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.