Transparency Zone, April 2022 Edition

Some interesting final determinations from April of 2022.

Some records are explicitly exempt under individual laws:

The Local Taxpayer Bill of Rights exempts records that contain any information arising from tax investigations or audits, including records pertaining to the date on which an audit was commenced, since that would require the agency to reveal that it is collecting taxes from specific companies and initiating audits thereof. 2022-0595

The Insurance Department Act exempts from the RTKL records obtained during the Department of Insurance’s investigations into suspected insurance fraud and unfair trade practices. 2022-0547

The Unemployment Compensation Law states that records related to unemployment are confidential and exempt from the RTKL; the RTKL itself also contains a provision exempting a wide range of UC claimant information. 022-0677

Asking for any records that include your name may be an insufficiently specific request. 2022-0771

Most student records are protected, even when they pertain to your own children.  However, parents might have a separate right to access under the Federal Educational Rights and Privacy Act (“FERPA”).  2022-0708

The home addresses on elected officials’ Statement of Financial Interest may not be redacted. 2022-0862

The Transparency Zone, March 2022 Edition

Today we are unveiling a new monthly feature in our blog: 

The Transparency Zone

Each month, we will list final determinations of that are of interest, either for their topic or the RTKL nuance highlighted. While not all of them can be about finding buried gold or the secret location of a kangaroo, the OOR consistently explores thought-provoking issues and concepts.

Even your own medical records are exempt from disclosure. (2022-0609)

Anonymous requesters may be outright denied under the RTKL. (2022-0355)

Agency did not prove that surveillance video footage would reveal identify of medical marijuana patients. (2022-0103)

A high school football coach’s playbook is not a record of the school district. (2022-0378)

A requester may appeal the properness of redactions. (2021-2729)

Since a police report regarding a complaint about a neighbor’s wind chime is part of a noncriminal complaint, it is a protected record. (2022-0367)

The hold music audio file used in a local government’s telephone system is not a record of the agency. (2022-0248)

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2021 Annual Report

The Office of Open Records is proud to present its 2021 Annual Report.

Read it here.

Highlights from this year’s Annual Report include:

  • 2,990 appeals were filed with the Office of Open Records in 2021, the busiest year ever.
  • Of those, 2,384 appeals involved local agencies; 549 involved state agencies.
  • Issued 2,913 decisions, the highest number ever and a 35% increase in five years.
  • Top 10 issues most raised on appeal and addressed by OOR.
  • 10 examples of records accessed via the RTKL.
  • Top OOR accomplishments in 2021.
  • 90 mediations to resolve appeals and 75 training sessions conducted across the state.

Daily Sunshine Week Webinars March 14-18 at 2 p.m.

Good afternoon,

March 13 through March 19 has been designated as Sunshine Week in Pennsylvania.  It is a week dedicated to promoting government transparency and accountability. 

The Office of Open Records is hosting daily webinars at 2:00 p.m. on various topics and there will be a limited time for questions and answers. 

These webinars are conducted via Microsoft Teams and you may be asked to download a small application. Please test the link prior to the webinar and speak with your IT department if you encounter issues.  Watch the webinars by clicking here to join the Microsoft Teams meeting.

You may also listen to webinar audio by joining via telephone at (267) 332-8737.  The Conference ID is 646 597 282#.

Monday, March 14: Sunshine Act  

Learn the how, when, where and why of public government meetings.  This panel of speakers will discuss a number of topics including the impact of COVID-19 on public meetings, new agenda requirements, public and live presence at meetings, case updates on Sunshine Act issues, and a practitioner’s view on the Sunshine Act related issues facing specifically local governments and schools.  Speakers will be George Spiess, the OOR’s Chief of Outreach and Training, Kelly Isenberg, an OOR Senior Appeals Officer, and Alexis Wheeler, Esq., an Associate Attorney at Strassburger McKenna Gutnick & Gefsky and Secretary of the Allegheny County Bar Association School and Municipal Law Section.

Tuesday, March 15: Submitting Evidence

Get an inside view of what kind of evidence an Appeals Officer considers when making a decision during an appeal.  The speakers will discuss and explain step by step how to successfully submit affidavits and evidence to the Office of Open Records.

Wednesday, March 16: Mediations

Don’t miss our Mediation webinar! This webinar will explore the OOR’s Mediation Program and discuss what this alternative means of resolution actually is, what happens during a mediation session, and why this process may be the easiest, quickest method of successfully resolving a RTKL appeal.  The leader of OOR’s mediation program, Katie Higgins, will provide an overview and talk with attorney Paula Knudson Burke about her experiences representing the media in OOR mediations.   

Thursday, March 17: Trending Topics in the Right-to-Know Law

Join Executive Director Liz Wagenseller, Deputy Director Nathan Byerly, and Outreach and Training Chief George Spiess for an interesting discussion on “trending topics” within government transparency that impact day to day life.  These topics will include but not be limited to discussions about RTKL appeals involving school subjects and curriculum, masking policies, and the 2020 election.  The audience is encouraged to send any questions, comments or topics they would like discussed beforehand.

Friday, March 18: Aggregated Data

Data, data and more data.  Government agencies collect and store an enormous amount of information.  Storage is as varied as the type of data collected.  Speakers will discuss the interaction of different types of data with various storage tools and how the RTKL applies.

Annual Training on November 18, 2021

The Office of Open Records is conducting its annual Right-to-Know Law (RTKL) and Sunshine Act training on Thursday, Nov. 18, from 10:30 a.m. to noon.  This year’s remote session will be available via Zoom and will include the following topics:

  • Discussion on the impact of COVID-19 on the RTKL and lessons learned,
  • Update on Sunshine Act agendas and virtual meetings,
  • Legal update involving RTKL court cases and OOR Final Determinations, and
  • A look ahead to RTKL in 2022 – including discussions on pending legislation.

The OOR’s Annual Training is free and open to everyone. Attendees will have ample opportunity to ask questions.

More details on this year’s Annual Training and how to register can be found at https://oor-training-2021.eventbrite.com.  Unfortunately, CLE credits are not available this year.

Fines issued for finding of bad faith in Cal U open records request

Last week, the Commonwealth Court ordered California University of Pennsylvania to pay over $14,000 in legal fees to a newspaper for frivolous conduct and acting in bad faith for how it handled an open records request (California Uni of PA v. Bradshaw – 1491 C.D. 2018). The Court also allowed the maximum amount of statutory damages against the University.  This is one of only a handful of cases e in the RTKL’s 12-year history that a financial penalty was issued for acting in bad faith.

Given the infrequency of such a finding, a closer look is warranted.

First, some background. The case centers on the Observer-Reporter’s request for records of any donations made by Manheim Corporation to the Foundation for Cal U. This was part of the newspaper’s investigation into collapse of a university parking garage that was constructed by Manheim Corp.  The University denied the request. The Requester appealed and the OOR ordered the records released in 2018. The Court eventually upheld the OOR’s decision and issued a finding of bad faith. 

The Court made its finding of bad faith for two reasons.

  • The case went through various unnecessary court proceedings over several months, while the records didn’t even exist. If the University had met its basic legal responsibility and conducted a proper review, it would have discovered that no records existed, and the case would not have proceeded as long as it did. The Court stated: “The University’s admitted abnegation of its mandatory duties under the RTKL in failing to conduct a proper search for responsive records prior to issuing its denial to the RTKL request warrants a finding of bad faith on behalf of the University under Sections 1304(a)(1) and 1305(a) of the RTKL.”
  • The University’s claim that it did not possess records of the Foundation ignored established precedent that clearly states that such records are public records of the agency. This is because a university foundation that conducts fundraising on behalf of a university performs a governmental function, thus making records subject to access.  See East Stroudsburg Univ. Foundation v. OOR, 995 A.2d 496 (Pa. Commw. Ct. 2010).  As stated in the opinion, the University’s “grounds for denial was ‘not based on a reasonable interpretation of law’ and its subsequent pursuit of its legal challenge on appeal in this respect was frivolous. “

So, what are the lessons learned for agencies here?

First, always search for potentially responsive records before issuing a denial. Do not automatically assume the records exist; be sure.  Proving that an agency does not have the records, or they do not exist, is one of the most definitive ways to deny a request. Furthermore, as is the case here, it can avoid costly and timely appeals.

Second, ensure that your arguments for denial have reliable legal support. It is not a good strategy to deny access to records for a particular reason unless you can back that reason up in court. As outlined even in this case, the Court is amenable to rational arguments for denial, even if reasonable minds may disagree.  The road to a bad faith finding starts with arguments that clearly contradict established precedent.

Finally, a reminder that the agency is responsible for reviewing possibly responsive third-party contractors’ records. The OOR often must grant for agencies who fail to realize this and do not take the proper steps to do so.

NEWS RELEASE: Office of Open Records Releases Report on Right-To-Know Law Information Posted on Government Agency Websites

News Release

FOR IMMEDIATE RELEASE
August 31, 2021

Link to Report

HARRISBURG (August 31, 2021) – The Office of Open Records (OOR) released a report finding that while most government agencies in Pennsylvania provide Right-to-Know Law (RTKL) information on their websites, improvements can still be made to increase citizens’ access to public records. 

“I am pleased that the overwhelming majority of agencies we reviewed provide some information about the RTKL on their websites,” said Executive Director Liz Wagenseller. Informing citizens how to use the law reinforces an agency’s commitment to accountability.”

The OOR’s report, “2021 Agency Website Review,” summarizes the findings of OOR’s review of a sample of 135 state and local agencies’ websites. While 91 percent of agencies post something about the RTKL on their websites, the compliance for the four specific mandated pieces of information are not as universal:

  • 96 percent provide contact information for the agency open records officer;
  • 62 percent provide contact information for the Office of Open Records or other applicable appeals officer;
  • 81 percent provide a request form; and
  • 59 percent provide regulations, policies, and procedures of the agency relating to the RTKL.

Just 50 percent of agencies provide all of the first three[1] items.

“Meeting these requirements is simple and easy. If accountability is a priority, an agency will invite scrutiny, not avoid it,” said Wagenseller. “I hope that all agencies use this report to review their compliance and add the necessary information.”

As the report outlines, failing to provide accurate, comprehensive, and accessible RTKL information may lead to requester errors or an assumption that the agency is not subject to the law. The very basic first step in transparency is giving requesters the necessary tools and information needed.

The report outlines best practices beyond providing the statutorily required information. The OOR’s recommendations include:

  • Ensuring the information is simple to locate;
  • Providing electronic and printable request forms;
  • Including links to frequently requested items; and
  • Linking to a municipality’s RTKL information if a police department utilizes the municipality’s open records officer.

The report includes a sample RTKL webpage posting that can be found here. Review the report and learn more about the Office of Open Records at www.OpenRecords.pa.gov.

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[1] An agency is not required to have regulations, policies, and procedures relating to the RTKL, but must provide them if they do exist.

NEWS RELEASE: Office of Open Records Applauds New Law on Meeting Agendas

FOR IMMEDIATE RELEASE July 1, 2021  

Office of Open Records Applauds New Law on Meeting Agendas

HARRISBURG – Yesterday, the Governor signed SB554, sponsored by Senator Pat Stefano, which amends the Sunshine Act, or “Open Meetings Law,” to require state government agencies, local municipalities, and school districts to post an agenda online no later than 24 hours before the start of a public meeting.  

“The opportunity to review an agenda before a public meeting is a positive step towards increasing government accountability and citizen participation,” Office of Open Records Executive Director Liz Wagenseller said. “Access to timely and relevant information is crucial to promoting open and knowledgeable dialogue between citizens and government officials, and we look forward to the continued work of the legislature to improve government responsiveness and transparency.” 

Under the Right-to-Know Law, the OOR is required to offer training on the Sunshine Act.  The OOR will conduct a webinar on the Sunshine Act, including the newly enacted SB554, on July 14, 2021 at 10:00 a.m.  The webinar is free and can be accessed at www.openrecords.pa.gov.  

Media Contact: Liz Wagenseller, Executive Director, ewagensell@pa.gov  

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Presentation to PA State Association of Boroughs

Last week, I enjoyed presenting about the RTKL during the Pennsylvania State Association of Boroughs‘ conference. PSAB set up a great virtual format. I pre-recorded my presentation at a studio; that recording was played live for conference attendees while I answered questions in the chat that ran along the side of the video. An effective way for a professional looking presentation without sacrificing the ability to engage. (Though being forced to watch myself on camera made me realize how overdue I was for a hair cut).

You can download the PowerPoint below; I included some updates regarding recent court cases of interest and pending legislation.