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.

 

 

 

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.

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.

 

“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

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.