The Supreme Court thus vacated Commonwealth Court’s order and required that Court on remand to conduct additional fact-finding to ascertain whether the affidavit submitted by the Pennsylvania State Police (“PSP”) to OOR was sufficient to establish the applicability of RTKL’s “public safety” exclusion to the requested document.

Issue Presented:

Did Commonwealth Court, as the reviewing court on appeal, have discretion to expand upon the record it received in furtherance of its function as the ultimate finder of fact?

The Supreme Court answered this question in the affirmative.

Factual and Procedural Background:

The ACLU of Pennsylvania (“ACLU”) submitted a Right to Know request to the PSP for a complete copy of a PSP regulation that “establishes policies and procedures for PSP personnel when using social media monitoring software.” Slip op. at 2. The PSP produced the nine-page document (“the Policy”) to the requester with redactions that obscured approximately 7 of its 9 pages. The PSP justified the redactions by invoking the RTKL’s public safety exception.

OOR Appeal:

In its appeal to the OOR, ACLU contended that the PSP had not provided a sufficient basis for invoking the public policy exception. PSP responded by submitting an affidavit by Major Douglas J. Burig, the Director of PSP’s Bureau of Criminal Investigation and a 22-year PSP veteran, which averred that disclosure of the Policy “would jeopardize PSP’s ability to conduct criminal investigations and other law enforcement activities it engages in to protect the public.” Slip op. at 5-6. OOR reviewed the unredacted text of the Policy in camera, compared it with the Burig affidavit, and concluded that “[t]he processes described throughout are strictly internal and administrative in nature, providing third parties with no opportunity to intercept or alter any Trooper’s request or clearance to conduct any investigation.” Slip op. at 7. OOR consequently found that the affidavit did not support application of RTKL’s public safety exception, and ordered the Policy to be produced in full.

Commonwealth Court Appeal:

Commonwealth Court reversed OOR’s determination without reviewing the unredacted text of the Policy. It reasoned that Major Burig’s affidavit was legally sufficient to carry PSP’s burden to establish that disclosure of the full Policy would threaten public safety, based upon the three-part test for such affidavits set forth in Carey v. Pennsylvania Dep’t of Corrs., 61 A. 3d 367 (Pa. Commw. 2013). Such an affidavit is sufficient under Carey if it “(1) includes detailed information describing the nature of the records sought; (2) connects the nature of the various records to the reasonable likelihood that disclosing them would threaten public safety in the manner described; such that (3) disclosure would impair the agency’s ability to perform its public safety functions in relation to what the agency claims to be the alleged threatening consequence.” Slip op. at 9. In effect, Commonwealth Court held that where the effect of a disclosure, and not its specific language, is at issue, an agency affidavit is sufficient if it complies facially with Carey and there is no indication of bad faith.

Reasoning of the Supreme Court Majority:

Justice Wecht, writing for the Court majority, began the analysis by observing that in Bowling v. Office of Open Records, 621 Pa. 133, 75 A.3d 453 (Pa. 2013), the Court held that the scope of appellate review of an RTKL determination is defined by what the appellate court is permitted to examine. According to Bowling, the reviewing court is “the ultimate finder of fact” and is not bound to accept OOR’s factual determinations. Slip op. at 12.

The majority held that by accepting Major Burig’s affidavit simply because it “ticks off Carey’s three boxes,” and refusing even to consider the unredacted text of the Policy, Commonwealth Court abused its discretion. Slip op. at 19-20; See also id. at 27. The Court vacated Commonwealth Court’s order and directed them on remand, at a minimum, to review the Burig affidavit in light of the unredacted language of the Policy.

Other Opinions:

In a concurring opinion which Justice Dougherty joined, Chief Justice Saylor joined the majority holdings that Commonwealth Court abused its discretion and failed to conduct a sufficient review of OOR’s determination. He disagreed with the majority’s suggestion that a reviewing court’s failure to consider “any given piece of evidence” considered by OOR is an error of law. Slip op. at 1-2.

Justice Mundy dissented, on the ground that it was clear from the Burig affidavit alone that the public safety exception applied, so there was no justification for “expanding the reviewing court’s scope of review.” Slip op. at 1; see also id. at 6.

Bottom Line:

Commonwealth Court abused its discretion by conducting a limited and unduly deferential factual review of OOR’s determination. The record for Commonwealth Court’s review should not have been limited to the documents specified in the RTKL as the appellate record, but should have permitted true fact finding as to the sufficiency of the agency affidavit proferred to support invocation of RTKL’s public safety exception.

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UPDATE: The esteemed Professor Bainbridge kindly linked to this post on his widely-read blog.

Email communications among Council Members and the Borough Manager of Lewistown were required to be produced, pursuant to a recent decision from the Office of Open Records in the matter styled Maguire v. Lewistown Borough, OOR Docket No. AP 2020-0260 (April 20, 2020).

Basic Facts

The Final Determination of the OOR in this matter followed an appeal from the denial of a request to the Borough for emails between and among the Borough Manager and two Council Members for a sixty-one day period of time. Also requested, but denied in this appeal, was a document regarding potential job eliminations.

Legal Ruling and Analysis

The decision begins with the public policy animating the Right to Know Law which includes empowering citizens to obtain access to official government information to promote transparency and to allow scrutiny of the actions of public officials. See Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75 A.3d 453 (Pa. 2013). RTKL Section 708(a)(1) places the burden of proof on the public body to prove that the requested government record is exempt from public access.

A key issue in this matter was whether the request for emails satisfied the “sufficiently specific” requirement in Section 703. The Courts have established a three-part balancing test to determine if this requirement is satisfied. See Pa. Dept. of Educ. v. Pittsburgh Post-Gazette, 119 A.3d 1121 (Pa. Commw. Ct. 2015). First, the “transaction or activity” must be identified. Second, the requested scope must identify a discrete group of documents (e.g., type or recipient). Third, the timeframe should identify a finite period of time for which the records are sought.

Applying those factors to the present facts, the OOR determined that the short timeframe in this matter “rescued” the lack of subject matter referenced in the request, similar to the facts in Easton Area Sch. Dist. v. Baxter,  35 A.3d 1259, 1265 (Pa.Commw. Ct. 2012).

A second part of the request was denied in this appellate decision because it requested documents relating to strategy or negotiations for labor relations or collective bargaining which are exempt under RTKL Section 708(b)(8)(i).

A footnote on the last page of the decision notes that the Pennsylvania Supreme Court has suspended through April 30 deadlines related to court cases or judicial business. The OOR has a link on its website with commentary on how the shutdown due to the coronavirus and the Governor’s declaration of an emergency impacts requests under the RTKL and the duties of government agencies during this unprecedented crisis.