Francis Pileggi is a partner in the firm of Eckert Seamans Cherin & Mellott, LLC, and practices primarily in the areas of corporate and commercial litigation. Visit Francis' biography page on his firm's website for more information.

A recent decision by the Pennsylvania Office of Open Records (OOR) clarified that a requester is not entitled to access to government computers in order to review data. Cap v. Lehigh and Northampton Transportation Authority, O.O.R. Docket No.:  AP 2018-2059 (Dec. 21, 2018). But a later decision involving the same requester did allow a modified request for more specific data. See Cap v. Lehigh and Northampton Transportation Authority, O.O.R. Docket No.: AP 2018-2062 (Dec. 26, 2018). N.B. The same requester and the same agency involved in the foregoing two decisions were the subject of seven (7) OOR Final Determinations between Dec. 20, 2018 and Dec. 26, 2018, as listed on the OOR website.

Why These Two Decisions Are Noteworthy: The first OOR Final Determination listed above clarifies that the RTK Law does not support a request for government data which is, in essence, a request to access government computers to review data on those computers in order to determine what data will be requested. The second decision listed above provides a roadmap of sorts for how to navigate around that limitation.

Brief Background: The first decision referenced above involves a request to a local transportation authority to “inspect and view” all video cameras stored in a closed circuit TV on a particular bus.  The request specified that after viewing of those videos, the requester would determine which specific parts of the video would be requested to be copied.  The authority denied the request and the requester appealed to the OOR. But the OOR granted a slightly revised request from the same person in a decision a few days later.

The agency explained that the process to access the video included the following: the on-board storage device on the bus must be connected to proprietary viewing software.  According to the agency involved, it is often challenging to locate a particular event on a particular bus at a particular time. However, the OOR explained the efforts the agency must demonstrate in order to fulfill their duty to exercise good faith to locate records that they or agents under their control may have.

Key Takeaways:

  • After reviewing the purpose of the RTK Law and the rationale for promoting access to government records and transparency, the decision also described the presumption that public records must be disclosed and that the government agency has the burden of proof to explain why a particular record is exempted or otherwise not available for production.
  • The decision refers to Section 708(a) as the statutory basis that requires the government agency to establish why a particular public record is exempt from production.

   Limitations of the RTK Law

  • Section 701(b) of the RTKL expressly states that: “Nothing in this act shall be considered to require access to any computer either of an agency or an individual employee of an agency.” 65 P.S. § 67.701(b).
  • Although records of an investigation may be subject to a separate exemption, that issue was not decided because of another basis for an exemption in this matter.
  • The decision referred to prior rulings which established that there is no right to access a computer to review data that reside in government computers or to have electronic access to the email accounts of government employees. See Donahue v. Luzerne County, OOR Dkt. AP 2013-1394, 2013 PA O.O.R.D. LEXIS 821.
  • The first listed decision of the OOR found that inspection of the requested video would require access to government computers utilizing proprietary software, and that while agency videos are records that are generally subject to access under the RTKL, the agency is not required to provide access to its computers to allow for the review and inspection on those computers of responsive records. Therefore the request was denied. See also Wachter v. City of Warren, OOR Dkt. AP 2015-2654, 2015 PA O.O.R.D. LEXIS 2191.

   Request Granted for Separate Description of Similar Data Sought by Same Requester

The second decision listed at the beginning of this post involved the same requester and the same agency, with a different result.

  • The issue of the agency’s compliance with its duty to make a good faith search to find the requested records was addressed by quotes from appellate court decisions explaining that obligation:

In response to a request for records, “an agency shall make a good faith effort to determine if … the agency has possession, custody or control of the record[.]” 65 P.S. § 67.901. While the RTKL does not define the term “good faith effort” as used in Section 901 of the RTKL, in Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., the Commonwealth Court recently stated:

As part of a good faith search, the open records officer has a 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 agents 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.

185 A.3d 1161, 1171-72 (Pa. Commw. Ct. 2018) (citations omitted); see also Rowles v. Rice Twp., OOR Dkt. AP 2014-0729, 2014 PA O.O.R.D. LEXIS 602 (citing Judicial Watch, Inc. v. United States Dep’t of Homeland Sec., 857 F. Supp. 2d 129, 138-139 (D.D.C. 2012)) (citations omitted). Additionally, the Commonwealth Court has held that an open records officer’s inquiry of agency members may constitute a “good faith effort” to locate records, stating that open-records officers have:

a 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 Requestor. 6

Mollick v. Twp. of Worcester, 32 A.3d 859, 875 (Pa. Commw. Ct. 2011); see In Re Silberstein, 11 A.3d 629, 634 (Pa. Commw. Ct. 2011) (holding that it is “the open-records officer’s duty and responsibility” to both send an inquiry of agency personnel concerning a request and to determine whether to deny access).

  • The OOR determined that the agency did not satisfy its good faith duty, and that mere inconvenience or the burdensome nature of the search was not a defense.
  • The agency’s defense under Section 705 was also rejected that finding the requested video segment would require it to “create a record that does not exist”.
  • A defense under Section 708(b)(17), that the record was an exempt non-criminal investigation was also rejected, as there was insufficient support presented by the agency that such an alleged investigation took place or was taking place.
  • The agency was required to produce a copy of the requested record/video.

We highlight on these pages many decisions that describe the right to obtain records under the RTK Law, but it remains helpful to be aware of enumerated exclusions in the RTK Law that prevent one from obtaining certain documents.

For example, in the recent Final Determination by the Office of Open Records in the matter of Chabot v. Pennsylvania Department of Labor and Industry, Dkt. No. AP 2018-1920 (OOR, Nov. 21, 2018), a request was made for records about a non-criminal investigation.  In addition to providing a helpful explanation regarding the purpose of the RTK Law,  procedures to appeal from the agency on whom a demand is made, and the burden of proof on the government to explain why the documents requested should not be provided, the decision explains several statutory exceptions to the requirement for a government agency to disclose documents.  They include, for example:

  • Investigative materials. Section 708(b)(17)(ii).
  • Records that include the identity of a confidential source. Section 708(b)(17)(iii).
  • Records that includes information made confidential by law. Section 708(b)(17)(iv).
  • Records that, for example, would:
    • disclose the start or progress or result of an agency investigation, except for the imposition of a fine or a penalty, or revocation or modification of a license or permit, or an executed settlement agreement–unless the court determines the settlement to be confidential;
    • deprive a person of the right to an impartial adjudication;
    • cause an unwarranted invasion of privacy, or
    • endanger the life or physical safety of an individual. Section 708(b)(17)(vi).

Another recent decision of the OOR denied a request for police department scheduling policies and police officer timesheets based on an exception that does not require the production of government records when to do so would likely jeopardize public safety. See Gonzalez v. Elizabethtown Police Department, Dkt. No. 2018-1636 (OOR, Nov. 20, 2018).

But compare: Arthur v. Pennsylvania Turnpike Commission, Dkt. No. 2018-1448 (OOR, Oct. 10, 2018) (Agency did not prove that the redacted information requested was proprietary information or a trade secret, and thus, the request for records was granted.)

Supplement: A list of the 30 or so statutory exceptions is provided on the OOR website.

The purpose of this new blog is to inform lawyers, business managers, educators, concerned citizens, journalists, and government officials about the legislation passed in 2008 by the Pennsylvania Legislature known as the Pennsylvania Right to Know Law, a/k/a PA Open Records Law. We will provide interpretations and applications of that law in court opinions and in decisions by the Office of Open Records (OOR). We will also include insights and commentary on the law by the OOR, practitioners, government officials and academics.

The OOR was created by the PA Right to Know Law (RTK Law) as the state agency that makes the initial decision upon an appeal by a party seeking public records who believes that a government agency did not comply with the law in terms of providing the public records requested.

This blog is a work in progress, and may include references to compare similar statutes in other states and on the federal level. Attorney Francis J. Catania is the principal editor of this blog and Francis G.X. Pileggi is a contributing author.

 

For anyone interested in knowing more about the PA Right to Know Law (RTK Law), the first step should be the website of the PA Office of Open Records (OOR). The website of the OOR has a wealth of information, such as links to:

(i) the text and legislative history of the PA RTK Law;

(ii) a list of key decisions of the PA Supreme Court and Commonwealth Court interpreting the PA RTK Law;

(iii) searchable database of decisions on the PA RTK Law;

(iv) an opportunity to subscribe to a service by which the OOR emails a list of decisions made by the OOR, usually at least once each week; and

(v) links to additional sources with information about the PA RTK Law and related types of law and commentary.

A recent decision by the Office of Open Records (OOR) is useful for its explanation of several basic aspects of the Right-to-Know Law (RTKL). See Fowler v. City of Scranton, OOR, Docket No. AP 2018-1830 (Oct. 29, 2018).

Issue Addressed: This matter involved a request for the City of Scranton to provide records about judgments by the City entered against any of its active or retired employees.

Noteworthiness of Decision: Several procedural and substantive points made by the OOR in this short ruling are useful reminders of key aspects of the RTKL, for which the decision includes citations to the statute and case law. For example:

  • The City exercised its right to a 30-day extension to reply substantively to the request;
  • When the City missed that 30-day deadline, the request was deemed denied;
  • Upon a timely appeal to the OOR, the City did not provide a response;
  • The OOR gave both parties an opportunity to make supplemental submissions;
  • The City still failed to reply;
  • A decision was entered in favor of the requester, and the OOR observed in footnote 1 that the statute allows a court to assess attorneys fees, costs and a penalty if a court finds that the request was denied in bad faith.
  • The decision explains the deadline and procedure to file an appeal of the OOR decision to the Court of Common Pleas;
  • The decision notes that the OOR is a “quasi-judicial agency” and should not be made a party to the appeal.
  • Citations to the statutory provisions for the above key points are provided in the decision.

The Commonwealth Court recently required the disclosure, pursuant to the RTK Law, of the identity of the members of a panel reviewing applications for permits to grow, process and dispense medical marijuana in Pennsylvania, in the matter of  Penna. Dept. of Health v. McKelvey, Comm. Ct., No. 1372 C.D. 2017 (Sept. 27, 2018).

Procedural History:

The Office of Open Records (OOR) rejected the argument of the Pennsylvania Department of Health that the requested records could be withheld based on a regulation under 28 Pa. Code § 1141.35(c), which at the relevant time provided that the applicant of a permit may not obtain the names of persons reviewing the application for dispensing medical marijuana.  That regulation has since been amended, but the amendment was not applicable to the instant decision.  On appeal, a reporter for PennLive was granted his request that the Department of Health provide, within 30 days, information regarding the identity of the panel members reviewing the relevant applications.

Noteworthy Principles Announced in the Decision:

(1) Purpose of RTK Law:

In Pennsylvania Department of Health v. McKelvey, the court reiterated the purpose of the Right to Know Law as allowing citizens to “scrutinize government activity and increase transparency.”  See Slip. op. at 5 (citing SWV Yankees LLC v. Wintermantel, 45 A. 3d 1029, 1034, 1050 (Pa. 2010) (stating that the RTKL is “remedial legislation designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials, and make public officials accountable for their actions.”) (citations omitted)).

(2) Exceptions to Presumption:

The court also recited the major exceptions to the presumption that records in possession of a state agency are public.  See Section 305(a) of the RTKL, 65 P.S. § 67, 305(a).  Those presumptions do not apply to information if:  “(1) the record is exempt under Section 708 (of the RTKL); (2) the record is protected by a privilege; or (3) the record is exempt from disclosure under any other Federal or State Law or regulation . . . .”  See Slip op. at 6.

The court explained that those exemptions from disclosure must be narrowly construed due to the remedial nature of the RTKL and an agency bears the burden of proving by a preponderance of the evidence that a record is exempt from disclosure under one of the enumerated exemptions.

The Department argued that under Section 708(b)(1)(ii) of the RTKL, 65 P.S. § 67.708(b)(1)(ii), its regulation at 28 Pa. Code § 1141.35(c) prohibits the disclosure of the names relating to persons reviewing applications.

Court’s Reasoning:

The court’s extensive reasoning included the acknowledgment that the Department failed to establish that the person requesting the information was an applicant, and that the plain language of the regulation the Department relied on does not restrict a non-applicant from obtaining the information.  The court also explained that the interpretation of the Department was inconsistent with the plain language of the regulation, and was therefore rejected.  See pages 8 and 9.

The court also described the elements of the “personal security” exception to disclosure and why it does not apply here.  The personal security exemption from disclosure under the RTKL requires an agency to demonstrate: “(1) a reasonable likelihood of (2) substantial and demonstrable risk to a person’s security.”  See page 10 (citing 65 P.S. § 67.708(b)(1)(ii) and Governor’s Office of Admin. v. Purcell, 35 A.3d 811, 820 (Pa. Cmwlth. 2011).

Conclusion:

The court concluded by reasoning that a mere affidavit stating that a disclosure “may” expose a person, such as the member of a review panel, to a “plethora” of issues is conjecture and “simply too speculative to justify the exemption under the personal security provision of the RTKL.”

Moreover, the court added that the standard to establish an exemption under that provision is that disclosure is “reasonably likely” to result in a substantial and demonstrable risk of physical harm to the personal security of the individual.  See page 12.  That such harm “may” result does not suffice.

It remains useful to compare how the PA RTK Law compares to similar laws in other jurisdictions.  Freedom of Information Act (FOIA) statutes in the State of Delaware, and also the federal counterpart statute do not generally allow access to criminal investigations.  FOIA is the name given to many RTK laws in other states.

Brief Overview

The premise of both the federal and Delaware state FOIA laws is that public business should be conducted in an open and public manner, and thus members of the public are generally entitled to records from public entities. However, that entitlement is not absolute. Both federal and state laws have enumerated exemptions to what constitutes a public record. Neither statute, however, provides anything akin to the PA Office of Open Records.

  •  Under Delaware FOIA laws, criminal files and records pertaining to potential litigation and are not subject to disclosure.

21 Del. C. § 10002(l)[1] of the Delaware FOIA law lists several types of records that are not deemed, for purposes of this statute, “public records,” including:

(4) Criminal files and criminal records, the disclosure of which would constitute an invasion of personal privacy. Any person may, upon proof of identity, obtain a copy of the person’s criminal record. All other criminal records and files are closed to public scrutiny. Agencies holding such criminal records may delete any information, before release, which would disclose the names of witnesses, intelligence personnel and aids or any other information of a privileged and confidential nature.

(9) Any records pertaining to pending or potential litigation which are not records of any court.

21 Del. C. § 10002(l) (emphasis added). In summary, FOIA prevents the disclosure of criminal files and criminal records, and any records pertaining to pending or potential litigation.

  • Criminal Files & Criminal Records

The privacy concerns of witnesses, informants, and defendants themselves prevent the disclosure of criminal records and criminal files through FOIA. Del. Op. Atty. Gen. 10-IB13 (Del.A.G.), 2010 WL 4154565.

[T]he criminal records exemption of section 10002 makes a distinction between “criminal files” and “criminal records.” While any person may obtain a copy of his/her criminal record, subject only to an agency’s authority to withhold certain information contained in the criminal record, “criminal files” are closed; there is no exception in the statute. . . . But other policy concerns expressed by the statute remain. Witnesses frequently speak to authorities on condition of anonymity, or at least with an expectation that their information will be held in confidence with law enforcement. That expectation does not suddenly expire with the completion of the criminal case. In addition, criminal suspects are often arrested by law enforcement when they are not performing at their best. The embarrassment of their behavior often causes them to plead guilty rather than expose their misbehavior to public scrutiny. Thus, the privacy concerns of witnesses, informants and defendants themselves are each implicated by a reading of the statute that would except closed criminal files from the FOIA exemption for criminal files.

Id.

An arrest record is categorized as a criminal record and is exempt from disclosure. Although records relating to the recovery of a handgun, for example, is not clearly identifiable as a criminal record, it may be considered part of criminal file and at the very least, records such as witness statements would be exempted from disclosure for policy concerns. Even if all of the records relating to the recovery of a handgun are not deemed part of a criminal file, as explained below, the records fall within another exemption of the statute.

  • Pending or Potential Litigation

A litigant may not use FOIA to obtain information from the Delaware State Police to use in trial. Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **8-9 (Del. Super. Mar. 31, 2003). In Public Defender v. State Police, the Superior Court held the Public Defender’s Office[2] was not entitled to records from the State Police because “[w]hile the Public Defender’s clients mostly are Delaware citizens and while some of them might be especially curious about the state police training and methods, their interest in the materials is not related to the public’s right to know. Their legitimate interest concerns pending or potential litigation, which is exempt from the Act.” Id.

The Delaware Attorney General’s Office and Delaware courts have consistently held that “FOIA’s pending/potential litigation exemption is designed to maintain a level playing field: a party or potential party to litigation cannot use FOIA to obtain information in lieu of the rules of civil discovery. ‘Delaware courts will not allow litigants to use FOIA as a means to obtain discovery which is not available under the court’s rules of procedure.’” Del. Op. Atty. Gen. 06-ID21 (Del. A.G.), 2006 WL 3113705 (quoting Mell v. New Castle County, 835 A.2d 141, 147 (Del. Super. 2003)); see also Del. Op. Atty. Gen. 04-IB20 (Del.A.G.), 2004 WL 2951950 (“The exemption applies when [i]t is exclusively about litigators and litigants looking for materials that might help them in court.”) (internal citations omitted).

Requesting records from the State Police on behalf of a client to aid in litigating a case, is the exact purpose for which the Delaware Legislature forbade FOIA from being used. One cannot obtain records through FOIA when the sole purpose for obtaining them is to search for evidence that may assist in the course of litigation, even if the requested records do not constitute criminal files or criminal records.

  • Under federal laws, disclosure of investigation records would constitute an unwarranted invasion of person privacy and are therefore exempt from disclosure.

Similar to the Delaware statute, the federal FOIA exempts:

records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source

5 U.S.C. § 522(b)(A)(7). The United States Supreme Court has held that “as a categorical matter that a party’s request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen’s privacy, and that when the request seeks no ‘official information’ about a Government agency, but merely records that the Government happens to be storing, the invasion of privacy is ‘unwarranted.’” Department of Justice v. Reporters Committee for Freedom of Press, 489 U.S. 749, 780 (1989).  In other words, law enforcement records about a private citizen are not subject to disclosure under FOIA.

The ATF[3], by way of example, requires a lawyer to have a client verify his or her identity pursuant to 28 C.F.R. § 16.41(d) before the agency can process a request. If one’s client is the subject of the investigation for which one is seeking records. 28 C.F.R. § 16.41(d) states, in part, “[w]hen you make a request for access to records about yourself, you must verify your identity.” If one’s client is not the subject of the files sought, the law regards disclosure of law enforcement records as an invasion of privacy.

Footnotes:

[1] Copy of the Delaware FOIA statute is available at this link.

[2] The Court held that the Public Defender’s Office was not a citizen under FOIA and refused to recognize the Assistant Public Defender’s presence in her personal capacity reasoning that she admitted that “she was acting on behalf of the office of the Public Defender.” Public Defender v. State Police, 2003 Del. Super LEXIS 111 at **9, 12 (Del. Super. Mar. 31, 2003).

[3] “ATF is a law enforcement agency in the United States’ Department of Justice that protects our communities.”  ATF, About the Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/.