A recent decision is noteworthy for clarifying why the affidavit of a RTK Officer was not sufficient to carry the burden of the township to demonstrate an exemption based on a non-criminal investigation. In Middletown Township v. Cortes and Energy Transfer, 109 Del. Co. Rep. 1 (2021), which was published in the February 18, 2022 issue of the Delaware County Legal Journal, the Delaware County Court of Common Pleas affirmed in part a decision of the Office of Open Records that required the township to produce records of communications with a pipeline company and their lawyers. No assertion of attorney/client privilege was made.
- The court’s decision began with the basic principle undergirding the Right to Know Law that it is premised on the presumption that public records must be accessible for inspection and copying by anyone requesting them unless the records fall within specifically enumerated exceptions or are privileged–and the government agency has the burden to establish an exemption.
- One of the key issues in this case was whether the “non-criminal investigation” exception applied to the request for records. The township based its argument for this exemption on an affidavit from the township’s RTK Officer. But the court held that the affidavit did not suffice to carry the township’s burden to establish an exemption because it was conclusory and not adequately detailed. For example, it failed to relate the records in the exemption log to any non-criminal investigation. The affidavit merely tracked the language of the statute without explaining why the records at issue were exempt from disclosure.
- The court also rejected the argument that it did not balance the impact of releasing the records with the right of access to that information.