Francis J. Catania is a partner in the Media, PA, law firm of Catania & Parker, LLP, and has been practicing law for over 30 years.   He represents Pennsylvania municipalities, municipal authorities and schools in responding to Right to Know Law requests and assists private clients who use the Right to Know Law to request documents from state and local government agencies.  His practice includes representing clients about Right to Know Law matters before the Pennsylvania Office of Open Records, Common Pleas Courts and Commonwealth Court.   He has served as Delaware County Solicitor and Solicitor to Delaware County boroughs, townships, school districts and municipal authorities.

While an AORO’s Attestation Affidavit can be sufficient proof of a thorough search and a complete response, Affidavits that contain “a generic determination or conclusory statements are not sufficient to justify the exemption of public records.” Jeffrey Krug v. Bloomsburg University of Pennsylvania, Final Determination No. AP 2018-1599, Pa. O.O.R.D. November 21, 2018.  In Krug, the University AORO’s Affidavit was deemed insufficient by the OOR because it failed to provide sufficient factual basis to evidence a good faith search. The OOR found that a “conclusory affidavit” stating that all records have been provided without providing non-conclusive explanations of the specifics of the manner of the search and the completeness of the response was insufficient to meet an agency’s burden under the RTKL.

Exhibit 18 of the OOR’s Agency Open Records Officer Guidebook (PDF pages 73 -75) provides specific guidance on the acceptable content of an AORO Attestation Affidavit.  Attestation’s evidencing a good faith search need to include specific details of what types of records were searched, the location of the records “i.e. individual email accounts, agency servers, deleted email servers, service providers, etc.”, details regarding third party inquiries and responses, and what records if any were produced. In Krug the OOR ruled that because the University AORO’s Attestation Affidavit did not contain these specific averments, the Affidavit was insufficient to meet the University’s burden of proving a thorough search and a complete response.  Consequently, the OOR ordered the University to conduct a good faith search and provide all responsive records.

 

 

 

The Pennsylvania Office of Open Records has posted Cambria County Judge Krumenacker’s Opinions and Orders in the matters listed below.  Click here for access:

  2017-0050

  2017-0534

  2017-0399

2017-0050 06/29/2017 DeBartola v. Cambria County District Attorney’s Office Request sought various records relating to drug expenditures and employee information.
2017-0534 06/22/2017 DeBartola v. Cambria County Request sought DUI account information and audit reports
2017-0399 04/25/2017 DeBartola v. Cambria County District Attorney’s Office Request sought various records related to asset forfeiture accounts.

“Four rulings spread across more than 100 total pages” were recently issued by Cambria County President Judge Norman A. Krumenacker III concerning RTKL requests made by Johnstown resident John DeBartola, according to a November 20, 2018 edition article in The Daily American/OurTown Johnstown.  An Office of Open Records Final Determinations database search shows 24 matters involving DeBartola in 2016 and 2017, and three listed as pending in Common Pleas Court as shown in this chart;

2017-0050 06/29/2017 DeBartola v. Cambria County District Attorney’s Office Request sought various records relating to drug expenditures and employee information.
2017-0534 06/22/2017 DeBartola v. Cambria County Request sought DUI account information and audit reports
2017-0399 04/25/2017 DeBartola v. Cambria County District Attorney’s Office Request sought various records related to asset forfeiture accounts.

The story by OUR TOWN reporter Bruce Siwy suggests that, “In several instances throughout the rulings, Krumenacker appeared to be at odds with the district attorney’s position” and Siwy quotes  requester DeBartola as characterizing the requested records as being about “secret slush funds” after DeBartola alleged that “some of the money has been spent on country club dinners and pricey laptop cases”.  With the opinions covering “more than 100 total pages”, it appears that Judge Krumenacker’s opinions contain a thorough discussion of the applicability of the RTK law to the variety of the District Attorneys and County’s records dealing with the District Attorney’s asset forfeiture records.  However, as of the date of this post, the Office of Open Records has not yet posted Judge Krumenacker’s opinions nor were the opinions available on Lexis.

A leading appellate case on these types of requests made of Pennsylvania District Attorneys offices is Stacy Parks Miller, District Atty. v. County of Centre, et al., 98 MAP 2016, November 22, 2017, with a Concurring Opinion by Justice Donahue.

 

 

In August 2018, Berks County Common Pleas Judge James M. Lillis ordered the City of Reading to pay $12,071.75 in legal fees to a requester and in October 2018, Commonwealth Court Judge Simpson ordered Pennsylvania Department of Corrections to pay $118,458.37 in legal fees to a  requester.  On November 26, 2018, the Pennsylvania Office of Open Records issued one of its periodic email topic alerts reporting on and linking to these two Court decisions.  The alert entitled “Agencies Ordered to Pay Legal Fees” can be found here

The Office of Open Records hosts a webpage where it has collected Court decisions on Enforcing a Final Determinations