Right-to-Know Law Roundtable – Sept. 5 in Harrisburg

Office of Open Records LogoThe Office of Open Records has put together an event we’re calling the Right-to-Know Law Rountable.

The RTKL Roundtable is the first event of its kind — a half-day session of panels and speakers filled with topics specifically of interest to people who use the RTKL as requesters. It’s taking place in Harrisburg on Sept. 5, 2019, starting at 1 p.m.

The lineup is packed with great speakers and moderators, including Judge Dominic Pileggi (author of the RTKL), attorneys whose practice includes RTKL work, journalists with great experience using the RTKL, and college professors.

Discussions will include:

  • Practical Tips for Writing an Effective RTKL Request
  • Enforcing OOR Final Determinations
  • Law Enforcement Records and the RTKL

The RTKL Roundtable is free and open to everyone. Although seating is necessarily limited, we are hoping to record the event and make it available online at a future date.

This program has been approved for 3 substantive CLE credits. It will be held at the office of the Pennsylvania NewsMedia Association, 3899 N. Front St., Harrisburg, PA 17110.

For the complete agenda, and to register, click here.

OOR Defends Constitutionality of the RTKL

Office of Open Records LogoAs a general rule, the Office of Open Records does not participate in any appeals beyond the OOR itself. Occasionally, however, we are compelled to.

In the case of Lehighton Area School District v. Campbell, stemming from OOR Dkt. No.: AP 2018-2187, the District’s trial brief included a claim that the Right-to-Know Law is unconstitutional.

Today, the OOR filed an Amicus Brief, arguing strongly in support of the RTKL’s constitutionality. (Judge Steven R. Serfass had previously issued an order allowing the OOR to file the brief.)

In its trial brief, the District wrote: “Is the Pennsylvania Right-to-Know Law unconstitutional as it is written and as it is applied. Suggested answer: Yes.”

The District and its solicitor argued that the RTKL is unconstitutional because the OOR declined to hold a hearing in this case, thus depriving the District of due process: “Under the statute, the District is not allowed to appeal the denial of a hearing, even if that denial results in an inadequate record, as was the case here.”

The OOR’s brief details the ways in which the RTKL specifically ensures due process, including the fact that both parties enjoy notice and an opportunity to be heard before the OOR and the fact that the trial court may choose to (as it did hear) hold a hearing to accept new evidence.

In this case, “1) the OOR specifically established a case management order advising the parties of their right to submit evidence and legal argument; 2) the District was given the time and was able to submit a privilege/exemption log identifying and explaining every redaction to the requested records; 3) the District was given the time and was able to submit the testimonial affidavits of nine (9) witnesses; and, 4) at no point during the appeal did the District request additional time from the OOR to make its evidentiary submissions.” (Emphasis in original.)

The OOR also wrote that the “District submitted conclusory affidavits to the OOR that simply failed to establish a nexus between the records requested and the exemptions cited. For reasons known only to itself and its solicitor, the District delayed submitting supporting evidence until the hearing before this Court. The same testimony that was given at the hearing could and should have been provided in affidavit form to the OOR.”

In a footnote the OOR added, “Over the five most recently completed calendar years, the OOR has docketed and adjudicated more than 11,000 appeals. Agencies of all sizes regularly submit evidence to the OOR far more complex than that offered by the District before the OOR and this Court. None, other than the District, has advanced a claim that the RTKL is unconstitutional.”

Here is the OOR’s complete Brief of Amicus Curiae.

Judge: Agency Had a “Mandatory Duty” to Preserve Records

Office of Open Records LogoJudge James A. Gibbons of Lackawanna County has ordered the City of Scranton to pay $3,484 in legal fees to the Scranton Times-Tribune, finding that the agency had not preserved records requested under the Right-to-Know Law.

The decision, which came after an appeal of the Office of Open Records’ final determination in Lockwood v. City of Scranton (OOR Dkt. No.: AP 2019-0279), was issued yesterday.

Judge Gibbons wrote:

“[T]he City of Scranton does not quarrel that it had a mandatory duty under the [RTKL] to preserve the videotape requested and it further acknowledges its failure to do so. While it may not have been intentional, we must bear in mind the remedial purpose behind the [RTKL], and if that purpose is to be promoted, there need be consequences, even for benign neglect. We will, therefore, award court costs and attorney’s fees to the Plaintiffs.”

Jim Lockwood, a reporter for the Times-Tribune, requested video from surveillance cameras in Scranton City Hall. The city denied the request, stating that the videos were exempt under Section 708(b)(16) of the RTKL, the criminal investigative exemption.

Lockwood appealed the denial to the OOR. During the course of the appeal before the OOR, the city did not present any evidence. The OOR held that the video must be released.

The lesson for agencies is simple: When a RTKL request is received, all potentially responsive records should be maintained throughout the entire RTKL process, including any and all appeals.

Presentation – RTKL Training for Requesters

Earlier today at the Office of Open Records in Harrisburg, I hosted a training session designed for requesters, including members of the media and members of the public.

The session focused on the Right-to-Know Law, and I appreciate everyone who attended.

Here’s the PowerPoint presentation I used:

RTKL Training for Requesters – July 24, 2019 – PDF
RTKL Training for Requesters – July 24, 2019 – PPTX

A similar session is scheduled to take place on October 10. Get the details and sign up here.

If you’re interested in training about the Right-to-Know Law and/or the Sunshine Act, please let us know.

Webinar – Basics for Agency Open Records Officers

Office of Open Records LogoThe Office of Open Records is hosting a webinar tomorrow (Tuesday, July 23) at 10:00 a.m. titled Basics for Agency Open Records Officers (AOROs).

This session focuses on what new AOROs need to know to respond accurately and efficiently to Right-to-Know Law requests, including agency obligations, prohibitions, deadlines, payment issues, and tips on managing an agency’s records.

The session will be hosted by George Spiess, the OOR’s Director of Training and Outreach. There will be plenty of time for questions from attendees.

More information and details on how to join the webinar are available via the OOR’s Training Calendar.

Pennsylvania’s Right-to-Know Law and Discovery

Office of Open Records LogoEarlier today, I was part of a panel discussion about the Right-to-Know Law as part of the Dauphin County Bar Association’s Bench Bar Conference.

The session was entitled The Right-to-Know Law: Its Use and Abuse as a Discovery Tool.

The discussion was moderated by Craig J. Staudenmaier of Nauman Smith Shissler & Hall. It also featured Judge Terrence Nealon of the Lackawanna County Court of Common Pleas; Thomas Howell, Deputy General Counsel in the Office of General Counsel; and Joshua D. Bonn of Nauman Smith Shissler & Hall.

It was a great panel and I appreciate being invited to take part.

Here’s the presentation I used:
Dauphin County Bar Association Bench Bar Conference – July 20, 2019 – PDF
Dauphin County Bar Association Bench Bar Conference – July 20, 2019 – PPTX

Presentation to District Attorneys

Office of Open Records LogoEarlier today, I spoke to a group of District Attorneys at a conference organized by the Pennsylvania State Association of Elected County Officials.

The conversation focused on the Right-to-Know Law and the unique role played by District Attorneys in terms of hearing appeals filed which are related to law enforcement records held by local agencies such as police departments. (Section 503(d)(2) of the RTKL.) It was a great conversation, and I appreciate the invitation.

Here’s the PowerPoint presentation I used:
District Attorneys – July 15, 2019 – PDF
District Attorneys – July 15, 2019 – PPTX