Commonwealth Court Weighs in on Large RTKL Requests

Open records_logo stackedThis week, Commonwealth Court issued a ruling in Pennsylvania State System of Higher Education (SSHE) v. Association of Pennsylvania State College and University Faculties (APSCUF).

One of the issues was whether or not the original Right-to-Know Law request submitted by APSCUF to SSHE was specific enough under Section 703 of the RTKL. On that issue, the court upheld the OOR’s finding that the request was specific.

The court then discussed SSHE’s position that, because the request was for such a large volume of records, it couldn’t have responded within the time period established by the RTKL. (SSHE “contends that it was incapable of reasonably discerning whether any exemptions applied to this matter because it neither had the time nor resources to fully review the sizeable volume of records produced by Requesters’ requests in the time-period it was given to do so.”)

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Public Employee Email Addresses

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.”

5 Top Appellate Court Decisions in 2015

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.

OOR’s In Camera Power Upheld

In Township of Worcester v. Office of Open Records and James Mollick, the Commonwealth Court has reaffirmed that the OOR’s Appeals Officers — the attorneys who review appeals under the Right-to-Know Law and issue Final Determinations — have the authority to order in camera review of records and to require the creation of a privilege log.

(In camera is a Latin term which means “in chambers.” In other words, when the OOR orders in camera review of records, the records themselves are provided for the OOR’s private review to help ensure a complete and accurate Final Determination.)

In this case, the OOR had directed the Township of Worcester to produce, for in camera inspection, copies of records the Township withheld in response to Mollick’s Right-to-Know request, along with an in camera inspection index. The Montgomery County Court of Common Pleas reversed the OOR order, but last week’s Commonwealth Court ruling overturns the lower court decision and reinstates the OOR order.

The Commonwealth Court, in an opinion authored by Judge Robert Simpson, held that:

“One of an appeals officer’s duties under Chapter 11 of the RTKL is to develop an adequate factual record on appeal. … An appeals officer functions as the initial fact-finder, and acts in a quasi-judicial capacity pursuant to Section 1102 of the RTKL. … In these circumstances, it is incumbent upon an appeals officer to create an adequate factual record in order to issue a determination. … Thus, appeals officers are empowered to develop the record to ensure Chapter 13 courts may perform appellate review without the necessity of performing their own fact-finding. … Thus, in camera review is appropriate to assess claims of privilege and predecisional deliberations. Additionally, review of an index or ‘privilege log’ of withheld records may be proper in determining whether records are exempt from disclosure.”

The court also said that it defers to the OOR’s Appeals Officers on this procedural issue “to adequately develop a record beyond the intertwined assertions of fact and law.”

Regarding potential future appeals of in camera orders issued by the OOR, the ruling said this:

“Having now confirmed the law in this area, it is hard to imagine any significant public policy interest supporting judicial review of non-final OOR orders which seek to create an adequate record. In other words, it would be a very rare case which would support interlocutory review of an OOR order similar to the one here.”

The court also reaffirmed the holding that “conclusory affidavits, standing alone, are insufficient to prove records are exempt” from disclosure under the RTKL.

Fewer than 10% of OOR Decisions Get Appealed

A conversation on Twitter earlier today caused me to investigate (more accurately, caused me to ask someone in the office to investigate) how many Final Determinations issued by the Office of Open Records have been appealed to court.

OOR decisions involving state agencies can be appealed to Commonwealth Court. According to our figures, that’s happened 604 times since the law went into effect on Jan. 1, 2009.

OOR decisions involving local agencies can be appealed to the county Court of Common Pleas. Our figures indicate that’s happened 519 times.

As of today, the OOR has decided more than 13,000 appeals.

Thus, approximately 8.6 percent (1,123 out of 13,000) of the OOR’s decisions have been appealed to court.

Note: The numbers above are accurate to the best of our knowledge. Under the Right-to-Know Law, the OOR should be notified of any court appeal, but there have been instances where that hasn’t happened.

Commonwealth Court Ruling on Copyright Act

How Pennsylvania’s Right-to-Know Law intersects with the federal Copyright Act was at the center of a case decided by Commonwealth Court earlier today.

In Jihad Ali v. Philadelphia City Planning Commission, the court held that the Copyright Act does not prevent disclosure of public records:

“Based on our review of the Copyright Act and our precedent, we conclude that Copyright Act is not a federal law that exempts materials from disclosure under the RTKL. It neither expressly makes copyrighted material private or confidential, nor does it expressly preclude a government agency, lawfully in possession of the copyrighted material, from disclosing that material to the public.”

The ruling also holds that while duplication of copyrighted public records may be limited by the federal Copyright Act, inspection of those records is not limited:

“The Copyright Act limits the level of access to a public record only with respect to duplication, not inspection. The public record must, therefore, still be made available for inspection under the RTKL, allowing the public to scrutinize a local agency’s reliance on or consideration of the copyrighted material.”

2nd Commonwealth Court Decision on MVRs

Commonwealth Court has again ruled that mobile video recordings (MVRs), such as dashcam videos, are public records.

In the new case, Pennsylvania State Police v. Casey Grove, the court upheld an Office of Open Records decision and found that the case “is virtually indistinguishable” from the first (PSP v. Michelle Grove, which I wrote about here).

PSP has appealed the first case to the Supreme Court, which has not yet decided whether to hear the appeal.

Commonwealth Court: MVR Videos Are Public

Commonwealth Court today issued an opinion (Pennsylvania State Police v. Michelle Grove) holding that “video recordings of interaction between law enforcement officers and members of the public in a public place” are not exempt from disclosure and, thus, are public records under the Right-to-Know Law. Such recordings are commonly referred to as dash cam videos or MVRs (“mobile vehicle recordings”).

Senior Judge James Gardner Colins authored the opinion, which held that “as documentation of law enforcement officers’ conduct in carrying out their duties, MVRs are at the core [of] the RTKL’s purpose of enabling the public to ‘scrutinize the actions of public officials, and make public officials accountable for their actions'” (quoting Pennsylvania State Police v. McGill, 83 A.3d at 479).

The case was remanded to the Office of Open Records for further review related to the audio component of one of the videos and Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, aka the Wiretap Act.

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