A recent decision by the PA Office of Open Records is notable because of its reliance on the right to privacy contained in the Pennsylvania Constitution to prevent the requesting party from obtaining records that might otherwise be obtainable based on the Right to Know Law.  See Feliciano v. Philadelphia District Attorney’s Office, PA OOR, Docket No. AP 2019-0275 (April 1, 2019).

Brief Background:

This Final Determination involved a request under the PA RTKL for information related to a former Assistant District Attorney in Philadelphia.  The D.A.’s office denied the request that sought personnel records.  Upon appeal, the Office of Open Records (OOR) granted the appeal in part and denied it in part.

Key Takeaways:

·     The most noteworthy part of this opinion is the recognition based on the Pennsylvania State Constitution that the right to privacy trumps the Pennsylvania Right to Know Law in certain instances.  Specifically, the Pennsylvania State Constitution, although it does not specifically use the word “privacy” in the section cited, has been interpreted by the Pennsylvania Supreme Court to protect a right to privacy for personal data and to prevent the production of what would otherwise be public records that would be produced under the Pennsylvania PA RTKL.  See Pa. Const. Art. I, § 1.

·     For example, the Pennsylvania Supreme Court has ruled that the constitutional right to privacy protects the disclosure of personal phone numbers and home addresses, as well as social security numbers of state employees.  Generally, the court requires a balancing test to balance the right to privacy for one’s personal information with the public interest in disclosure.  See Pa. State Educ. Ass’n v. Commonwealth, 148 A.3d 142 (Pa. 2016).

·     The OOR also explained that the RTKL is not superseded by the Pennsylvania Inspection of Employment Records Law (“IERL”).  The IERL addresses the right of employees to certain information in their personnel file held by an employer.  That law does not bar disclosure under the RTKL.

·     Section 708(b)(7) of the RTKL does exempt from disclosure certain records regarding a state employee, such as performance ratings or reviews and written criticisms of an employee, as well as information relating to discharge–with the exception of the final action of an agency that results in demotion or discharge.  See 65 P.S. §§ 67. 708(b)(7) (vi) – (viii).

·     This final determination also recognizes that Section 708(b)(6) of the RTKL exempts personal information such as home phone numbers and personal email addresses and other confidential personal identification.  This statutory protection overlaps some of the constitutional privacy protections.

·     The Pennsylvania Supreme Court did not expressly define all of the potential types of “personal information” subject to the balancing test that protects certain types of information–but has recognized specific examples of personal data for which privacy concerns outweigh the public interest, such as the right not to disclose personal telephone numbers, social security numbers, and home addresses.

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.

The Office of Open Records (“OOR”) recently issued a decision in which it denied a request for unredacted invoices of an attorney for a school district based on the attorney-client privilege. In the matter of Campbell v. Pennsbury School District, PA OOR, Docket No.: AP 2018-2171 (Feb. 14, 2019), the OOR upheld a decision of the school district to redact legal descriptions from invoices requested.

Important Legal Principles in this Decision:

Key takeaways in this decision that should have widespread application can most efficiently be highlighted through the use of the following bullet points.

  • The Pennsylvania Right to Know Law (RTKL) allows the use of the attorney-client privilege as a basis for state agencies to deny requests for records or to redact privileged information, even though the burden of proof that such privilege applies is on the party asserting the privilege. See RTKL Section 708 and Levy v. Senate of Pa., 34 A.3d 243, 249 (Pa. Commw. Ct. 2011).
  • The RTKL defines privilege as “the attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonwealth.” See 65 P.S. Section 67.102.
  • In order for the attorney-privilege to apply, an agency must demonstrate that: (1) The asserted holder of the privilege is or sought to become a client; and (2) The person to whom the communication was made is a member of the bar of a court, or a subordinate; and (3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, not for the purpose of committing a crime or tort; and (4) The privilege has been claimed and is not waived. Slip op. at 5.
  • After an agency establishes the privilege was properly invoked under the first three prongs, the party challenging invocation of the privilege must prove waiver under the fourth prong. Id. However, simply invoking the privilege does not excuse the agency from the burden it must meet to withhold records. Id.
  • The Pennsylvania Supreme Court has held that the attorney-client privilege in regard to descriptions of legal services contained within legal invoices does not turn on the category of a document such as whether it is an invoice or a fee agreement, but rather: “the relevant question is whether the content of the writing will result in disclosure of information otherwise protected by the attorney-client privilege. Levy v. Senate of Pennsylvania, 65 A.3d 361, 373 (Pa. 2013). The Pennsylvania high court approved a “line by line analysis” for the review of an invoice to determine whether it contains privileged information. Id.

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.

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.