Author: Liz Wagenseller

Presentation to Criminal Justice Advisory Committee

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Earlier today, I was pleased to speak to the Criminal Justice Advisory Committee, a committee under the Pennsylvania Commission on Crime and Delinquency, in Harrisburg.

The topic was video records such as bodycams and dashcams, how they’re currently handled under Pennsylvania’s Right-to-Know Law, pending legislation on the topic, and other related issues.

My thanks to the Chairman, Representative Mike Vereb, for inviting me to speak.

Here’s the presentation I used:

Criminal Justice Advisory Committee Presentation (PDF)
Criminal Justice Advisory Committee Presentation (PPTX)

Pennsylvania’s New Medical Marijuana Act

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by J. Chadwick Schnee
Assistant Chief Counsel

On April 17, 2016, Governor Wolf signed Senate Bill 3, prime-sponsored by Senator Mike Folmer and also known as the Medical Marijuana Act, into law as Act 16 of 2016. Although the connection between medical marijuana and the Right-to-Know Law may not be obvious, the Medical Marijuana Act contains several provisions involving public access to records related to medical marijuana.

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Open Data Initiative for Pennsylvania

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Yesterday, Governor Tom Wolf announced an open data initiative for Pennsylvania, something I’m very excited about. I’ll have more to say on this in the coming months, but for now here’s the Governor’s complete press release (and here’s a link to the Executive Order he signed).

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Governor Wolf Announces Open Data Initiative to Engage Citizens in Innovative Policy Solutions

April 19, 2016

Harrisburg, PA – Governor Wolf signed an executive order today to release agency data to the public in open, machine readable formats.

“One of our most valuable and underutilized resources in state government is data,” said Governor Wolf. “Our goal is to make data available in order to engage citizens, create economic opportunities for businesses and entrepreneurs, and develop innovative policy solutions that improve program delivery and streamline operations.”

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Public Employee Email Addresses

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A recent Commonwealth Court decision, Pennsylvania State System of Higher Education v. The Fairness Center, upheld a decision by the Office of Open Records that agency-issued e-mail addresses held out to the public must be released in response to a Right-to-Know request, but that any agency-issued e-mail addresses not held out to the public may be withheld.

In the unreported decision, the Court held that:

“On appeal, PASSHE argues that agency-issued e-mail addresses for its faculty and coaches are all personal and not subject to disclosure, regardless of whether those addresses are primary or secondary in nature. To the contrary, we conclude that the OOR correctly determined that the e-mail addresses at issue could be divided into two categories: those e-mail addresses that were not held out to the public or publically accessible and those that were held out to the public as places where faculty and coaches could be contacted.

“As OOR held and consistent with our case law applying the personal identification information exemption to agency-issued e-mail addresses, we agree with that differentiation and with OOR’s determination that the former type of e-mail addresses should be protected from disclosure and the latter should be subject to disclosure.”

Social Media and the RTKL

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Open records_logo stackedTo date, few appeals made to the Office of Open Records have involved social media. In one recent case, Davis v. City of Butler Police Department, the requester sought the following social media records (the request has been lightly edited for clarity):

  1. All posts made by users to the Butler City Police Department and Butler City K9 Fundraiser Facebook pages between Feb. 6, 2016, and Feb. 12, 2016.
  2. A list of all personnel who operate the Butler City Police Department Facebook page, including full name, salary, and date of hire.
  3. A list of all users who have been blocked from the Butler City Police Department Facebook page.

The OOR found that the Police Department demonstrated that no responsive records exist regarding the first item. During the appeal, the Department provided the requester with records responsive to the second item.

As to the third item, the OOR directed the Department to provide a screenshot of its Facebook page indicating whether any banned users were listed.

The Department provided the screenshots, but also said in its filing that “it is outside [the OOR’s] authority to direct [the Department] to compile records that are not maintained in the ordinary course of business.” See 65 P.S. § 67.705. The OOR held that the Department did not create or compile a record when it provided the OOR with the requested screenshot from its Facebook page; rather, it produced information from a database which was created by and is under the direct control of the Department.

I predicted in our 2015 Annual Report that the OOR will face more issues involving social media records. This case is a good example.

Testimony on Senate Bill 411

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This morning, the House State Government Committee, chaired by Rep. Daryl Metcalfe, held a public hearing on Senate Bill 411, which would amend the Right-to-Know Law.

I was honored to present testimony to the committee:

Others who testified or provided written testimony to the committee include:

  • ACLU of Pennsylvania
  • Bloomsburg University Foundation
  • Coalition for Sensible Public Records Access
  • Common Cause Pennsylvania
  • County Commissioners Association of Pennsylvania
  • East Stroudsburg University Foundation
  • Foundation for IUP
  • Lincoln University Parents Association
  • Lock Haven University Foundation
  • Pennsylvania Bar Association
  • Pennsylvania Foundations Association
  • Pennsylvania NewsMedia Association
  • Pennsylvania Prison Society
  • Pennsylvania School Boards Association
  • Pennsylvania State Association of Township Supervisors
  • Pennsylvania State Association of Boroughs
  • Pennsylvania State Education Association
  • Pennsylvania State System of Higher Education
  • Simon Campbell, Citizen Requester
  • State-Related Universities (Temple, Pitt, Penn State, and Lincoln)
  • Thomson Reuters
  • West Chester University Foundation

5 Top Appellate Court Decisions in 2015

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Every year, dozens of RTKL cases are decided by the Supreme Court, Commonwealth Court, and county Courts of Common Pleas.

Here, in no particular order, are five of the most significant decisions from 2015.

Pa. Dep’t of Education v. Pittsburgh Post-Gazette
119 A.3d 1121 (Pa. Commw. Ct. July 14, 2015)
When the specificity of a request is at issue, Commonwealth Court uses a three-part balancing test, “examining the extent to which the request sets forth (1) the subject matter of the request; (2) the scope of documents sought; and (3) the timeframe for which records are sought.”

Pa. Office of Attorney General v. Phila. Inquirer
127 A.3d 57 (Pa. Commw. Ct. Nov. 19, 2015)
The RTKL’s definitions of “record” and “public record” were examined. Commonwealth Court held that “[t]he fact that [emails] were sent, received or retained in violation of OAG policy does not transform what was not a public record into a public record under the RTKL. For emails to qualify as records ‘of’ an agency, we only look to see if the subject-matter of the records relate to the agency’s operations.”

Pa. Dep’t of Labor & Industry v. Earley
126 A.3d 355 (Pa. Commw. Ct. Sept. 9, 2015)
Regarding email records, Commonwealth Court held that “When an individual deletes an email from his or her email account … that does not mean that the email is necessarily deleted. Those emails remain on the mail server until they are deleted in accordance with a retention schedule. … [T]o establish that the email records do not exist, the Department must also establish that they no longer exist on the mail server.”

Pa. State Police v. Grove
119 A.3d 1102 (Pa. Commw. Ct. July 7, 2015)
Video recordings made by police car dashcams (a.k.a. mobile video recordings, or MVRs) are not inherently investigative records, although they may include investigative information which needs to be redacted: “The mere fact that a record has some connection to a criminal proceeding does not automatically exempt it under Section 708(b)(16) of the RTKL or CHRIA. … PSP is entitled to redact the portions of MVRs that contain actual investigative information … but may not withhold an entire MVR on the basis that part of it is investigative.” (NOTE: This case is now pending in the Supreme Court.)

Pa. State Police v. Muller
124 A.3d 761 (Pa. Commw. Ct. June 30, 2015)
Reinforcing the need for agencies to provide evidence when a case is before the OOR, Commonwealth Court held that “[a]n agency is not entitled to ignore its burden to show an exemption from disclosure before OOR and rely on supplementation of the record in this Court to avoid the consequences of that conduct.”

Other significant cases from 2015 — and previous years — are available on the OOR website.