The Pennsylvania Commonwealth Court recently reversed an OOR decision based on a finding that the statutory exception under RTKL Section 708(b)(17)(i) applies to exempt from disclosure a non-criminal investigation, including the complaint submitted to the agency. In Pennsylvania Liquor Control Board v. Perretta, 2019 WL 6114465 (Pa. Cmwlth Ct., Nov. 18, 2019), the court, in an opinion by Judge Fizzano Cannon, held that an employee of the Pennsylvania Control Board (PLCB) was not entitled to a copy of the complaint allegedly filed by a particular individual, whom the Requester identified by name.

Issues Addressed:

On appeal, in which review is de novo, with a plenary scope of review, the court was called upon to determine whether the non-criminal investigation exemption applied.

OOR Ruling Reversed:

The OOR issued a final determination granting the Requester’s appeal from the denial of the PLCB to provide a copy of the complaint sought by the Requester. The position of the PLCB was that complaints submitted to an agency are exempt from access pursuant to the non-criminal investigation exemption in the RTKL.  The OOR relied on two court decisions that were distinguished in the opinion.

Important RTKL Principles Articulated by the Court:

Although not new, this decision provides an important overview of the RTKL and a reminder that the objective of the RTKL is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” Id. at *4.

This opinion also provides a refresher on basic RTKL principles such as:

(1)       A record in the possession of a Commonwealth Agency shall be presumed to be a public record under RTKL Section 305(a).

(2)       The presumption shall not apply if the requested record is exempt under the RTKL, is exempt from disclosure under any other federal or state law, or is protected by a privilege.

(3)       The agency bears the burden of proving, by a preponderance of the evidence, that the record is exempt from disclosure under an enumerated exemption.

(4)       RTKL Section 708(b)(17)(i) exempts from disclosure records of an agency relating to a non-criminal investigation, including complaints.  This exemption is designed to encourage cooperation with investigations by persons who are requested to provide information.

Court’s Reasoning:

The court relied on affidavits provided by the PLCB that any complaints made to the agency are investigated. Based on those affidavits, the court explained that the requested records fall squarely within the exemption described in RTKL Section 708(b)(17)(i).

The court also explained that the burden of proof was satisfied by the submission of affidavits by the agency, because they established that it was “more likely than not” that a non-criminal investigation was conducted.

The United States Supreme Court, in McBurney v. Young, ruled that there is no federal constitutional right to public records, and the states have the discretion to limit access to public records to their own citizens.  This decision and its impact on the right to obtain public records was explored in a recent article:  Chad G. Marzen, “A constitutional right to public information,” available at https://ssrn.com/abstact=3472464

The article also reviews a handful of states that have a state constitutional provision providing a right to access public records, and discusses related issues.

There are some states, such as Delaware, that limit–by statute–access to public records to citizens of that state. The article suggests that greater transparency for governments would be promoted if there was a push for amendments to both the federal and state constitutions that enshrined a right to access public records.

A recent decision of the Office of Open Records (OOR) is noteworthy for the extensive analysis supporting its conclusion that the Pennsylvania Public Utility Commission (PUC) must produce a substantial number of the records requested regarding submissions to the PUC in connection with a pipeline. In Friedman v. Pennsylvania Public Utility Commission, OOR Dkt. No.: AP 2019-1324 (Oct. 10, 2019), the OOR rejected multiple arguments asserting that all of the information requested was within various exemptions under the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq.  This Final Determination is also notable for its grant of a request to participate by a party with a direct interest in the subject of the appeal.

Takeaways:

The most efficient way to highlight this 31-page decision of the OOR is to note the multiple arguments that were rejected in terms of exemptions that were claimed but were denied. This decision should be read by anyone seeking information under the RTKL from the PUC (which is subject to the jurisdiction of the OOR).

Among the exemptions that the PUC claimed were a basis to prohibit disclosure–but which in most instances were determined not to allow the PUC to withhold documents, include the following:

  • Section 708(b)(2) regarding disclosure that would threaten public safety.
  • Section 708(b)(3) relating to exemptions for disclosure that would endanger the safety of a building, public utility, infrastructure or information storage system.
  • Section 708(b)(3)(ii) refers to infrastructure and resources defined by the federal government in the National Infrastructure Protections Act.
  • Section 708(b)(3)(iii) allows exemptions that would expose infrastructure to vulnerability due to disclosure, including public utility systems, communications systems, water, sewage and gas systems.
  • Section 708(b)(11) exempts certain trade secrets or other confidential proprietary information.
  • Section 708(b)(17) exempts non-criminal investigative records.
  • Section 708(b)(17)(vi) provides an exemption for records that, if disclosed, would: (A) reveal the progress of an agency investigation; (B) deprive a person of the right to an impartial adjudication; (C) constitute an unwarranted invasion of privacy; (D) hinder the ability of an agency to secure an administrative sanction; and (E) endanger the life or physical safety of an individual

A recent decision from the Office of Open Records relied on the right to privacy in the Pennsylvania Constitution, as opposed to an exemption in the RTKL, as a basis to prevent the disclosure of certain personal information. In Petusky v. Girardville Area Municipal Authority, OOR Docket No. AP 2019-0931 (Aug. 26, 2019), the OOR relied not on an exemption in the RTKL, but on the right to privacy in the Pennsylvania Constitution as a basis to prevent the disclosure of the home address and related personal information of a board member of the municipal authority involved.

Brief Overview of Case:

The requester in this case made a request pursuant to the RTKL for records regarding sewer inspections. Although the Authority granted the request, it redacted certain personal information about a board member.  This appeal followed and the OOR granted in part and denied in part the appeal.

The challenged redactions involved the home address and other personal identification information related to the payments for sewer inspections that were performed by a member of the Authority’s board.

Important Legal Principles Recited:

This OOR decision recited several basic principles of the RTKL, such as the presumption that records in the possession of a local agency are presumed public unless specifically exempt by the RTKL, or other law, or protected by a privilege, judicial order or a decree. See 65 P.S. § 67.305.

Section 708 of the RTKL places the burden of proof on the public body to demonstrate a record is exempt.

Section 708(b)(6) of the RTKL exempts from disclosure certain “personal identification information” which includes all or part of a social security number, driver’s license number, personal financial information, home, cell or personal telephone numbers, personal email addresses, employee number or other confidential personal identification. See 65 P.S. § 67.708(b)(6)(i)(A).

Importantly, home addresses are not specifically exempt pursuant to Section 708(b)(6), but the OOR found in this ruling that home addresses are protected by the Pennsylvania Constitution’s right to privacy.

Right to Privacy:

The Pennsylvania Supreme Court held that an individual possesses a constitutional right to privacy in certain types of personal information. See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

When a request for records implicates personal information not expressly exempt from disclosure under the RTKL, the OOR must “balance the individual’s interest in informational privacy with the public’s interest in disclosure and may release the personal information only when the public benefit outweighs the privacy interest.” Id.

The Pennsylvania Supreme Court recognized that “certain types of information, including home addresses, by their very nature, implicate privacy concerns and require balancing. Id. at 156-157.

Conversely, however, that there is no right to privacy regarding addresses of businesses or commercial entities. See Butler v. Pennsylvanian for Union Reform, 172 A.3d 1173, 1184-85 (Pa. Commw. Ct. 2017) (“The constitutional right to informational privacy only inures to individuals”).

The Commonwealth Court recently decided an issue of first impression and ruled that the term “individual” in Section 708(b)(13) of the RTKL does not include “corporations.” In the case styled, California University of Pennsylvania v. Bradshaw, 210 A.3d 1134 (Pa. Cmwlth. May 31, 2019), the court upheld a final determination by the Office of Open Records (OOR) which required the public university involved to produce records regarding donations to a private foundation that raised funds and managed donations for the public university.

Brief Overview:

This matter involved a request for records related to donations from Manheim Corporation to the Foundation for California University of Pennsylvania regarding donations from Manheim to the Foundation for a certain period of time, and the records identifying the use of those funds. The OOR concluded that the requested donation records were not exempt, and therefore granted the request for the records.  The University appealed.

Issues Presented:

On appeal, the court addressed whether the requested records were exempt from access under Section 708(b)(13) of the RTKL. The University unsuccessfully argued that the word “individual” should be construed under the RTKL to include “corporations” as well as natural persons. The distinction in this case is determinative, because in some instances the records of individual donors are exempted from mandatory disclsoure, as are such things as individual medical records and the like.

The University also unsuccessfully argued that the OOR erred in determining that the University must disclose donation records of the Foundation.

Highlights of Court’s Analysis:

The court reiterated the presumption that all public records are accessible under the RTKL unless the agency proves by a preponderance of the evidence that the record is exempt from disclosure. The court explained that because of this presumption of accessibility and the underlying purposes of the RTKL, exceptions to access are to be narrowly construed.

The court reviewed the statutory definitions of both the words “individual” and “person” under Section 1991 of the Statutory Construction Act.

The court observed that the RTKL does not explicitly define either term, although the Statutory Construction Act defines both. Section 1991 of the Act defines a corporation as a “person” but not as an “individual.”  The court reasoned that the use by the General Assembly of those two terms in Section 708 of the RTKL was deliberate, and instances of the term “individual” in that section “obviously apply to natural persons only.” The court provided several examples in the statute of how the word “individual” is defined in different contexts.

Thus, the court held that under Section 708(b)(13) of the RTKL, the records requested are not exempt because Manheim Corporation is not an individual for purposes of that section.

In addition, the court noted that there was a Memorandum of Understanding between the Foundation and the University to perform fundraising functions on behalf of the University. In this context, that activity was a governmental function for the public university.

Section 506(d)(1) of the RTKL provides that records of a private entity, engaged by the public agency, directly related to governmental functions–are public records of the agency and accessible through the RTKL.

The court also instructed that the Foundation was engaged in performing a governmental function to the extent that it fundraises and manages donations on behalf of the University, thereby making records directly related to those activities public records of the University. Therefore, the University must disclose them pursuant to Section 506(d) of the RTKL as it would any responsive records in its own actual possession. See footnote 11 which rejects arguments by the University that the records were not in its possession, because the RTKL exposes to public access those records that a contractor of the public agency maintains that relate to the governmental function.

For readers interested in learning more about the nuances and substantive aspects of the PA Right-To-Know-Law (RTKL), the Office of Open Records (OOR) is hosting a seminar featuring several luminaries in the world of the PA RTKL. Details are below.

Among the titans in this field who will be presenting at this event, are Terry Mutchler, the founding Executive Director of the OOR; and The Honorable Dominic F. Pileggi, whom the OOR seminar materials below describe as the author of the RTKL (when he was the Majority Leader of the PA Senate). His Honor is now a state court judge (and still the brother of one of the co-editors of this blog.)

RTKL Roundtable – Sept. 5

The OOR is hosting the Right-to-Know Law Roundtable, a half-day of speakers and panels, on Thursday, Sept. 5, in Harrisburg.

The Roundtable, designed especially for requesters, will take place from 1:00 p.m. to 4:30 p.m. and will be held at the office of the Pennsylvania NewsMedia Association, 3899 N. Front St., Harrisburg.

We’ve put together a tremendous array of speakers, moderators and panelists, including Judge Dominic F. Pileggi, who authored the RTKL, along with attorneys who regularly work with the Right-to-Know Law, journalists, college professors, and more.

Check out the entire lineup here and then register to join us!

The RTKL Roundtable has been approved for 3 substantive CLE credits.

Description

The Right-to-Know Law Roundtable is the first event of its kind, a half-day session of panels and speakers filled with topics of interest to people who use the RTKL as requesters. The schedule includes:

Opening Speaker: The Honorable Dominic F. Pileggi

Author of the Right-to-Know Law

Discussion: Practical Tips for Writing an Effective RTKL Request

Moderated by Angela Couloumbis (Philadelphia Inquirer) with panelists Melissa Melewsky, Esq. (Pennsylvania NewsMedia Association), Jan Murphy (Pennlive), and Megan Shannon (Offit Kurman)

Writing a request under the RTKL can be more art than science. This discussion will help requesters avoid pitfalls and make their requests as effective and efficient as possible with examples from case law and real-world experience.

Discussion: Enforcing OOR Final Determinations

Moderated by Cate Barron (Pennlive) with panelists Adrienne Langer, Esq. (Cusick, DeCaro & Langer), Terry Mutchler, Esq. (Mutchler Lyons), and Thea Paolini, Esq., MBA (Nauman, Smith, Shissler & Hall)

Agencies don’t get to choose whether or not to comply with a final determination issued by the OOR. Sometimes, however, agencies don’t comply. Does a requester have to go to court to enforce the OOR’s determination? What consequences could the agency face?

Discussion: Law Enforcement Records and the RTKL

Moderated by Cindy Simmons (Pennsylvania State University), with panelists Paula Knudsen, Esq. (The Caucus), William Rozier (Pennsylvania State Police), and Liz Evans Scolforo (York Dispatch)

The RTKL doesn’t apply to police recordings like bodycams and dashcams, but it does apply to many records held by law enforcement agencies. What records are – and are not – available to requesters? This discussion will cover the State Police, local police departments, and more.

Speed Round: Presentations by State and Local Agencies.

Moderated by Jaime Fettrow-Alderfer (Lebanon Valley College)

Presenters will highlight how they’re using technology to make records more available and to reduce the impact of RTKL requests on their agencies.

The RTKL Roundtable is free and open to everyone. Although seating is necessarily limited, we plan to record the event and make it available online at a future date.

A recent decision by the Office of Open Records is notable for requiring disclosure of text messages among school board members sent during a school board meeting. In Hassler v. Tulpehocken Area School District, OOR Dkt. No. AP 2019-0455 (July 18, 2019), the Appeals Officer explained that whether the text exchange related to an agenda item at the meeting was not the determining factor in deciding whether the text messages needed to be disclosed.

Procedural History

The school board denied the request under the RTKL for text messages and emails sent among board members during a board meeting. Aspects of the appeal included extensions of time and supplemental submissions. As part of the appeal process, the Appeals Officer conducted an in camera review of the disputed documents, and explained the reasons why some communications needed to be produced and why some were covered by exceptions to the disclosure requirements of the RTKL.

Key Points in Decision’s Legal Analysis

  • After reciting the doctrinal underpinning of the RTKL and its objective, the decision recited the statutory basis for the presumption that the District’s public records are subject to public access, unless specified exemptions apply. Op. at 2-3.
  • Section 708(a) places the burden of proof on the public body to establish that a particular exemption applies.
  • In response to the District’s position that the documents requested were not “public records”, the Appeals Officer described the two-part test used to determine if a document or other material is a public record:

(i) does the material evidence a “transaction, or activity of an agency”? and if so,

(ii) was it “created, received or retained…in connection with a “transaction, business or activity of an agency?” Allegheny County v. A Second Chance, Inc.,  13 A.3d 1025, 1035-35 (Pa. Commw. Ct. 2011). The definition of “record” is liberally construed. Id.

  • The key exchange of texts required to be produced was between an District administrator and a Superintendent, and related to whether someone was recording the board meeting. The OOR explained that it was not necessary for the communication to be an “agenda item” in order for the RTKL to require production as a public record. Op. at 5.
  • The District’s arguments that those “non-agenda” communications were exempt under Section 708(b)(12) was rejected. That exemption would apply to documents that “have no official purpose”–but the District did not provide sufficient evidence to support this argument.
  • Identifying each document reviewed in camera by Bates Number affixed to each document, the Appeals Officers reasoned that some texts and emails in dispute discussed food and personal photos as well as other communications that did not relate to District business.
  • The District wrongly argued that some communications were exempt information under Section 708(1)(ii) and (b)(2) because they allegedly involved a safety incident with a student and “would be reasonably likely to result in demonstrable risk of physical harm to the personal security of an individual” or would be reasonably likely to jeopardize public safety. Op. at 6. The Appeals Officers reasoned that the District offered mere conjecture without support for their position on this point.
  • Computer passwords and login information are exempt under Section 708(b)(4).  See Op. at 7.

The Commonwealth Court recently instructed that all evidence supporting one’s RTKL arguments must be presented to the Office of Open Records, and appellants cannot supplement the record with additional evidence on appeal. In Mission Pennsylvania, LLC v. McKelvey, et al., (Cmwlth. Ct. June 4, 2019), the court addressed requests for copies of applications submitted to the Department of Health under PA’s medical marijuana law.

Key Takeaways

  • All evidence and arguments regarding the disputed RTKL issues must be presented to the OOR and will not be permitted to be supplemented for the first time on appeal
  • To allow additional evidence for the first time on appeal would encourage dilatory tactics and subverts the goal of the RTKL to provide expedient access to public records.
  • The court also explained the 6 factors considered to determine whether data deserves “trade secret status” protection pursuant to the RTKL.
  • The type of confidential and privileged commercial or financial information that may be an exception under the RTKL was also analyzed by the court.
  • On an issue somewhat unique to the PA medical marijuana law, the court explained the details about the physical security systems of a building that may be exempted under the RTKL

A recent decision by the PA Office of Open Records (OOR) is noteworthy for its explanation of the good faith duty of agencies to search for responsive records. The case of Brady v. Borough of Wernersville, OOR, Docket No.: AP 2019-0453 (May 22, 2019), granted an appeal from the denial of requested documents by the Borough, in which the Borough asserted, by affidavit, that no additional responsive records existed.

Brief Background:

This matter involved a request to the Borough seeking 12 categories of public records regarding specific road work. Although the Borough partially denied the request, they provided some records, but also argued that no additional records existed within its possession, custody or control.

On appeal, the Borough submitted an affidavit asserting that no additional responsive records existed. The Requester submitted a statement asserting that the Borough had not explained the basis for its denial, and also explained that the records produced were incomplete.  The Requester provided reasons why the requested records should exist.

Legal Analysis:

The Final Determination on appeal by the OOR explained the public policy rationale underpinning the Right to Know Law, including that one of its purposes is to scrutinize the actions of public officials and make public officials accountable for their actions.

Moreover, the decision instructed that records in the possession of a local agency are presumed public unless they are exempt under the RTKL or other law, or protected by a privilege, judicial order or decree. See 65 P.S. § 67.305.  An agency must assess whether a requested record is within its possession, custody or control, and must respond within five business days.  65 P.S. § 67.901.  In addition, the state agency bears the burden of proving the applicability of any cited exemptions relied on to exclude production. See 65 P.S. § 67.708(b).

Burden of Proof:

The decision also recited the truism that: “The burden of proving a record does not exist . . . is placed on the agency responding to the Right-To-Know request.” (citing Hodges v. PA. Dep’t of Health, 29 A.3d 1190, 1192 (Pa. Commw. Ct. 2011)).

Duty to Conduct Good Faith Search:

The decision emphasized the obligation of an agency to “make a good faith effort to determine if . . .the agency has possession, custody or control of the record.” See 65 P.S. § 67.901.  Although the RTKL does not define the term “good faith effort,” the Commonwealth Court has explained that the duty of an Open Records Officer to conduct a good faith search, includes the duty:

“to advise all custodians of potentially responsive records about the request, and to obtain all potentially responsive records from those in possession . . .. When records are not in an agency’s physical possession, an Open Records Officer has a duty to contact the agencies within its control, including third-party contractors . . ..  After obtaining potentially responsive records, an agency has the duty to review the records and assess their public nature under . . . the RTKL.”

Uniontown Newspapers, Inc. v. PA Dep’t of Corr., 185 A.3d 1161, 1171-72 (Pa. Commw. Ct. 2018).

Moreover, in connection with what constitutes a:

“good faith effort, another Commonwealth Court decision explained the ‘duty to inquire of agency personnel as to whether he or she was in the possession, custody, or control of any of the . . . requested emails that could be deemed public and, if so, whether the emails were, in fact, public and subject to disclosure or exemption from access by Requester.’”

Mollick v. Twp. of Worcester, 32 A.3d 859, 875, (Pa. Commw. Ct. 2011) (citations omitted).

The OOR noted that conclusory affidavits, standing alone, will not satisfy the burden of proof an agency must sustain to show that a Requester may be denied access to records under the RTKL. See Slip op. at n.2.

Rationale of the Decision:

The decision reasoned that the Borough: “has not presented competent evidence detailing the steps of the search, the types of records searched and what Borough offices, Borough personnel or relevant third-party contractors were contacted to determine the existence of responsive records.” Id. at 6.

The court added that the affidavit by the Borough did not indicate whether a search of the requested records was conducted, and therefore, the OOR concluded that the Borough cannot be said to have conducted a good faith search reasonably calculated to identify the requested records. (citations omitted.)

Conclusion:

In sum, the appeal was granted, and the Borough was required to conduct a good faith search and provide all responsive records within 30 days. It was also clarified that within 30 days of the mailing date of the Final Determination, any party may appeal to the Berks County Court of Common Pleas. See 65 P.S. § 67.1302(a).

Pennsylvania’s Commonwealth Court recently addressed an issue of first impression regarding the exception under the RTKL for information shared between an agency and an entity with whom the agency contracts that is “internal to the agency” for purposes of qualifying for the “internal, predecisional deliberations” exception of a state agency, pursuant to Section 708(b)(10)(i) of the RTKL.  In Finnerty v. Pennsylvania Department of Community and Economic Development, 2019 WL 1797668 (Pa Cmwlth. April 25, 2019), one of Pennsylvania’s two intermediate appellate courts upheld a decision by the OOR which recognized as qualifying for the internal, predecisional deliberations exception, communications between the state agency and subcontractors with whom the agency had a contractual relationship.

Brief Background:

This matter originated with a request for records exchanged among the Pennsylvania Department of Community and Economic Development and a consultant with whom it contracted for purposes of assisting with the recovery plan for the City of Chester.  That consulting firm, EConsult also subcontracted with a law firm and a financial advisory firm.  The requester sought records related to the work that EConsult was doing in connection with its efforts to help the City of Chester try to sell the Chester Water Authority (CWA) to a third-party in order to assist with the financial problems of the City.

CWA was not aware of the full-extent of these plans by others to try to sell it.  (There were many issues about whether the City had the right to sell CWA.)

Highlights of Court’s Reasoning:

The court acknowledged that this was an issue of first impression, and began its analysis by quoting the statutory provisions that exempt from disclosure internal, predecisional deliberations of an agency, its members, employees or officials, including those relating to budget recommendations, proposed policy or course of action or any research used in the predecisional deliberations.  See 65 P.S. § 67.708(b)(10)(i).

The court explained that the agency bears the burden of proof by a preponderance of the evidence and must show: “(1) the information is internal to the agency; (2) the information is deliberative in character; and (3) the information is prior to a related decision, and thus predecisional.”  (citing McGowan v. Pennsylvania Department of Environmental Protection, 103 A.3d 374, 381 (Pa. Cmwlth. 2014)).

The court recognized that there was no prior case law on this issue, and it focused on the intent of the RTKL, which is designed to promote access to official government information and to allow for scrutiny of the actions of public officials.  The court held that it benefits the public to allow government agencies to engage in the candid exchange of ideas.

Key Findings:

The court found that a contractual relationship existed among the department and its consultant, as well as the subcontractors to the consultant whose documents were sought.

The court explained its finding that the contractual relationship among the parties made their records internal to the agency, including the predecisional, deliberative information that was exchanged between the department and its consultant and subcontractors.  The court explained its view that its conclusion supported the ability of agencies to hire outside experts to address problems beyond the expertise of the agency, and that administrative decision making is facilitated when agency officials and expert outside contractors can have a frank exchange of ideas and opinions

The court also relied for its findings on a decision from the United States Court of Appeals for the District of Columbia regarding its interpretation of a Freedom of Information Act request, based on the theory that case law interpreting FOIA is helpful as the federal counterpart to the RTKL.  See National Institute of Military Justice v. U.S. Department of Justice, 512 F.3d 677, 678-79 (D.C. Cir. 2008).

Conclusion The court upheld the OOR’s Final Determination, concluding that the Department properly invoked the internal, predecisional deliberation exception, to withhold certain of the requested records.