Office of Open Records Decisions

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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.

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.

 

 

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.