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).