This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On July 27, 2020, Act 77 of 2020 (“Act 77”) became law without Governor Wolf’s signature, and is codified as 71 P.S. §§ 720.301, et seq.

In a July 28, 2020 press release, Governor Wolf characterized Act 77 as clarifying “that various data and models related to a disaster declaration are public records” for purposes of the RTKL. A closer look at the Act indicates that something different is going on–namely, that the Act creates an exception to the Disease Prevention and Control Law (“DPCL”) which protects “records of diseases” from production except when authorized by public health officials. Act 77 can be read as defining “records of diseases” and planning models based upon that as producible, but only if they relate to a “disaster declaration” such as the March 6, 2020 declaration made with regard to the COVID-19 pandemic.

For anyone interested in filing RKTL requests for information about the impact of COVID-19 and the decision making process involved in the March 6 declaration and related orders, Act 77 is essential reading. We summarize the provisions of the Act below.

Section 301 of the Act contains definitions of terms that are fundamental to Act 77. Some of these definitions are not identical to those in the RTKL. In particular, the definitions of “Commonwealth Agency,” “Disaster declaration” and “record” are key to understanding the Act.

In the RTKL, “Commonwealth agency” applies to any Pennsylvania state agency, including municipalities. For purposes of Act 77, a Commonwealth agency is limited to an “agency or commission of the executive branch under the policy, direction, or supervision of the Governor.” A “disaster declaration” is a declaration of disaster emergency made by the Governor pursuant to the Emergency Management Services Code, particularly 35 Pa. CS. § 7301(c).

Finally, “record” is defined a bit differently than in the RKTL.

The RTKL defines “record” as “information, regardless of physical form or characteristics, that that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.”

In Act 77, this language is retained, but is specifically limited to a “transaction or activity of a Commonwealth agency” as defined under the Act.

Section 302 prohibits the Governor, or Commonwealth agencies, from ignoring RTKL requests for records during a disaster emergency, or from suspending the way a Commonwealth agency normally responds to RTKL requests.

Section 303 of the Act requires each Commonwealth agency to publish guidelines for how it will respond to requests made during a disaster declaration within 5 days of the effective date of the Act, and Section 304 authorizes requester to file a petition with Commonwealth Court to compel a request for records in accordance with RTKL. Such a request may be denied only for reasons authorized by the RTKL.

Section 305 of Act 77 provides three categories of records are considered “public records” for purposes of Act 77, to the extent they are not exempt by Section 708 of the RTKL:

“(1) Data used by a Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.

(2) The process by which a Commonwealth agency determines how the Commonwealth agency will collect the data used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.

(3) Any quantitative or predictive models based on the data collected by a Commonwealth agency which are then used by the Commonwealth agency for any rules, policies or actions taken by the Commonwealth agency in relation to a disaster declaration.”

71 P.S. § 720.305 (emphasis supplied).

This language is clearly designed to permit requester to obtain information from Commonwealth agencies to enable requester to ascertain, and potentially challenge, the manner in which the disaster declaration was enacted and the manner in which the disaster is handled. Such requests had commonly been denied with regard to the COVID-19 pandemic before the passage of Act 77 because what they asked for included “reports of disease” and thus fell within the purview of the DPCL. Unfortunately, it is difficult to assess the effectiveness of a Commonwealth agencies handling of a pandemic without “reports of disease.”

Finally, Section 306 provides that Act 77 applies for the duration of the disaster declaration, as renewed, until the declaration “expires or is terminated by executive order, proclamation, or operation of law.” It also contains a provision that, with regard to the March 6, 2020 declaration regarding the COVID-19 pandemic, requests for records by Commonwealth agencies as defined by Act 77 “shall be treated as if the request for the record had been received by the agency on the effective date [July 27, 2020] of this section.” This language appears to have been intended to start the clock running again for requests pending as of July 27, 2020.

Bottom Line: Act 77 is clearly intended to facilitate requests for information relevant to the Governor’s and DOH’s handling of the COVID-19 pandemic by redefining certain categories of “reports of disease” as producible under RTKL. Whether Act 77 is achieving its purpose will become apparent as appeals from COVID-19 related requests move through the system.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On January 11, 2021, the OOR entered a Final Determination holding that a Request seeking data relating to protected COVID-19 records that had previously been made public by the Pennsylvania Department of Health (“DOH”) is not protected by the Disease Prevention and Control Law of 1955 (“DPCL”) and must be produced under the DPCL. Schorr v. Pennsylvania Dep’t of Health, OOR Dkt. No. AP 2020-1837 (Jan. 11, 2021). (The Final Determination is dated January 11, 2020, but the facts stated therein and the date on which the Determination was actually issued by OOR indicate that this date is a typographical error by the OOR.)

This determination is important because it attempts to enunciate a role for Act 77 with regard to requests for COVID-19 information from DOH.

Background and Facts:

On August 6, 2020, Requester Justin Schorr submitted a Request to the DOH for the following information “in its most complete form from March 2020 to present.” Listed below are the portions of this Request that were not subsequently withdrawn by the Requester:

1. Granular (day by day or, where available, hour by hour) counts of the following:

a. Total Covid-19 patients hospitalized (Statewide and, MOST IMPORTANTLY COUNTY BY COUNTY)
b. Total ventilators in use (COUNTY BY COUNTY, DAY BY DAY)
* * * *
d. The percentage of hospital patients who are transfers from LTCF [Long Term Care Facilities].

2. Clarification with regard to the following:

a. Provide a listing of all facilities which are included in the LTCF data
presented on the DOH website
(https://www.health.pa.gov/topics/disease/coronavirus/Pages/LTCF-Data.aspx)
b. Provide an explanation of the manner in which the excel files also
provided on that same webpage are related to the chart which is displayed.

* * * *
On September 14, 2020, after a thirty-day extension, DOH granted the portions of the Request that sought information publicly available on the DOH’s public website, and denied the rest of the Request based upon several exemptions in RTKL Section 708, and the DPCL. The Requester appealed this decision on September 15, 2020.

On appeal, the Requester argued that he merely sought aggregations of data DOH had already made public, so the DPCL could not apply. The Requester also argued that the data released by DOH did not accord with the numbers reported on DOH’s website, so all responsive records cannot have been made available. DOH took the position that the format in which it chose to make certain records public was part of its decision to release data under the DPCL, and that “the data used in the chart on the Department’s website for reporting facility cases and the data disclosed on their Open Data platform have different sources, and therefore are not identical.” Slip op. at 3.

OOR decided this appeal on the written submissions alone, as permitted under RTKL Section 1102.

Analysis and Holding:

OOR found that information published on the Open Data website responded to Item 1(a) and part of 1(b), and found that the appeal was moot as to that information.

Because Item 2(b) only seeks ” ‘an explanation’ of a disparity that the Requester perceives between data posted by the Department” and not a record, OOR held that Item 2(b) was not a proper RTKL request. OOR also held that information on the Open Data platform concerning COVID-19 counts and ventilator usage statistics since June 2020 was responsive to Items 1(a) and 1(b), mooting those portions of the request. But OOR drew interesting distinctions with regard to Items 1(d), 2(a). and 1(b).

The information in Items 1(d) and 2(a) has not been publicly released by DOH. Item 1(d) has not been made public in any format. With regard to Item 2(a), DOH’s Open Data website contains a listing of all LTCF with COVID-19 infections, but it does not list facilities associated with its online table, which draws from different sources and is thus a separate record for RTKL purposes.

OOR interpreted Item 2(a) as “the list of facilities from the Department’s dashboard,” not the list of facilities from the the DOH’s official dataset, which had been released on the Open Data platform. Because dataset information was not used by DOH or any Commonwealth agency for “any rules, policies or actions” or as part of a “quantitative or predictive model”, it was not covered by Act 77 and thus is still protected by DPCL. However, Item 1(d), which requests “the percentage of hospital patients who are transfers from an LTCF” daily between March 2020 and August 2020, is being used by DOH for purposes “of policies intended to address the COVID-19 pandemic emergency,” and thus was required to be produced under Act 77 and RTKL.

OOR drew a different distinction with regard to the portion of Item 1(b) requesting ventilator statistics between March 2020 and June 2020. Some of the information in Item 1(b) had been produced through day-to-day publication on the DOH’s website, though that information is not currently available, at least not in the form the Requester seeks.

RTKL Section 705 specifically states that an agency is not required to create a record that does not currently exist or format an existing record in a manner that the agency does not currently use. However, OOR found that providing information that exists in an agency database, such as the Open Data information, does not constitute creation of a record, so its production is not precluded from production by RTKL Section 705. Slip op. at 13 (citing and quoting Commonwealth v. Cole, 52 A.3d 541, 549 (Pa. Commw 2012). Because DOH’s evidence did not show any other reason why it could not provide that information, the ventilator statistics requested by Item 1(b) were ordered to be produced.

Bottom Line:

Although OOR typically does not treat information in and of itself as a “record” that must be produced, OOR explicitly recognized in Schorr that Act 77 classifies “data used by a Commonwealth agency for any rules, policies or actions taking by the Commonwealth agency in relation to a disaster declaration” as a public record producible under RTKL, independently of the record or records from which that data was derived.

It behooves anyone seeking information about the sources of the Commonwealth’s COVID-19 policies to frame RTKL requests about those policies with that distinction in mind.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

The Pennsylvania Supreme Court held in Uniontown Newspapers, Inc. v. Pa. Dep’t of Corrections, 2020 Pa. LEXIS 6488 (Dec. 22, 2020), that a requester of documents was entitled to attorneys’ fees under 65 P.S. §67.1304 (“Section 1304”) because delegation of the search for relevant documents by the agency’s open records officer (“ORO”) to a subordinate constituted bad faith conduct.

Although six of the seven Justices agreed that the ORO’s conduct constituted bad faith under Section 1304, they did not agree why that should be so. Thus, the chronology of events that led to the decision is critical to understanding the decision and applying it correctly to future cases.

Background and Facts:   It is significant that OOR was not reversed in the course of these proceedings; instead, this litigation proceeded to the Supreme Court through an original action in Commonwealth Court, brought by requester Christine Haines and the newspaper that employed her (collectively “Appellees”).

In September 2014, the Abolitionist Law Center published a report called “No Escape: Exposure to Toxic Coal Dust,” which alleged that there were increases in disease among staff and inmates at the Fayette correctional facility because of the facility’s proximity to a fly ash dump site. The Pennsylvania Department of Corrections (“DOC”), in conjunction with the Pennsylvania Department of Health (“DOH”) began an investigation of these allegations, consulting a number of sources including mortality lists of inmate deaths (“Mortality Lists”), a database that tracked inmates treated for cancer (“Oncology Database”), reports of inmate medications prepared by DOC’s pharmacy contractor (“Pharmacy Contractor Reports”), and records showing inmates who were enrolled in Chronic Care Clinics.

On September 25, 2014, Appellees submitted a request to DOC for:

“…documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates and staff members with those illnesses. I am particularly interested in various types of cancer reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would also be helpful.”

DOC’s ORO, Andrew Filkosky, denied the request in its entirety. Appellees appealed to OOR, which ordered DOC to disclose “all responsive records” within 30 days. DOC did not seek review of this order.

On December 31, 2014, DOC’s in-house counsel disclosed 15 pages of responsive records to Appellees. Two weeks later, Appellees asked DOC to verify that the December 31 disclosure was a complete response to their request. DOC made an additional review, and subsequently disclosed cancer patient records from November 2014 and January 2015. After that, the director of DOC’s Bureau of Health Care Services (“HCS”) verified that DOC had no other records “of SCI-Fayette inmate illnesses by type and quantity… and comparison of illness rates at other [SCIs].”

In February 2015, Appellees filed a petition in Commonwealth Court to enforce OOR’s production order. The petition also sought sanctions and attorney fees under the RTKL on the ground that DOC’s response to the Request demonstrated bad faith. On December 19, 2016, Commonwealth Court ordered DOC to produce the Chronic Care database, Mortality Lists, Oncology Database of inmate cancer cases, and Pharmacy Contractor Reports, but not individual inmate health records. With regard to the attorney fees issue, the panel was unable to reach a decision on the issue of DOC’s noncompliance; it consequently ordered the parties to enter a stipulation with regard to the disclosure status of these classes of records.

In March 2017, DOC produced Mortality List and Oncology Database information. Afterword, it filed a stipulation saying that the “Pharmacy Contractor Reports and Chronic Care Clinic records remained outstanding.” Slip op. at 5. On March 23, 2018, in a single-judge opinion, Commonwealth Court found that DOC had acted in bad faith by construing the Request too narrowly, failing to search records, and failing to comply with OOR’s disclosure order.   The court directed Appellees to advise the court in writing whether they intended to pursue their claim for attorneys’ fees, together with supporting documentation. Appellees advised that they were pursuing their claim, and after a hearing, Commonwealth Court entered judgment in their favor for $118,458.37.

DOC petitioned for allowance of appeal, which was granted on the following issues:

“1.  Where RTKL Sections 65 P.S. §67.1304 and §67.1305 premise the award of sanctions and attorney fees on a finding of bad faith and willful and wanton behavior, can a court impose those penalties based on a finding that the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, when any duty to independently and personally assess is not clearly delineated in either the statute or the case law?

2.  Did the Commonwealth Court properly construe the statutory language in 65 P.S. §67.1304 as authorizing an award of attorney fees when a court reverses a final determination of an agency rather than when a court reverses the final determination of  the appeals officer?”

Majority Analysis and Holding: Justice Mundy wrote the majority opinion, which was joined by Chief Justice Saylor and Justices Baer and Donohue. The opinion noted that all that ORO Filkosky did was to forward the RTKL request to Cathy Montag, an employee of HCS, who told him that all of the records requested related to the DOC/DOH investigation at Fayette. However, the ORO did not review any records when he denied the request, nor did he direct that potentially responsive records be retained pending resolution of the request, as DOC’s own procedures required. He did not even question Ms. Montag to confirm his impression that, other than the investigation documents, there were no responsive documents other than the inmates’ medical files.

Justice Mundy emphasized that “bad faith,” in the RTKL, does not require proof of fraud or corruption; abnegation of an agency’s mandatory duties prior to denial is sufficient to establish bad faith. RTKL Section 901 requires an agency to make a good faith effort to determine whether any records in an agency’s control are potentially responsive to a request and are “public records” within RTKL that are not subject to an exemption….” Slip op. at 10 (citing RTKL Section 903). Because the ORO did not do these things with regard to Appellees’ request, his conduct constituted bad faith.

Next, the opinion addressed RTKL Section 1304 and the propriety of the attorney fees award. Commonwealth Court had noted that Section 1304 refers to two different “final determinations”; the “final determination of the appeals officer” in the body of subsection (1) and “the agency in its final determination” in subsection (a)(2). For that reason, Commonwealth Court found Section 1304 to be ambiguous. It concluded that a literal reading of the statute would permit an attorney fees award only if the appeals officer’s final determination was reversed, allowing an agency to avoid attorney fees liability for wrongful conduct by refraining from appealing OOR’s final determination.

The majority agreed with Commonwealth Court that a construction of Section 1304 that permits an award of attorney fees only if an OOR determination has been reversed would lead to an absurd result.   See 1 Pa. C.S. §1922 (1) (presumption against statutory interpretation that causes an absurd result). Here, Appellees could not appeal OOR’s determination, because it was in their favor. DOC, in contrast, chose not to appeal, though it could have done so. That refusal to appeal forced Appellees to spend additional money in litigation in order to enforce OOR’s Final Determination and obtain all of the documents they had requested.

The Supreme Court reasoned that: “The practical effect of DOC’s position is to limit a requester to “a civil penalty of not more than $1,500 of an agency denied access to a public record in bad faith.” Slip op. at 25 (quoting 65 P.S. § 67.1305). Thus, the majority held that Section 1304(a)(1) “permit[s] recovery of attorney fees when the receiving agency determination is reversed, and [the agency’s determination] deprived a requester of access to records in bad faith.”

Other Opinions: Justice Dougherty dissented because he did not agree with the other justices that the facts of record were sufficient to prove bad faith on the part of DOC, even for purposes of the RTKL.

Justice Wecht wrote a concurring and dissenting opinion, joined by Justice Todd. His opinion agreed with the majority that DOC’s response, particularly its failure to provide an affidavit attesting to the search performed and the grounds on which the request was denied, constituted bad faith. “An agency should not be able to escape liability by claiming that the ORO was just following the advice of others. Otherwise, the statutory duty of good faith would be rendered nugatory.” Slip op. at 3.

Justice Wecht dissented on the attorney fees issue. He concluded that no attorney fees should have been awarded, based upon his view that the “unambiguous” language of RTKL Section 1304 required that result. He reasoned that the attorney fee provision in the old Right to Know Act (“RTKA”) permitted the requester to be awarded attorney fees if the agency’s “final determination” to deny production was reversed and the agency deprived “willfully or with wanton disregard” of access to documents subject to access under RKTA, or asserted defenses to access that were “not based on a reasonable interpretation of law.”

RTKL changed this provision by creating a separate “quasi-judicial administrative appeal mechanism,” under which an “appeals officer” of OOR would make the initial determination of the propriety of a denial. However, the language of RTKL Section 1304 clearly requires a court to reverse “the final determination of the appeals officer or grant[] access to a record after a request for access was deemed denied…” Because OOR reversed DOC’s denial, “neither of those conditions were satisfied” and attorney fees should not have been awarded. Wecht, J., slip op. at 6 (quoting RTKL Section 1304 (a)). Although Justice Wecht acknowledged that the relevant language of Section 1304 (a) was a “patent mistake,” he maintained that only the General Assembly could “correct its own oversight” and change the language of RKTL Section 1304 to conform to the result reached by the majority. See id.

Bottom Line:

Six of the seven Pennsylvania Supreme Court justices agreed that DOC acted in bad faith with regard to Appellees’ request. Thus, the real issue here is whether RTKL Section 1304 authorizes Commonwealth Court to award attorney fees to a requester where an OOR Final Determination directing production is not reversed, but the agency continues to improperly withhold responsive documents.

Justice Wecht acknowledged in his opinion that the actual text of RTKL Section 1304 is a “patent” mistake, and that “[a]n agency should not be able to escape liability by claiming that the ORO was just following the advice of others…” In light of this acknowledgment, it is difficult to understand his conclusion that RTKL Section 1304 is unambiguous as written. However, it seems unlikely that the General Assembly will accept Justice Wecht’s invitation to amend Section 1304, because the majority opinion has already provided a reading that is in accord with the objectives of the RTKL.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On August 14, 2020, the OOR entered a Final Determination holding that some categories of information relating to personnel hired to work with infection prevention and control at a nursing home (“preventionists”) are producible under the RTKL, but that reports made by the preventionists to the home’s quality assessment and assurance (“QAA”) committee are exempt from production. Nicole Brambila and Public Source v. Bucks County, Dkt. No. AP 2020- (Aug. 14, 2020).

Background and Facts:

Nicole Brambila and Public Source (“Requester”) requested the following material from Neshaminy Manor, a Bucks County nursing home under the RTKL:

  • Names of “preventionists,” their hire date and salary, who were employed to work with infection prevention and control program staff at Neshaminy Manor. (“Item 1”).
  • The written standards, policies and procedures for the home’s infection control program. (“Item 2”).
  • The member names on each facility’s quality assessment and assurance committee, their expertise, and the meeting dates for the committee in 2019 and to date in 2020. (“Item 3”).
  • A copy of the last three reports by the preventionists to the QAA committee. (“Item 4”).
  • A copy of each facility’s most recent annual review of the infection control program (Item 5″).

Bucks County (“County”) denied the Request, on the grounds that the requested records are confidential under federal and state law, specifically 42 CFR § 483.75(h) and the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1301.311 (h). The County’s supporting affidavit, but not its response to the Request or its position statement on appeal, also attested that the records are confidential under the Disease Prevention and Control Law (“DPCL”)k 35 P.S. § 521,15.

Analysis and Holding:

The OOR quickly disposed of the County’s argument that the MCARE Act protects the requested material from production. The relevant section of the MCARE Act, 40 P.S. § 1301.311 (a), only applies to documents “which arise out of matters reviewed by the patient safety committee [of a medical facility]….” Slip op. at 4. However, “medical facility” is defined in the MCARE Act as an “ambulatory surgical facility, birth center, hospital or abortion facility.” A nursing home such as Neshaminy Manor, does not fall within this definition, and the County, which has the burden of proving that the records requested are confidential, did not explain how the MCARE Act’s protections applied.

The County fared better with regard to its argument that the records are protected from disclosure by 42 CFR § 483.75(h). (“Section 483.75(h)”) Section 483.75(h) states that a state may not require disclosure of a QAA committee’s records “except in so far as such disclosure is related to the compliance of such committee with the requirements of this section.” Slip op. at 5.

Brambila construed this provision to mean that a record that exists independently of the QAA committee and its purpose are not exempted from disclosure under Section 483.75(h). Thus, for example, Item 1, information about preventionists and their salaries, is not exempt from production under the RTKL because it serves other purposes than those of the QAA committee. Items 2, 3 and 5 were similarly held not to be protected, and OOR ordered their production as well. But Item 4, reports made by the preventionists to the QAA committee, were created expressly for that committee so it could perform its work. Accordingly, these reports were held to be protected under Section 483.75(h), and thus not producible under the RTKL.

The Final Determination quoted language from the Disease Prevention and Control Law (“DPCL”), 35 P.S. § 521.15, stating that “reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations” were protected and could not be produced to anyone other than the Pennsylvania Department of Health or a local department of health, “except where necessary to carry out the purposes of this act.” Slip op. at 5. OOR did not find this argument persuasive, because the requested records in this case did not consist of “reports of diseases” or actions taken as a result of such reports.

Bottom Line:

Brambila reminds us that the OOR must and will refuse to order production of records otherwise eligible for production under the RTKL that are made confidential and protected from disclosure under a different statute or regulation.

Although the DPCL was rejected as a justification for protecting the documents requested in Brambila, there have been other recent Final Determinations concluding that the DCPL protected information about COVID infections and related information, However, precedent based on these determinations likely has been made obsolete by 2019 Pa. House Bill 2463, which added a new article to the Administrative Code. Under the new article, information used “for any rules, policies or actions taken by the Commonwealth in relation to a disaster declaration” is a public record under the RKTL. Moreover, the new article resets the clock for record requests made since March 6, 2020 by deeming those requests as being made on July 27, 2020, the effective date of the new article. Appeals construing the new statute with regard to requests for information related to COVID-19 and Governor Wolf’s disaster declaration likely will begin to appear in the near future.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On June 9, 2020, the Commonwealth Court handed down a decision in Pennsylvania Dep’t of Labor and Industry v. Chester Darlington, No. 1583 C.D. 2019 (Pa. Commw.).  The decision upheld the OOR’s Final Determination that documents relating to periodic, routine, and regular boiler inspections conducted pursuant to the Boiler and Unfired Pressure Vessel Law (“Boiler Law”) are not exempt from disclosure under Section 708 (b)(17) of the RTKL.

Background and Facts: 

On August 28, 2019, requester Chester Darlington submitted a RTKL request to the Pennsylvania Department of Labor and Industry (“DLI”) for any and all records, including investigation reports, pertaining to a June 15, 2016 incident that took place at the Veolia Energy Plant in Philadelphia.  DLI denied the request based on RTKL’s noncriminal investigation exemption.  During the Requester’s OOR appeal, DLI produced additional documents indicating that some of the boiler inspections at Veolia were regular boiler field inspections while others were “the direct result of a boiler and/or other regulated pressure vessel incident or a complaint” and that some of the boiler inspection records dated back to 1991.

OOR granted the Requester’s request in part.  It held that the Requester was entitled to records relating to the regular annual boiler inspections at Veolia, but not to the records relating to the 2016 incident, as records relating to that incident were a “noncriminal investigation” within the meaning of the RTKL.  Requester did not appeal from the determination relating to the 2016 incident, but DLI appealed from the portion of OOR’s Final Determination that ordered production of reports of regular boiler inspections.

Requester’s position on appeal was that OOR’s Final Determination was correct, because the Boiler Law, under which the regular boiler inspections were performed, distinguishes between “inspection” and “investigation” activities, which are treated differently under the RTKL.  DLI responded that both types of activities warrant protection to help ensure that they result in truthful answers, which might not be the case if information about them was publicly available.

Analysis and Holding:

The Darlington Court began its analysis by observing that an agency’s records are presumed to be public unless they fall within an exemption under the RTKL, and the agency has the burden of proving that an exemption applies.  The exemption at issue here was the “noncriminal investigation” exemption.

OOR determined that the routine boiler inspections were not “noncriminal investigations” for four reasons:  1)  the Boiler Law itself differentiates between “inspections” and “investigations”; 2) routine boiler inspections can be performed by non-Department personnel while investigations cannot be; 3) DLI’s affidavits do not provide sufficient details to justify treating the boiler inspections as “noncriminal investigations” under existing case law; and 4) the disclosure here does not raise the same public policy concerns present in Department of Health v. Office of Open Records, 4 A.3d 803 (Pa. Commw. 2010), which it treated as controlling authority.

The Darlington Court began its review of OOR’s Final Determination with the term “noncriminal investigation.” Although the RTKL does not define the words “noncriminal” or “investigation,”  common usage defines “noncriminal” as “investigations other than those criminal in nature,” and Commonwealth Court precedent defines “investigation” as “a systematic or searching inquiry, a detailed examination, or an official probe.”  Department of Health v. Office of Open Records, 4 A.3d at 811.

In light of these definitions, the Darlington Court turned to the Boiler Law, which clearly distinguishes between an “inspection” and an “investigation.” In particular, the Boiler Law distinguishes between a routine field inspection and an investigation of a particular boiler-related incident, and provides that an investigation must be conducted by DLI while an inspection may be performed by non-DLI personnel. These distinctions indicate that it is inappropriate to equate routine “inspections” with “investigations,” and the conclusory statements in DLI’s attestations failed to provide the Court with any reason to conclude otherwise.

Finally, the requested disclosures relating to regular boiler inspections in this case do not “raise the same concerns about witness confidentiality or harm to reputation” as did the request for nursing home documents that was at issue in the Department of Health case.  In particular, the nursing home documents raise patient privacy concerns which documents about routine boiler inspections do not.  Slip op. at 20.  OOR’s Final Determination was consequently affirmed.

Bottom Line: 

Darlington reminds us that it takes a statutory definition to equate such facially different terms as “inspection” and “investigation.”  OOR correctly determined that the Boiler Law, which defines DLI’s authority and obligations, shows that “inspections” and “investigations” are different things, and a conclusory attestation by an agency official does not change that.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On July 28, 2020, the OOR entered a Final Determination holding that a Request defined solely by a collection of broad keywords and a specific time frame is sufficiently specific under the RTKL to be granted.  Dennis Roddy v. Pennsylvania Office of the Governor, OOR Dkt. No. AP 2020-0915 (July 28, 2020).

Background and Facts: 

Requester Dennis Roddy submitted a Request to the Pennsylvania Office of the Governor (“POG”) for copies of all e-mails sent by Julie Slomski between March 1, 2015 and December 31, 2019, containing the following 14 terms:  Logistics Plus, Berlin, Laughlin, Badhams, Erie Public Schools, Erie Schools, Fabrizi, Fabrizio, Aleksandrowicz, Casillo, Petrungar, John Hawkins, $14 million.  POG denied the Request on the ground that it was insufficiently specific, citing 65 P.S. § 67.703 (“Section 703”). Section 703 requires a request to “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested… .”  On appeal, the Requester took the position that his Request was sufficiently specific.

Analysis and Holding:

In determining whether a particular request is sufficiently specific, OOR applied the three-part test set forth by Commonwealth Court in Pennsylvania Dep’t of Education v. Pittsburgh Post-Gazette, 119 A. 3d 1121 (Pa. Commw. 2015).  First, “[t]he subject matter of the request must identify the ‘transaction or activity’ of the agency for which the record is sought.” Second, the scope of the request must identify a discrete group of documents (e.g., type or recipient). Third, “[t]he timeframe of the request should identify a finite period of time for which the records are sought.” Pennsylvania Dep’t of Education, 119 A. 3d at 1125-26.

Commonwealth Court has emphasized that its three-part test needs to be applied on a flexible, case-by-case basis.  In Roddy, the question was whether the keywords offered were sufficiently specific and whether the timeframe of the request was too long.  OOR concluded that the Request was proper for several reasons.  Though the Request included broad keywords and sought e-mails sent over a 4 1/2 year period, it only asked for document from one person’s e-mail account.  In addition, only 14 keywords appear in the Request, and the time frame element of the Pennsylvania Dep’t of Education analysis is the “most fluid” of the factors considered to determine whether a Request is sufficiently specific.

Bottom Line: 

It is critical to note, in applying the Pennsylvania Dep’t of Education test, that the real objective is to determine whether the information provided in a request, taken as a whole, is sufficient to enable the agency to identify the desired records.  Here, the use of broad keywords and the somewhat lengthy time period did not preclude production under Section 703 because the volume of records sought was limited to a single e-mail account, enabling responsive records to be appropriately targeted.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

A few months ago, the OOR’s Final Determination In re Scott and Janet Brunermer v. Apollo Borough, Docket No. AP 2019-0589 (June 30, 2020) held that, if requested, metadata relating to requested e-mails must be provided to a party requesting that data, even if the requester has already received copies of the e-mails themselves.

Background and Facts:

Requesters Scott and Janet Brunermer submitted a request to Apollo Borough on February 18, 2020 for copies of e-mails, along with the metadata associated with those e-mails, that were exchanged between the Solicitor for Apollo Borough and the BCO of Bureau Veritas concerning certain real property owned by the Requesters. The Borough contended that it had produced all e-mails responsive to the request, except for one e-mail dated October 23, 2019 which it claimed was exempt due to attorney-client privilege. On June 23, 2020, while the instant appeal was pending, the Borough produced this e-mail as well. However, all of the e-mails were produced in PDF format, so no metadata was provided to Requesters, even though the Borough’s affidavit showed that the Borough specifically searched for metadata.

OOR Analysis and Holding:

Because the Borough’s sworn affidavit showed that all responsive e-mails had been produced and there was no evidence of bad faith, the portions of the Requesters’ appeal relating to production of e-mails was dismissed as moot.

The request for metadata associated with the e-mails presents an entirely different issue. An agency such as a Borough is not obligated to extract metadata from its records in order to produce it; instead it may produce the metadata by producing the record “in its native format.” Slip op. at 7 (citing Davis v. Upper St. Clair Twp., OOR Dkt. AP 2011-0800, 2011 PA O.O.R.D. LEXIS 505). Here, however, the Borough produced only the text of e-mails at issue in PDF format, which did not include the metadata associated with those e-mails. Moreover, the Borough neither indicated whether the metadata was in the process of being provided nor made arguments why the metadata should be withheld. Thus, OOR granted this portion of the Requesters’ appeal, ordering production of the metadata within 30 days of OOR’s determination.

Bottom Line: The RTKL presumes all state agency records are producible public records. This presumption applies unless particular records are shown to be exempt from production under 65 P.S. § 67.305(a) (1)-(3). Here, because the Borough did not argue that the e-mail metadata was exempt, Brunermer holds only that no exemption was proven in this case. Future OOR determinations will have to address potential grounds to exempt metadata from production.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

 On September 14, 2020, the Honorable William S. Stickman, IV of the Western District of Pennsylvania entered judgment that Governor Wolf’s “stay at home” order and the order closing “non-life-sustaining” businesses for months (“business shutdown”) are unconstitutional in County of Butler, et al. v. Thomas W. Wolf, et al., Civil Action No. 2:20-cv-677, 2020 U.S. Dist. LEXIS 167544 (W.D. Pa. Sept. 14, 2020).

Governor Wolf promptly moved for a stay of the order.  That motion was denied by Judge Stickman on September 22, 2020.  The Wolf administration plans to appeal from the order.  On October 1, 2020, the Third Circuit granted a stay pending appeal.

Although the opinion and order in the County of Butler do not directly implicate the Right to Know Law, it is relevant to persons challenging RTKL denials or delays based upon the stay-at-home and business shutdown orders.  For that reason, we summarize County of Butler here.

Background:   The Plaintiffs are Butler County, Pennsylvania, three other counties in Western Pennsylvania, four individuals campaigning for political offices in Pennsylvania, and two hair salons and two drive-in movie theater businesses as well as their owners.  Plaintiffs filed a complaint on May 7, 2020, seeking a declaratory judgment that Governor Wolf’s “stay-at-home” and “business shutdown” orders violated their constitutional rights, and on May 20, 2020 moved for speedy hearing of the action pursuant to Fed. R. Civ. P. 57.

Analysis:  The Court began by dismissing the claims asserted by the county Plaintiffs, on the ground that the counties are political subdivisions created by the Commonwealth and, as such, cannot sue for violations of Constitutional rights. However, the individual political candidates, and the businesses and their proprietors, on the other hand (“private Plaintiffs”), may do so.

The claims by the private Plaintiffs fall into three categories:  1) violations of the First Amendment arising from the limitations on gatherings; 2) Fourteenth Amendment substantive due process violations arising from the both the stay-at-home order and the business shutdown order, and; 3) violations of the Equal Protection Clause of the Fourteenth Amendment arising from the business shutdown order.

The opinion notes that the Pennsylvania Supreme Court found the business shutdown order to be constitutional under the Pennsylvania and federal constitutions in Friends of DeVito v. Wolf, 227 A.3d 872 (Pa. 2020), cert. filed, (Apr. 27, 2020), stay denied, 206 L. Ed. 2d 930 (U.S., May 6, 2020), but a federal court is not bound by state court precedent on federal questions, including federal constitutional questions.  Accordingly, the Court addressed the constitutional issues on the merits.

  • Standard of Review.  The right to peacefully assemble and the right of free speech have long been treated the same by the federal courts; both have been analyzed using the intermediate scrutiny standard.  Thus, intermediate scrutiny was applied to the stay-at-home order.  With regard to the business shutdown order, the Court observed that strict scrutiny could have been applied, because the order prohibited interstate travel, which is “of the very essence of a scheme of ordered liberty….”  Slip op. at 46.

However, the Court found the business shutdown order to be unconstitutional, even under intermediate scrutiny.  Intermediate scrutiny, which is typically applied to First Amendment free speech cases, look to determine whether the restraint at issue is 1) content-neutral; 2) necessary to serve a compelling state interest, and; 3) narrowly tailored to meet that compelling state interest.

  • Mootness.  Defendants’ argument that this matter is moot because the state is now in the “green” phase and the stay-at-home and business shutdown orders are no longer in effect was firmly rejected by the Court.  Plaintiffs’ position is that the orders have not been lifted or terminated pursuant to their terms, but have merely been suspended, and testimony from Defendants clearly indicates the Wolf administration’s intent to reinstate them at any time they deem necessary.  As has been held in other cases, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” (citing Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 189 (2000)).
  • The Stay-at-Home order.  The Court concluded that the stay-at-home order is content-neutral, because the plain language of the order does not make a distinction between gatherings  based upon the type or types of communication they are intended to enable.  Moreover, no one denies that attempting to control the spread of COVID-19 is a compelling state interest.  But the order fails constitutional scrutiny because it is not narrowly tailored to achieve its purpose, namely, “flattening the curve”.  For example, the stay-at-home order applied to all Pennsylvanians, whether exposed to COVID-19 or not, and thus was not a “quarantine” as that term is used. The Court contrasted this situation with quarantines imposed during other epidemics, including the 1918 influenza epidemic, which were limited both in scope and duration, and noted that the stay-at-home lockdown order and others like it in other states “are unprecedented in the history of our Commonwealth and our Country.”  Slip op. at 4.
  • Substantive Due Process.  The Court traced the history of the Fourteenth Amendment, and showed that the ability to earn a living free of governmental interference is the core of the protection provide by that Amendment.  Under both orders, the ability to earn a living is severely impacted by the restrictions on travel and on which businesses may continue to operate at all.  Those restrictions would have violated liberty interests even if they were temporary, and had already permanently ended; as noted previously, those restrictions can still be reinstituted at any time.

In addition, the distinction between “life-sustaining/non-life-sustaining” businesses that is the core of the business shutdown order violates the Equal Protection Cause of the Constitution because it is arbitrary.  The Governor’s policy team never had a specific definition or criteria to distinguish “life-sustaining” from “non-life-sustaining” businesses, and the list of “life-sustaining” businesses continued to fluctuate while the system was in place.  Worse still, after the waiver process closed on April 3, 2020, a business that was wrongly classified as “non-life-sustaining” under some version of the list no longer had any means to seek a change in its status that would permit it to reopen.

Defendants claimed that they used the North American Industry Classification System (“NAICS”) manual to develop their classification, but the purpose of NAICS is simply to permit federal agencies to classify businesses “for the purpose of collecting, analyzing, and publishing statistical data related to the U.S. economy.”  NAICS does not make any distinction between “life-sustaining” and “non-life-sustaining” businesses, and does not even contain those terms in its manual.  Slip op. at 56.

The arbitrariness of the “life-sustaining” versus “non-life-sustaining” classification is further shown by its effects.  For example, evidence presented in this case shows that many “non-life-sustaining” businesses, such as R.W. McDonald & Sons, a small appliance and furniture store, were forced to close, while larger businesses carrying the same products, such as Lowes, Home Depot, and Walmart, were deemed “life-sustaining” and were permitted to continue to operate.  Slip. op as 60.

Bottom Line:  The stay-at-home order is unconstitutional because it burdens the rights of large numbers of people statewide and may be reinstituted pursuant to its terms at any time, without limitation.  The business shutdown order also may be reinstituted, and in addition randomly terminates the right of certain persons to pursue their chosen means of earning a living on the basis of an arbitrarily created and undefined distinction between “life-sustaining/non-life-sustaining” businesses.    It is already clear that this case will be appealed to the Third Circuit and, because the stakes are high for the parties concerned, the U.S. Supreme Court may well be asked to rule on these constitutional issues.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

Within six weeks of the Pennsylvania Supreme Court’s decision in Easton Area School District v. Miller, 13 MAP 2019, 2020 Pa. LEXIS 3378 (“Easton”), the OOR was required to apply the Easton holding to a school bus video request.  That holding is the OOR’s Final Determination in Tricia Mezzacappa v. Colonial Intermediate Unit 20, Docket No. AP 2019-1922 (July 31, 2020).

Background and Facts:

On September 4, 2019, the Requester filed a RTKL Request directed to the Colonial Intermediate Unit 20 (“Unit”) for “bus video AM route only for the first day of school 2019-2020.”  The Unit denied the Request, contending that the video was exempt under the Family Education Rights and Privacy Act (“FERPA”).

The Requester appealed to OOR, which invited the parties to supplement the record. The Unit’s position statement included verified attestations by the Unit’s Open Records Officer, its Executive Director, and its Director of Technology that:  1) the requested videos contained personal details of minor students; 2) the Unit lacks the technology to redact the videos, and; 3) after performing a balancing test, the Unit determined that the requested record could not be released. With the agreement of all parties, OOR stayed the matter pending the Easton decision.

After Easton was handed down, OOR reopened the record to permit the parties to address the effect of that decision on the appeal.   The Unit submitted supplemental attestations by its Open Records and Director of Technology in support of the positions it had taken before the Easton decision.  The Requester submitted a statement saying that the Unit failed to demonstrate any expectation of privacy in the locations where a bus stops on public roads, and that redaction of the faces of students would be acceptable.

OOR Analysis and Holding:

The Unit advised OOR that it had conducted the necessary balancing test and determined that the public interest in disclosure far outweighed the privacy rights of the students and their families.  It argued that redaction was impossible, both because it lacked the capability to perform such redactions, and because it would have to redact, not only student information, but street signs, addresses, and any information that would show the actual route taken by the bus.

As per Easton, OOR rejected the argument that redaction of information that would show the bus route was necessary, because there is no expectation of privacy in any information that would reveal public information such as school bus routes.

OOR accepted the Unit’s attestation that it lacked the capability to redact the video itself.  It then looked to Section 1307(g) of the RTKL to resolve the redaction issue.  Section 1307(g) provides that “miscellaneous costs an agency necessarily incurs for complying with a request may be imposed upon the Requester so long as the costs are reasonable.“  Slip op. at 11.  Accordingly, the Unit was required  to provide the Requester with an estimate of reasonable costs necessary to have the video redacted with thirty (30) days of OOR’s Final Determination.  Upon payment of those costs, the Unit would be required to provide the redacted video. 

Bottom Line: 

An agency must provide an estimate of redaction costs to the Requester when video redaction is necessary under Easton and the agency lacks the ability to perform the necessary redactions.

This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond

On June 18, 2020, a divided Pennsylvania Supreme Court held that a school bus surveillance video was  not exempt from disclosure under the RTKL in Easton Area School District v. Rudy Miller and The Express Times, Docket No. 13 MAP 2019.  Although the Supreme Court majority agreed with Commonwealth Court that the video must be disclosed, it held that constitutional privacy concerns require application of a balancing test and redaction of recognizable images of students before disclosure. (For additional research on this topic, consider an OOR decision highlighted on these pages in a different case that also addressed issues that arise in connection with the RTKL when a bus video is requested.)

Original Issue: 

Did Commonwealth Court err as a matter of law in concluding that a school bus surveillance video was not exempt from disclosure under RTKL solely because it is an “education record” for purposes of Section 1232g of the federal Family Educational Rights and Privacy Act (“FERPA”)?  The Supreme Court answered this question in the negative.

Background:

A reporter for The Express Times requested a copy of a school bus security camera video from Easton Area School District (“Easton”) under the RKTL.  The video showed an elementary school teacher “roughly physically disciplin[ing] a child.” Slip op. at 2.  Easton denied the request pursuant to RTKL Subsection 708 (b)(1)(i), which exempts from disclosure public records that, if produced, would result in a loss of federal or state funds by an agency, a result dictated by FERPA’s protection from disclosure of a student’s “education record” without parental consent.

OOR found that the video was not an “education record” as defined by FERPA, and ordered its production.  Easton appealed to the Court of Common Pleas, which agreed with OOR and affirmed.

A unanimous Commonwealth Court panel affirmed the Court of Common Pleas, noting that a record does not need to relate solely to academic performance to be an “education record” under FERPA.  However, Commonwealth Court held that the record needed to be “directly related to a student” to be an “educational record,” and the video was only “tangentially related” to the students depicted.  This “directly related” determination is content-specific and must be made on a case-by-case basis.  Slip op. at 6.

The Majority Ruling: 

Before the Supreme Court, Easton argued that the video is an “education record” under FERPA because it contains “personally identifiable information,” about a student.  “Personally identifiable information” is defined as “information … that would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”  Slip op. at 6.  Since, under FERPA, an education record may be disclosed only with parental consent, Easton maintained that the video is not a “public record” under the RTKL and is thus exempt from disclosure.

The Express Times argued that the video was a presumptively public record and that Easton failed to establish that the RTKL exempts the video from production.  It is the “policy or practice” of producing information such as that contained in the surveillance video that is proscribed by FERPA and would result in the loss of federal funding, and Easton never proved that it had such a practice or policy.

The majority agreed with Easton that the surveillance video is an “education record.” It also agreed with The Express Times that Easton had to prove, and failed to prove, that the RTKL’s exemption for records whose disclosure would cause it to lose federal funds applied.  But the majority was not satisfied with simply upholding Commonwealth Court, partly because it considered the video to contain “personally identifiable information” that directly relates to a student, not just to a teacher, and partly because it concluded that constitutional rights were implicated by the RKTL request at issue.

The majority observed that “personally identifiable information” is protected under the Pennsylvania Constitution, and may not be produced even if the record in which it appears is otherwise subject to production under the RKTL, Slip op. at 27 (citing Pennsylvania State Educational Ass’n v. Commonwealth, 637 Pa. 337, 148 A. 3d 142 (2016)).  Both FERPA and the RTKL provide that a record containing both disclosable information and protected information may be disclosed if the protected information is redacted before disclosure.

Thus, the majority held that an agency asked to disclose a public record under RTKL must first apply a constitutional balancing test “to determine whether the right of informational privacy outweighs the public’s interest in dissemination,” slip op. at 26-27.  Such considerations “may necessitate redaction of personal information not otherwise permissible under the RKTL.”  Slip op. at 27.   Consequently, Commonwealth Court was affirmed, with instructions orders to redact the students’ “personally identifiable information” before disclosure.

Concurring and Dissenting Opinions:

In an opinion which Justice Mundy joined, Chief Justice Saylor agreed that the video at issue is an “education record,” but otherwise disagreed with the majority’s ruling.  The majority’s rationale raises the possibility that every refusal to produce an “education record” would be sufficient to support an RTKL Subsection 708 (b)(1)(i) exemption because even a single refusal could be deemed sufficient to establish a “policy or practice” of refusal to produce, making the RTKL exclusionary language meaningless.  Thus, he would have reversed Commonwealth Court’s order.

In an opinion which Justice Wecht joined, Justice Baer agreed that Commonwealth Court should be affirmed, but concluded that the privacy issue was not before the Court.  He would not have required redaction or discussed any balancing test.

Bottom Line: 

The Supreme Court now requires agencies to apply a constitutional balancing test whenever a RTKL disclosure request directed to the agency implicates an individual’s privacy rights.  It remains to be seen whether the extra burden this ruling imposes on agencies will result in changes to the RTKL.