Corporations Not “Individuals” Under RTKL

Office of Open Records LogoThe Commonwealth Court recently upheld an Office of Open Records decision finding that corporations are not “individuals” under the Right-to-Know Law exception allowing agencies to withhold donor identities (Section 708(b)(13)).

The specific case at issue involved California University of Pennsylvania and a request for records related to donations from Manheim Corporation to the Foundation for Cal U.

Here’s the Commonwealth Court decision, here’s the OOR decision from October 2018, and here’s the OOR docket sheet.

Commonwealth Court: Present All Evidence to the OOR

Office of Open Records LogoIn a ruling earlier this week, the Commonwealth Court made it clear to agencies subject to Pennsylvania’s Right-to-Know Law that when an appeal is filed with the Office of Open Records, the agency should present all of its evidence to the OOR.

The case, Pennsylvania Department of Health et al v. Wallace McKelvey and PennLive, focused on applications submitted to DOH under Pennsylvania’s medical marijuana law. (Here’s the complete OOR docket.)

DOH and the companies which submitted the applications asked the Court to allow them to supplement the record with additional information which was not presented to the OOR. The Court denied the request:

“To the extent the record developed before OOR is inadequate, DOH and Permittees are at fault for that inadequacy. Lack of evidence, when the parties and participants had a full opportunity to submit evidence to the fact-finder, is not a valid reason for supplementing the record.”

Using logic that could also be adopted by Courts of Common Pleas, the Court said:

“Moreover, allowing additional evidence at the judicial review stage has implications beyond the present matter. To ensure the RTKL offers an expedient means of access to public records, parties withholding information must be held to their burden of proof. Accepting additional evidence without cause essentially allows agencies to withhold records without legal grounds until reaching a Chapter 13 court, undermining the presumption of openness that forms the foundation of the current RTKL.”

In the decision’s conclusion, the Court wrote:

“OOR afforded extraordinary due process to DOH and Permittees, including multiple opportunities to submit evidence supporting their redactions. DOH and Mission offer no reason for not submitting the evidence they want to submit to this Court during that process. Therefore, we deny their applications for relief seeking to supplement the record.”

On an unrelated point in the same decision, the Court explicitly held that “corporate information is not protected under an individual’s right to privacy” under the state constitution.

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)