This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnote

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

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

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

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

Background and Facts:

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

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

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

2. Clarification with regard to the following:

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

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

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

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

Analysis and Holding:

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

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

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

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

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

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

Bottom Line:

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

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

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bottom Line:

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

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

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.