In County of Berks v. Pennsylvania Office of Open Records, 2019 WL 1076828 (Pa. Cmwlth. Ct. Jan. 3, 2019), the court explained that it is well established that OOR and its appeals officers have authority to order an in camera review of documents that have been withheld or redacted where, in the appeals’ officers’ judgment, in camera review is necessary to develop an adequate record to rule on an agency’s claim of privilege or exemption.

Moreover, the court explained that this statutory basis for in camera review by OOR does not intrude upon the Pennsylvania Supreme Court’s exclusive authority to regulate the practice of law under Article V, Section 10(c) of the Pennsylvania Constitution.  Nor, the court explained, does the exclusive authority of the Supreme Court to regulate the practice of law deprive OOR of subject matter jurisdiction to make a ruling about whether a document submitted for in camera review is protected by the attorney/client privilege, attorney work product doctrine, or Rule of Professional Conduct 1.6(a), which prohibits a lawyer from disclosing confidential information regarding the representation of a client without the informed consent of the client. Id. at * 9.  There was no merit to the argument that OOR did not have the authority to review privileged data in camera.

The court also rejected the argument by the County of Berks that an appeal of a Final Determination by OOR should not be considered by the Court of Common Pleas, which would be the ordinary appeal process, and that the Commonwealth Court should assume original jurisdiction and bypass the traditional appeal process for an OOR determination. The Commonwealth Court rejected the county’s argument that the statutory remedy of an appeal of an OOR Final Determination would be inadequate because the requested declaratory relief, according to the county, would prevent duplicative litigation in which counties would raise the argument that they are exempted from the RTKL based on The County Code.

The court explained that during the pendency of the appeal, new legislation was passed to amend Section 406 of The County Code by creating a new section as follows:

“Except as otherwise provided by this Act, records of county offices shall be open for inspection subject to the rules and regulations provided in the Act of February 14, 2008 . . . known as the ‘Right-to-Know-Law.’”

That new legislation now makes it beyond dispute that the RTKL will apply to records’ requests to counties from December 23, 2018 onward.

Thus, because the County conceded that the RTKL applies to records’ requests to counties after the new legislation went into effect, and that declaratory relief that they sought was limited to requests prior to that new Act, the court explained that it was not necessary for it to exercise its original jurisdiction.

In an apparent issue of first impression, the Commonwealth Court granted attorneys’ fees in connection with an enforcement action under the RTKL. In Uniontown Newspapers Inc. v. Pennsylvania Department of Corrections, 197 A.3d 825 (Pa. Cmwlth. 2018), the court granted attorneys’ fees to a newspaper in connection with fees incurred to enforce a decision of the OOR requiring the Department of Corrections (DOC) to produce the requested documents.

Procedural Background:

The Commonwealth Court previously issued an opinion in this matter finding bad faith on the part of the DOC under the RTKL. See Uniontown Newspapers Inc .v. Pennsylvania Department of Corrections, 185 A.3d 1161 (Pa. Cmwlth. 2018).  Subsequent to that decision, the requester submitted a notice of intent to seek attorneys’ fees under the RTKL, and submitted legal invoices with its fee petition.  The court held a hearing requesting evidence of what constitutes “reasonable attorneys’ fee” under the RTKL.

The court explained that the requester enlisted the ancillary appellate jurisdiction of the Commonwealth Court to enforce a final determination in its favor by the OOR.

Legal Basis for Award of Attorneys’ Fees:

The court provided an extensive analysis under Section 1304(a) of the RTKL, 65 P.S. § 67.1304(a), which allows a court to award attorneys’ fees if the court reverses a final determination or grants access, when either: “(1) an agency acted with willful or wanton disregard of the rights of access in bad faith; or (2) an agency’s denial was not based on a reasonable interpretation of the law.” See Section 1304(a).

The court found that the DOC, the receiving agency, denied access willfully and with knowing disregard of the rights to access of the requester, and otherwise acted in bad faith as explained in the court’s prior opinion finding bad faith. The requester sought enforcement of the reversal of the DOC’s denial by the OOR, which qualifies it for an award of reasonable attorneys’ fees. See footnote 8 and accompanying text.

Reasonableness of Attorneys’ Fees:

The court explained that a determination of the reasonableness of attorneys’ fees requires that the court review the amount of work done, the character of services rendered, the difficulty of the problem involved, and the professional skill and standing of the attorney. The court also considered the following factors:  the importance of the litigation; the amount of money or value of the rights involved; the degree of responsibility incurred; the results counsel obtained; and the client’s ability to pay a reasonable fee for the services rendered.

The court found that there was no requirement that it review each invoice on a line-by-line basis.

The court held that the standard for recovery under Section 1304(a) of the RTKL is not to award all attorneys’ fees and costs incurred and paid, but rather only reasonable attorneys’ fees. The court was critical of the paucity of evidence in the record as to the reasonableness of the amount of fees–other than the affidavits from the attorneys and the testimony of the client.  Although not explicitly stated, the implication in the court’s opinion was that the court would have preferred additional testimony or affidavits from a third-party qualified to opine about the reasonableness of fees. See footnote 11 and accompanying text.

The court also explained that fees would only be awarded on aspects of the litigation on which the requester prevailed.  Ultimately, after reviewing the fees sought, the court granted approximately $118,000 in attorneys’ fees, as compared to the request for over $200,000 in fees.

A recent Commonwealth Court decision held that the OOR may conduct an in camera review of records sua sponte even if none of the parties before it makes such a request.  The court found that the Pennsylvania RTKL gave the ORR and its appeals officers the authority to conduct such a review. See County of Berks v. PA Office of Open Records, et al., No. 170 M.D. 2018 (Pa. Cmwlth. Jan. 3, 2019).

A recent decision of the Commonwealth Court of Pennsylvania upheld a determination by the Office of Open Records, and concluded that neither the Pennsylvania Department of Health nor the private company involved had established that the withheld records were exempt as confidential proprietary information under Section 708(b)(11) of the RTKL. See Broomall Operating Company, LP v. Murray, Pa. Cmwlth Ct., No. 1685 C.S. 2017 (Dec. 14, 2018).

Why This Case is Noteworthy: This case is noteworthy for providing a rationale and supporting case law for the provision in the RTKL that in order for confidential proprietary information, including trade secrets, to be exempt from disclosure, several requirements must be satisfied.

Brief Background:

This case involved a request by an attorney for information regarding the sale of a nursing home that he was suing in two personal injury suits. He sought records regarding the applications to the Pennsylvania Department of Health (DOH) for a license for the new management of the facility, and information about the new owners of the facility, including the related submissions to the DOH.  The DOH granted in part and denied in part the request, and redacted documents that were provided.  The OOR ruled that the DOH improperly withheld documents that were neither confidential nor proprietary, and the DOH failed to meet its burden to establish that the records were exempt from disclosure or constituted financial records to which a Section 708(b)(11) exemption would apply.

The OOR issued its final determination in October 2017. The OOR decision was appealed directly to the Commonwealth Court.

Legal Analysis:

The court began its analysis with an overview of the RTKL including its purpose to empower citizens by providing them access to information regarding the activities of government. Slip op. at 6.  The court also explained that exceptions to disclosure of public records must be narrowly construed. Id. at 7.  The standard of review of a final determination of the OOR is de novo and the scope of review by the court is plenary.

Importantly, the court observed that records in the possession of a Commonwealth agency are presumed to be public unless they are exempt under Section 708 of the RTKL, protected by a privilege, or exempt from disclosure under any other federal or state law or judicial order or decree. See Section 305(a).  Slip op. at 11.  The presumption is that government records are public and the government agency has the burden to prove that an exception to the duty to disclose applies. Id. at 11-12.

Regarding an alleged exemption for trade secrets and “confidential proprietary information” of a private company that might be in the possession of an agency, the court described the prerequisites that must be satisfied in order to successful assert that exemption. See Section 708(b)(11).

Section 102(ii) defines “confidential proprietary information.” The court explained the criteria that must be satisfied in order for the court to find that the disclosure of such confidential information would “cause substantial harm to the competitive position of the person from whom the information was obtained.”  Slip op. at 13.

Reasoning of the Court:

The court reasoned that in this case the only support for the exemption presented was a “conclusory statement” that could not satisfy the low burden to establish that the documents in question were exempt from disclosure as confidential proprietary information. An affidavit was submitted that merely pointed out that the document in question was unique–but it did not establish whether the information in the document was confidential for purposes of the exemption based on the criteria established by the statute and by case law. Id. at 16.

The court cited to other cases where an affidavit was presented but because it was not detailed and merely conclusory, it was not sufficient to prove that the requested records were exempt from disclosure. Thus, the decision of the OOR was affirmed.

Bottom Line: The prerequisites and nuances that must be addressed in order to qualify for a confidentiality exemption will not be satisfied by a conclusory affidavit.

 

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

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.