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.

 

A noteworthy recent decision involves a demand for records submitted to the Pennsylvania House of Representatives. That request was denied and the Requester appealed to the Office of Open Records (OOR).

The OOR in Monighan v. Pennsylvania House of Representatives, OOR, Docket No.:  AP 2019-0585 (April 18, 2019), explained that pursuant to the RTKL, legislative agencies such as the House of Representatives are not subject to the jurisdiction of the OOR. See 65 P.S. § 67.503(a).  Rather, appeals involving a legislative agency are heard by an appeals officer designated by the legislative agency.  Accordingly, the appeal in this matter was transferred to the Appeals Officer for the House of Representatives.

A recent decision by the PA Office of Open Records is notable because of its reliance on the right to privacy contained in the Pennsylvania Constitution to prevent the requesting party from obtaining records that might otherwise be obtainable based on the Right to Know Law.  See Feliciano v. Philadelphia District Attorney’s Office, PA OOR, Docket No. AP 2019-0275 (April 1, 2019).

Brief Background:

This Final Determination involved a request under the PA RTKL for information related to a former Assistant District Attorney in Philadelphia.  The D.A.’s office denied the request that sought personnel records.  Upon appeal, the Office of Open Records (OOR) granted the appeal in part and denied it in part.

Key Takeaways:

·     The most noteworthy part of this opinion is the recognition based on the Pennsylvania State Constitution that the right to privacy trumps the Pennsylvania Right to Know Law in certain instances.  Specifically, the Pennsylvania State Constitution, although it does not specifically use the word “privacy” in the section cited, has been interpreted by the Pennsylvania Supreme Court to protect a right to privacy for personal data and to prevent the production of what would otherwise be public records that would be produced under the Pennsylvania PA RTKL.  See Pa. Const. Art. I, § 1.

·     For example, the Pennsylvania Supreme Court has ruled that the constitutional right to privacy protects the disclosure of personal phone numbers and home addresses, as well as social security numbers of state employees.  Generally, the court requires a balancing test to balance the right to privacy for one’s personal information with the public interest in disclosure.  See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

·     The OOR also explained that the RTKL is not superseded by the Pennsylvania Inspection of Employment Records Law (“IERL”).  The IERL addresses the right of employees to certain information in their personnel file held by an employer.  That law does not bar disclosure under the RTKL.

·     Section 708(b)(7) of the RTKL does exempt from disclosure certain records regarding a state employee, such as performance ratings or reviews and written criticisms of an employee, as well as information relating to discharge–with the exception of the final action of an agency that results in demotion or discharge.  See 65 P.S. §§ 67. 708(b)(7) (vi) – (viii).

·     This final determination also recognizes that Section 708(b)(6) of the RTKL exempts personal information such as home phone numbers and personal email addresses and other confidential personal identification.  This statutory protection overlaps some of the constitutional privacy protections.

·     The Pennsylvania Supreme Court did not expressly define all of the potential types of “personal information” subject to the balancing test that protects certain types of information–but has recognized specific examples of personal data for which privacy concerns outweigh the public interest, such as the right not to disclose personal telephone numbers, social security numbers, and home addresses.

In County of Berks v. Pennsylvania Office of Open Records, 2019 WL 1076828 (Pa. Cmwlth. Ct. Jan. 3, 2019), the court explained that it is well established that OOR and its appeals officers have authority to order an in camera review of documents that have been withheld or redacted where, in the appeals’ officers’ judgment, in camera review is necessary to develop an adequate record to rule on an agency’s claim of privilege or exemption.

Moreover, the court explained that this statutory basis for in camera review by OOR does not intrude upon the Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law under Article V, Section 10(c) of the Pennsylvania Constitution.  Nor, the court explained, does the exclusive authority of the Supreme Court to regulate the practice of law deprive OOR of subject matter jurisdiction to make a ruling about whether a document submitted for in camera review is protected by the attorney/client privilege, attorney work product doctrine, or Rule of Professional Conduct 1.6(a), which prohibits a lawyer from disclosing confidential information regarding the representation of a client without the informed consent of the client. Id. at * 9.  There was no merit to the argument that OOR did not have the authority to review privileged data in camera.

The court also rejected the argument by the County of Berks that an appeal of a Final Determination by OOR should not be considered by the Court of Common Pleas, which would be the ordinary appeal process, and that the Commonwealth Court should assume original jurisdiction and bypass the traditional appeal process for an OOR determination. The Commonwealth Court rejected the county’s argument that the statutory remedy of an appeal of an OOR Final Determination would be inadequate because the requested declaratory relief, according to the county, would prevent duplicative litigation in which counties would raise the argument that they are exempted from the RTKL based on The County Code.

The court explained that during the pendency of the appeal, new legislation was passed to amend Section 406 of The County Code by creating a new section as follows:

“Except as otherwise provided by this Act, records of county offices shall be open for inspection subject to the rules and regulations provided in the Act of February 14, 2008 . . . known as the ‘Right-to-Know-Law.’”

That new legislation now makes it beyond dispute that the RTKL will apply to records’ requests to counties from December 23, 2018 onward.

Thus, because the County conceded that the RTKL applies to records’ requests to counties after the new legislation went into effect, and that declaratory relief that they sought was limited to requests prior to that new Act, the court explained that it was not necessary for it to exercise its original jurisdiction.

The Office of Open Records (“OOR”) recently issued a decision in which it denied a request for unredacted invoices of an attorney for a school district based on the attorney-client privilege. In the matter of Campbell v. Pennsbury School District, PA OOR, Docket No.: AP 2018-2171 (Feb. 14, 2019), the OOR upheld a decision of the school district to redact legal descriptions from invoices requested.

Important Legal Principles in this Decision:

Key takeaways in this decision that should have widespread application can most efficiently be highlighted through the use of the following bullet points.

  • The Pennsylvania Right to Know Law (RTKL) allows the use of the attorney-client privilege as a basis for state agencies to deny requests for records or to redact privileged information, even though the burden of proof that such privilege applies is on the party asserting the privilege. See RTKL Section 708 and Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011).
  • The RTKL defines privilege as “the attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth.” See 65 P.S. Section 67.102.
  • In order for the attorney-privilege to apply, an agency must demonstrate that: (1) The asserted holder of the privilege is or sought to become a client; and (2) The person to whom the communication was made is a member of the bar of a court, or a subordinate; and (3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, not for the purpose of committing a crime or tort; and (4) The privilege has been claimed and is not waived. Slip op. at 5.
  • After an agency establishes the privilege was properly invoked under the first three prongs, the party challenging invocation of the privilege must prove waiver under the fourth prong. Id. However, simply invoking the privilege does not excuse the agency from the burden it must meet to withhold records. Id.
  • The Pennsylvania Supreme Court has held that the attorney-client privilege in regard to descriptions of legal services contained within legal invoices does not turn on the category of a document such as whether it is an invoice or a fee agreement, but rather: “the relevant question is whether the content of the writing will result in disclosure of information otherwise protected by the attorney-client privilege. Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013). The Pennsylvania high court approved a “line by line analysis” for the review of an invoice to determine whether it contains privileged information. Id.