Recent Court and OOR Decisions of Note

This morning, the Office of Open Records is hosting a webinar focusing on recent court and OOR decisions under the Right-to-Know Law and the Sunshine Act.

Here’s the PowerPoint presentation that our Chief Counsel, Charles Brown, prepared for this session:

Recent Court and OOR Decisions of Note – March 14, 2019 – PDF
Recent Court and OOR Decisions of Note – March 14, 2019 – PPTX

The OOR regularly provides training on Pennsylvania’s Right-to-Know Law and Sunshine Act. Our training calendar is available here, and we always welcome requests to provide training.

This is Sunshine Week 2019, and we’re hosting a series of webinars. I hope you can join us for some or all of them!

Commonwealth Court Upholds OOR Power of In Camera Review

Office of Open Records LogoCommonwealth Court issued a strong ruling yesterday upholding the ability of the Office of Open Records to conduct in camera review of records sua sponte (on its own motion). Berks County had argued that the OOR had no such power.

(In camera review means that the agency provides the relevant records to the OOR, where they are reviewed by the OOR before a Final Determination is issued.)

The Court held:

“It is well established that OOR and its appeals officers have authority to order and undertake in camera review of documents that have been withheld or redacted where, in the appeals officers’ judgment, in camera review is necessary to develop an adequate record to rule on the agency’s claims of privilege or exemption. …

“The County argues that this authority is limited to cases where one of the parties has requested in camera review or this Court has ordered OOR to conduct an in camera review on remand. We do not agree.”

The Court continued:

“[T]his Court has repeatedly reaffirmed OOR’s authority to order in camera review without imposing any requirement of a party request.”

In analyzing the position advanced by Berks County, the court said:

“[I]f it were held that OOR has no power to order in camera review sua sponte, OOR would be forced, in situations where no party makes a request, to either hold an unnecessary hearing or default on its obligation to develop an adequate record, requiring the courts to conduct additional fact-finding or remand to OOR for in camera review. The only effect would be to require unnecessary delay and inefficiency in the review and appeals process with no actual difference in whether in camera review is conducted.”

The ruling also contains an excellent summary of why in camera review can be a remarkably useful tool for deciding Right-to-Know Law appeals:

In camera review can be of critical importance in determining whether documents requested under the RTKL are protected by privilege and may sometimes be the only means by which an appeals officer and the courts can adjudicate a privilege claim on an adequate record.”

Two Agencies Ordered to Pay Legal Fees to Requesters

Office of Open Records LogoThis year, at least two Pennsylvania courts have ordered government agencies to pay a requester’s legal fees after the agency was found to have been acting in bad faith under the Right-to-Know Law.

The first case (OOR Docket 2017-0994) began with a March 2017 request for records relating to a waste water plant construction project in Reading. After the city invoked a 30-day extension to respond, the request was deemed denied. The requester appealed to the Office of Open Records. The city, which bears the burden of proof under the RTKL, did not make any submissions during the appeal.

In a subsequent appeal also involving Reading (OOR Docket 2018-0244), the OOR found that, “Since January 2017, the OOR has granted eleven other appeals wherein the City invoked a thirty-day extension but ultimately did not respond to the Request or participate on appeal. … [T]he City has repeatedly ignored requests for records and not participated before the OOR. Based on the City’s failure to comply with its statutorily mandated duties under the RTKL, the OOR finds that the City acted in bad faith in the present matter by engaging in the same conduct.”

In August 2018, Judge James M. Lillis of the Berks County Court of Common Pleas ordered the city to pay $12,071.75 in legal fees to the requester.

The second case (OOR Docket 2014-1695) began with a 2014 request for records related to illnesses contracted by inmates and staff members at the state prison in Fayette.

In March 2018, Judge Robert Simpson of the Commonwealth Court ruled that “some of [the Department of Corrections’] noncompliance [with an OOR order] constitutes bad faith that merits statutory sanctions.”

In October 2018, Judge Simpson ordered DOC to pay $118,458.37 in legal fees to the requester.

Social Media and Pennsylvania’s Right-to-Know Law

Open records_logo stackedAs agencies across Pennsylvania use social media more often to communicate with residents, Right-to-Know Law (RTKL) requests for records related to social media are becoming more common.

Determining whether information related to social media — including social media posts, direct messages sent via social media, and other types of information — qualifies as a “record” or a “public record” under the RTKL is no different than determining whether an email, a memo, or a map is a “record” or a “public record.”

First, agencies should determine whether a request is seeking a record, defined as “information … that documents a transaction or activity of an agency…”

If the request is seeking a record, agencies should determine whether it is a public record, defined as “A record, including a financial record, … that (1) is not exempt under Section 708, (2) is not exempt … under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.”

Examining some decisions from the Office of Open Records (OOR) and the Commonwealth Court may be useful. Here’s a look at several of the most significant decisions involving social media.

Boyer v. Wyoming Borough (OOR Dkt. No.: AP 2018-1110)

The request sought records related to the mayor’s Facebook page, including a list of page administrators and editors and all comments made and removed or blocked from the page.

Continue reading

Three Recent Home Address Cases

Open records_logo stackedLast month, the Pennsylvania Supreme Court issued one decision and the Commonwealth Court issued two decisions addressing issues related to home addresses, the Right-to-Know Law, and the right to privacy found in Article I, Section 1, of the Pennsylvania Constitution.

In chronological order, the decisions are:

Butler Area School District v. Pennsylvanians for Union Reform (Commonwealth Court, November 2, 2017)

Chester Housing Authority v. Polaha (Commonwealth Court, November 21, 2017)

Reese v. Pennsylvanians for Union Reform (Supreme Court, November 22, 2017: majority opinion, concurring opinion)

7 Top Appellate Court Decisions in 2016

These are some of the most significant appellate court decisions issued in 2016 regarding Pennsylvania’s Right-to-Know Law.

PSEA v. OOR
148 A.3d 142 (Pa. 2016)

The Pennsylvania Supreme Court held that Article I, Section 1, of the state constitution protects personal information such as home addresses. When a record contains such personal information, a balancing test must be performed to determine whether the interest in disclosure outweighs the interest in privacy.

Commonwealth v. Engelkemier
148 A.3d 522 (Pa. Cmwlth. 2016)

On the issue of specificity, the Commonwealth Court affirmed an OOR Final Determination which held that a keyword list can be sufficient to describe the subject matter in a RTK request, depending on the overall context of the request. The court emphasized the three-part test used to determine whether a request is specific enough under the RTKL, examining the extent to which the request sets forth (1) the subject matter, (2) the scope of documents, and (3) the timeframe.

PASSHE v. APSCUF
142 A.3d 1023 (Pa. Cmwlth. 2016)

The Commonwealth Court held that in cases involving voluminous records, the OOR may consider a claim by an agency that it cannot conduct a proper review of the responsive records within the RTKL’s timeline. The agency must provide an estimated number of records and the length of time required to review the records, along with — if the records are electronic — any anticipated difficulty in delivering them.

PUC v. Seder
139 A.3d 165 (Pa. 2016)

The Supreme Court upheld the OOR’s analysis of the Public Utility Code regarding the required disclosure of a “tip letter” and an investigative file associated with a settlement agreement.

Township of Worchester v. OOR
129 A.3d 44 (Pa. Cmwlth. 2016)

The Commonwealth Court held that the OOR, which serves as fact-finder in RTKL appeals, has broad discretion to order in camera review of records.

Grine v. County of Centre
138 A.3d 88 (Pa. Cmwlth. 2016)

The Commonwealth Court found that when financial records of a judicial agency documenting activities of judicial personnel are in the possession of, or shared by, a non-judicial agency, those records must nonetheless be requested from the judicial agency “to ensure the judiciary retains control of its records.”

In re Phila. Dist. Attorney’s Office
2016 Phila. Ct. Com. Pl. LEXIS 55

The Philadelphia Court of Common Pleas found that the Philadelphia District Attorney’s Office acted in bad faith when it did not provide records as ordered by the OOR. The court imposed a $500 penalty. Note: The Commonwealth Court upheld this ruling in early 2017, stating that “the Trial Court made the requisite factual findings, supported by substantial record evidence, to conclude as a matter of law that the District Attorney acted in bad faith.”

Other significant cases from 2016 — and previous years — are available on the OOR website.

Supreme Court Ruling in PSEA Case

The Pennsylvania Supreme Court has issued a ruling in PSEA v. Commonwealth of Pennsylvania, a case involving the home addresses of public school employees.

The opinion was authored by Justice Donohue and joined by Chief Justice Saylor and Justices Baer, Todd and Dougherty. Justice Wecht filed a concurring opinion. Both are available here:

PSEA v. Commonwealth of Pennsylvania – Majority Opinion – Oct. 18, 2016 – PDF

PSEA v. Commonwealth of Pennsylvania – Concurring Opinion – Oct. 18, 2016 – PDF

The case has been “remanded to the Commonwealth Court for further proceedings consistent with this decision.”