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.

###


[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  

###  

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.

Regulations have left the building.

The OOR is thrilled to announce that earlier this week, it took its first formal step in the regulation promulgation process. Regulations will provide greater clarity of the requirements of both the agencies and the requestors during the RTKL appeal process. The Office of the Budget received the proposed regulations and will commence their review; eventually, there will be a period for public comment. Read all about it here.

Review of RTKL Request Webpages

Holding government accountable via record access is not possible if the public is not well informed about how to request such information. 

The OOR is conducting a review of how agencies post Right-to-Know Law (RTKL) information on their websites. Specifically, the review will look at how an agency provides instructions to request information by reviewing a sampling of webpages of Commonwealth and local agencies including school districts, municipalities, police departments, State System universities, community colleges, and authorities.

The review will also consider clarity and accuracy of language, as well as ease of locating how to request information. This includes noting any out-of-date information about how COVID mitigations are affecting RTKL requests.

Have you come across an agency whose RTKL webpage is confusing or difficult to locate? Or conversely, do you have a webpage that you could cite as a good example? If so, please email ra-dcoorfile@pa.gov by May 7.

We will publish our final report by early summer.

OOR’s 2020 Annual Report

The 2020 Annual Report is now posted.

Some highlights:

  • 2020 ranks as the second-busiest year ever for the OOR, with 2,764 appeals filed.
  • Breakdown of who filed appeals in 2020:
    • 43% citizens
    • 37% companies
    • 11% inmates
    • 5% media
    • 2% government officials
    • 1% lawmakers
  • 547 appeals involving state agencies; Department of Corrections tops the list at 115 appeals filed.
  • Significant increases in the number of appeals filed involving the Department of Health, State Police, Department of Human Services, and Department of Community and Economic Development.
  • 90 mediations and 70 training sessions conducted by the OOR.