Court Filings Update – New Email Newsletter

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I’m exited to announce that the Office of Open Records will soon start sending a new email newsletter called Court Filings Update — and you you can sign up for it now.

The newsletter will be sent regularly, generally multiple times each week, and it will include information about appeals and associated documents filed in the Courts of Common Pleas, the Commonwealth Court, and the Pennsylvania Supreme Court.

We expect to send the first Court Filings Update newsletter by the end of March, hopefully sooner.

The Court Filings Update newsletter will be sent separately from the OOR’s Daily Final Determinations Update (which lists and links to recent Final Determination issued by the OOR) and the OOR’s general email newsletter.

You can manage your subscriptions to all three newsletters here.

Court Orders Sunshine Act Training

Open records_logo stackedThe Court of Common Pleas in Westmoreland County recently ordered officials from the City of Monessen to attend Sunshine Act training provided by the Office of Open Records.

In the opinion and order, Judge Harry F. Smail, Jr., discussed a public meeting held by the City at which “there was absolutely no opportunity for public comment on the motions to fire the city solicitor, to hire the new city solicitor, to terminate the city administrator, to hire the new city administrator, to restrict access to city cameras, to rescind a Sewage Authority Board appointment and to advertise for the vacancy on the Sewage Authority Board.”

Those actions, Judge Smail said, “are facially apparent violations of Section 710.1(a) of the Sunshine Act.”

As a result, Judge Smail ordered — and we believe this is a first-of-its-kind order in Pennsylvania — that “Defendants Councilmembers of the City of Monessen and Defendant Mayor Matt Shorraw … attend a Sunshine Act training through the Pennsylvania Office of Open Records, to be scheduled … within thirty (30) days of the date of this Order of Court.”

The order was dated Dec. 11, and the OOR has been contacted by the City of Monessen to schedule the mandatory training session.

If you’d like to schedule training with the OOR, mandatory or otherwise, take a look at our training calendar and then contact us. We provide training on the Sunshine Act and the Right-to-Know Law.

Agencies Should Provide Evidence to the OOR

Office of Open Records LogoThe Commonwealth Court has consistently frowned on agencies trying to submit new evidence (i.e., evidence not provided to the Office of Open Records) during a Right-to-Know Law appeal.

As a general rule, Courts of Common Pleas have been more accepting of that practice. However, Courts of Common Pleas are not required to accept such evidence. In one recent case (OOR Dkt. No.: AP 2019-1228), Judge Richard K. Renn of York County included some commentary about the practice in his order.

Judge Renn wrote: “[W]e have noticed a disturbing trend in recent cases involving [York] County that the County submits additional materials to this Court for consideration during the review de novo process which it did not make available to the OOR. The Commonwealth Court recently commented on this practice, noting that ‘[l]ack 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.’ Mission Pa., LLC v. McKelvey, 212 A.3d 119 (Pa. 2019).”

After further quoting from McKelvey, Judge Renn continued: “Indeed, one might conclude that the County was ‘sandbagging’ the OOR appeal process since no explanation was given for the recent submission of the [new evidence]. … We are not prepared at this time to draw that conclusion in the context of this case.”

I think Judge Renn’s point is crystal clear (and 100 percent correct): Absent some extremely unusual circumstance, agencies should submit all of the evidence they have in a RTKL case while that case is being heard by the Office of Open Records. In fact, the OOR regularly extends submission deadlines (and sometimes ask requesters to grant an extension of time to consider the case) to ensure that the record is fully developed before a final determination is issued.

Judge Renn’s complete order is here.

The Commonwealth Court decision in Mission Pa., LLC v. McKelvey is here.

OOR Defends Constitutionality of the RTKL

Office of Open Records LogoAs a general rule, the Office of Open Records does not participate in any appeals beyond the OOR itself. Occasionally, however, we are compelled to.

In the case of Lehighton Area School District v. Campbell, stemming from OOR Dkt. No.: AP 2018-2187, the District’s trial brief included a claim that the Right-to-Know Law is unconstitutional.

Today, the OOR filed an Amicus Brief, arguing strongly in support of the RTKL’s constitutionality. (Judge Steven R. Serfass had previously issued an order allowing the OOR to file the brief.)

In its trial brief, the District wrote: “Is the Pennsylvania Right-to-Know Law unconstitutional as it is written and as it is applied. Suggested answer: Yes.”

The District and its solicitor argued that the RTKL is unconstitutional because the OOR declined to hold a hearing in this case, thus depriving the District of due process: “Under the statute, the District is not allowed to appeal the denial of a hearing, even if that denial results in an inadequate record, as was the case here.”

The OOR’s brief details the ways in which the RTKL specifically ensures due process, including the fact that both parties enjoy notice and an opportunity to be heard before the OOR and the fact that the trial court may choose to (as it did hear) hold a hearing to accept new evidence.

In this case, “1) the OOR specifically established a case management order advising the parties of their right to submit evidence and legal argument; 2) the District was given the time and was able to submit a privilege/exemption log identifying and explaining every redaction to the requested records; 3) the District was given the time and was able to submit the testimonial affidavits of nine (9) witnesses; and, 4) at no point during the appeal did the District request additional time from the OOR to make its evidentiary submissions.” (Emphasis in original.)

The OOR also wrote that the “District submitted conclusory affidavits to the OOR that simply failed to establish a nexus between the records requested and the exemptions cited. For reasons known only to itself and its solicitor, the District delayed submitting supporting evidence until the hearing before this Court. The same testimony that was given at the hearing could and should have been provided in affidavit form to the OOR.”

In a footnote the OOR added, “Over the five most recently completed calendar years, the OOR has docketed and adjudicated more than 11,000 appeals. Agencies of all sizes regularly submit evidence to the OOR far more complex than that offered by the District before the OOR and this Court. None, other than the District, has advanced a claim that the RTKL is unconstitutional.”

Here is the OOR’s complete Brief of Amicus Curiae.

Judge: Agency Had a “Mandatory Duty” to Preserve Records

Office of Open Records LogoJudge James A. Gibbons of Lackawanna County has ordered the City of Scranton to pay $3,484 in legal fees to the Scranton Times-Tribune, finding that the agency had not preserved records requested under the Right-to-Know Law.

The decision, which came after an appeal of the Office of Open Records’ final determination in Lockwood v. City of Scranton (OOR Dkt. No.: AP 2019-0279), was issued yesterday.

Judge Gibbons wrote:

“[T]he City of Scranton does not quarrel that it had a mandatory duty under the [RTKL] to preserve the videotape requested and it further acknowledges its failure to do so. While it may not have been intentional, we must bear in mind the remedial purpose behind the [RTKL], and if that purpose is to be promoted, there need be consequences, even for benign neglect. We will, therefore, award court costs and attorney’s fees to the Plaintiffs.”

Jim Lockwood, a reporter for the Times-Tribune, requested video from surveillance cameras in Scranton City Hall. The city denied the request, stating that the videos were exempt under Section 708(b)(16) of the RTKL, the criminal investigative exemption.

Lockwood appealed the denial to the OOR. During the course of the appeal before the OOR, the city did not present any evidence. The OOR held that the video must be released.

The lesson for agencies is simple: When a RTKL request is received, all potentially responsive records should be maintained throughout the entire RTKL process, including any and all appeals.

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.

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.

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.

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.

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.