Article for Pennsylvania County News

The County Commissioners Association of Pennsylvania recently asked me to contribute an article to the Fall 2019 issue of Pennsylvania County News, which I was happy to do.

Here’s the complete text of that article.

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Balancing the public’s right to know with confidentiality laws and privacy interests

Pennsylvania’s Right-to-Know Law (RTKL) presumes that all government records are available to the public – but it also recognizes that there are times records must be shielded to comply with confidentiality laws, to respect various privileges, and to protect legitimate privacy interests.

In our training sessions, the Office of Open Records (OOR) often points out that the RTKL is not itself a confidentiality law. In other words, the RTKL does not require agencies to withhold any records. Instead, it allows agencies to withhold records when certain conditions apply. (For example, records can be withheld if their disclosure would endanger public safety, reveal police notes about an investigation, or identify an individual receiving social services.)

But there are laws which require confidentiality, and those laws must be followed.
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Presentation for Media & Citizen Requesters

Later this morning at the Office of Open Records in Harrisburg, I’ll lead a training session about Pennsylvania’s Right-to-Know Law. This session is designed especially for members of the media and members of the public interested in using the RTKL to request government records.

Here’s the PowerPoint presentation I’ll use:

Media & Requester Training – Oct. 10, 2019 (PPTX)
Media & Requester Training – Oct. 10, 2019 (PDF)

If you’re interested in training about the Right-to-Know Law and/or the Sunshine Act (for agencies or requesters), please let us know.

Right-to-Know Law Roundtable – Complete Video

Office of Open Records LogoEarlier this month, the Office of Open Records hosted the first-ever Right-to-Know Law Roundtable, an event designed to help requesters better understand Pennsylvania’s Right-to-Know Law.

PCN was on hand to record the Roundtable, which I very much appreciate, and we’re able to present the following videos which cover the entire event.

The first video features the opening speaker, Judge Dominic F. Pileggi, a former state senator and author of the Right-to-Know Law, along with a discussion on the topic Practical Tips for Writing an Effective RTKL Request moderated by Angela Couloumbis (Philadelphia Inquirer) with panelists Melissa Melewsky, Esq. (Pennsylvania NewsMedia Association), Jan Murphy (Pennlive), and Megan Shannon, Esq. (Offit Kurman).

The second video features a discussion on the topic Enforcing Office of Open Records Final Determinations moderated by Joyce Davis (Pennlive) with panelists Adrienne Langer, Esq. (Cusick, DeCaro & Langer), Terry Mutchler, Esq. (Mutchler Lyons), and Thea Paolini, Esq., MBA (Nauman, Smith, Shissler & Hall).

The third video features a discussion on the topic Law Enforcement Records and the Right-to-Know Law moderated by Cindy Simmons (Pennsylvania State University) with panelists Paula Knudsen, Esq. (The Caucus), William Rozier (Pennsylvania State Police), and Liz Evans Scolforo (York Dispatch).

The fourth (and final) video features a one-on-one discussion between Jaime Fettrow-Alderfer (Lebanon Valley College) and Liz Navratil (Spotlight PA) about Using the Right-to-Know Law in Reporting.

We hope to organize more events like the RTKL Roundtable in the future. Please contact us if you have any comments or suggestions. And don’t forget to check our training calendar for all of our upcoming events.

Right-to-Know Law Roundtable – Sept. 5 in Harrisburg

Office of Open Records LogoThe Office of Open Records has put together an event we’re calling the Right-to-Know Law Rountable.

The RTKL Roundtable is the first event of its kind — a half-day session of panels and speakers filled with topics specifically of interest to people who use the RTKL as requesters. It’s taking place in Harrisburg on Sept. 5, 2019, starting at 1 p.m.

The lineup is packed with great speakers and moderators, including Judge Dominic Pileggi (author of the RTKL), attorneys whose practice includes RTKL work, journalists with great experience using the RTKL, and college professors.

Discussions will include:

  • Practical Tips for Writing an Effective RTKL Request
  • Enforcing OOR Final Determinations
  • Law Enforcement Records and the RTKL

The RTKL Roundtable is free and open to everyone. Although seating is necessarily limited, we are hoping to record the event and make it available online at a future date.

This program has been approved for 3 substantive CLE credits. It will be held at the office of the Pennsylvania NewsMedia Association, 3899 N. Front St., Harrisburg, PA 17110.

For the complete agenda, and to register, click 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.

Presentation – RTKL Training for Requesters

Earlier today at the Office of Open Records in Harrisburg, I hosted a training session designed for requesters, including members of the media and members of the public.

The session focused on the Right-to-Know Law, and I appreciate everyone who attended.

Here’s the PowerPoint presentation I used:

RTKL Training for Requesters – July 24, 2019 – PDF
RTKL Training for Requesters – July 24, 2019 – PPTX

A similar session is scheduled to take place on October 10. Get the details and sign up here.

If you’re interested in training about the Right-to-Know Law and/or the Sunshine Act, please let us know.