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.