Federal Court Decision (FOIA) on Information in Databases

Open records_logo stackedEarlier this month, the United States Court of Appeals for the Ninth Circuit published an interesting decision related to accessing information in government databases.

The decision, in the case of The Center for Investigative Reporting v. United State Department of Justice, held that “the use of a query to search for and extract a particular arrangement or subset of existing data from the [Firearms Tracing System] database [maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives] does not require the creation of a ‘new’ agency record under [the federal Freedom of Information Act].”

The court’s decision contains a lot of good discussion about this important issue, mostly starting on page 37, such as: “[I]f running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA.”

Importantly, the decision is in line with existing Pennsylvania case law regarding the Right-to-Know Law.

For example, in Gingrich v. Game Commission, the Commonwealth Court held: “Providing data from an agency database does not constitute creating a record.” And in Department of Environmental Protection v. Cole, the Commonwealth Court held: “An agency can be required to draw information from a database.”

In our training sessions for requesters, the Office of Open Records often discusses this issue. You can find more about the RTKL and information in government databases on slides 29 to 32 of this presentation, and you can listen to me discuss the issue here.

Providing Minutes, Agendas & Other Basic Records

Open records_logo stackedDuring the Office of Open Records’ training sessions, we often get a question along these lines:

Does an agency have to require a Right-to-Know request before releasing records?

Our answer is unequivocal: No. Records can be provided informally.

In fact, it often makes better sense for an agency to release records informally rather than requiring an official RTK request.

A few examples:

  • Meeting minutes: These are among the most basic of records and should be easily available. If an agency has a website, minutes should be posted online. That reduces work for the agency and makes this basic information easily available to the public.
  • Meeting agendas: Many agencies post meeting agendas online prior to meetings, and the OOR strongly encourages this. Again, it saves the agency work and makes important information easily available to the public. (Legislation to require this passed the House in the 2019-20 legislative session and will likely be reintroduced in the 2021-22 session.)
  • Board packets: The information provided to board members (e.g., county commissioners, members of a school board, borough council, etc.) to refer to at a public meeting is usually public. On occasion, some of the information may be able to be withheld under the RTKL. But having copies of the public information in the packets available to the public — online, if possible — before a meeting starts is strongly encouraged.
  • Annual budgets: The budget process is one of the most important any agency goes through every year and financial records are the most public of all records under the RTKL.

Even if an agency doesn’t post these records online, they can be provided to a requester without requiring a formal RTK request. Forcing every request for information, no matter how simple, into the RTKL process generates unnecessary work for agencies and slows down the process of getting that information to the public.

As agencies continue to hold meetings virtually (or a combination of virtual and in person) during the COVID-19 pandemic, considering steps like these is even more important. It’s challenging enough for the public to follow agency business during normal meetings; that challenge is only increased when the meeting is held online.

The Office of Open Records welcomes and encourages questions from agencies and requesters alike. The best way to contact us is to use the contact form on our website.

RTKL Fee Schedule Updated

Open records_logo stackedSection 1307 of the Right-To-Know Law requires the Office of Open Records to establish a fee schedule for Commonwealth agencies and local agencies.

Section 1310 of the RTKL requires the OOR to review that fee schedule every other year. Duplication fees charged under the RTKL must be reasonable and based on “prevailing fees for comparable duplication services provided by local business entities.”

Today, the OOR updated the Official RTKL Fee Schedule. (It was last updated on Oct. 15, 2018.)

Prior to publishing this update, the OOR solicited comments. The OOR received 27 comments. The OOR also gathered pricing information from a sampling of local businesses that provide duplication services across the Commonwealth and reviewed other relevant pricing information.

The OOR made the following changes to the Official Fee Schedule:

  • Maintained the allowable charge for black and white copies at “up to $0.25 per copy” for the first 1,000 copies but reduced it to “up to $0.20 per copy” for any copies beyond that.
  • Reduced the allowable charge for a CD or DVD from “up to actual cost, not to exceed $3.00 per disc” to “up to actual cost, not to exceed $1.00 per disc.”
  • Clarified (in footnotes 4, 6 and 8) that agencies cannot charge for records they are able to redact securely by electronic means.
  • Made minor stylistic and grammatical changes.

Supreme Court Decision in Uniontown Newspapers v. DOC

Office of Open Records LogoThis morning, the Pennsylvania Supreme Court issued a decision in the case of Uniontown Newspapers v. Department of Corrections.

The decision, available here, is important reading for anyone with an interest in Pennsylvania’s Right-to-Know Law.

This case 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 Oct. 2018, Judge Simpson ordered DOC to pay $118,458.37 in legal fees.

Today’s decision not only upholds that sanction, it also includes strong language about the duty of the agency, and the Agency Open Records Officer, to conduct a good faith search for records at the request stage.

The complete OOR docket sheet (2014-1695) includes much more information.

The RTKL for Requesters – Video Training Session

Office of Open Records LogoOn Dec. 2, I hosted a training session on Zoom designed for requesters, including members of the media and anyone interested in accessing government records in Pennsylvania.

That session, The Right-to-Know Law for Requesters, is now available on YouTube.

Here’s the PowerPoint presentation that I used:

The Right-to-Know Law for Requesters (Dec. 2, 2020) – PPTX
The Right-to-Know Law for Requesters (Dec. 2, 2020) – PDF

You can watch the entire video here or on the OOR’s YouTube Channel:

Tomorrow (12/2) – RTKL Webinar for Requesters

Office of Open Records LogoTomorrow (Wed., Dec. 2, 2020) at 10 a.m., I will host a webinar about the Right-to-Know Law designed for requesters, including members of the media and anyone interested in accessing government records in Pennsylvania.

This webinar will be held via Zoom. You can find all the details you need to join on the OOR’s training calendar.

Here’s the PowerPoint presentation that I’ll use:

Other upcoming OOR webinars include:

  • Basics of the RTKL for Agency Open Records Officers – Dec. 9, 2020
  • Basics of the Sunshine Act – Jan. 6, 2021
  • The RTKL for Law Enforcement Agencies – Jan. 13, 2021
  • RTKL Payment Issues – Jan. 20, 2021
  • Confidentiality Laws and the RTKL – Jan. 27, 2021

Information about all of those webinars is available on the OOR’s training calendar.

The OOR regularly hosts webinars and in-person training sessions about various topics related to the Right-to-Know Law and the Sunshine Act. Feel free to request a specific training session for your group or organization.

Case Law Citations from 2020 Annual Training

Open records_logo stackedDuring yesterday’s Annual Training on Pennsylvania’s Right-to-Know Law and Sunshine Act conducted by the Office of Open Records, Chief Counsel Charles Brown discussed recent court cases of note.

Here are the citations to the cases he discussed:

  • Easton Area Sch. Dist. v. Miller, 232 A.3d 716 (Pa. 2020)
  • ACLU of Pa. v. Pa. State Police, 232 A.3d 654 (Pa. 2020)
  • City of Hbg. v. Prince, 219 A.3d 602 (Pa. 2019)
  • Payne v. Pa. Dep’t of Health, 2020 Pa. Commw. LEXIS 700, No. 579 C.D. 2019 (Pa. Commw. Ct. 2020)
  • Smart Communications Holdings, Inc. v. Wishnefsky, 2020 Pa. Commw. LEXIS 707, No. 80 C.D. 2019 (Pa. Commw. Ct. 2020)
  • Pa. Dep’t of Lab. & Indus. v. Darlington, 234 A.3d 865 (Pa. Commw. Ct. 2020)
  • Pa. Trpk. Comm’n v. Elec. Transactions Consultants Corp., 230 A.3d 548 (Pa. Commw. Ct. 2020)
  • Pa. Pub. Util. Comm’n v. Friedman, 2020 Pa. Commw. Unpub. LEXIS 505, No. 980 C.D. 2019 (Pa. Commw. Ct. 2020)
  • Pa. Liquor Control Bd. v. Burns, 2020 Pa. Commw. Unpub. LEXIS 313, No. 1159 C.D. 2019 (Pa. Commw. Ct. 2020)

The OOR’s Right-to-Know Law Case Law Index is also a useful resource.

Survey Results: COVID-19’s Impact on RTKL & Sunshine Act

Open records_logo stackedThe Office of Open Records recently conducted two surveys about the impact of the COVID-19 pandemic on the administration of Pennsylvania’s Right-to-Know Law (open records law) and Sunshine Act (open meetings law).

Some of the highlights were discussed yesterday at the OOR’s 2020 Annual Training, and here are the complete results:

Results from the COVID-19 Survey for AOROs (377 responses)
Results from the COVID-19 Survey for Requesters (26 responses)

Please note that approximately 40 executive agencies submitted a single joint response to the AORO survey, which the OOR thanks them for. Consequently, some of the results in that survey require deeper analysis to be considered truly representative.

Also note that due to the relatively small number of responses to the requester survey, it’s difficult (perhaps impossible) to draw any broad conclusions. However, I do believe some significant and useful information can be gleaned from reviewing those results.

Thank you to everyone who took the time to answer either of the surveys. We appreciate it.

OOR 2020 Annual Training – Complete Video

Open records_logo stackedThe Office of Open Records held its 2020 annual training yesterday via Zoom.

Most years, our Annual Training only includes voices from the OOR. This year, the training focused on the impact of COVID-19 on the administration of Pennsylvania’s Right-to-Know Law and Sunshine Act and we were joined by several extremely smart and knowledgeable people from outside the OOR. The complete lineup included:

  • Erik Arneson, OOR Executive Director
  • Charles Rees Brown, Esq., OOR Chief Counsel
  • Nathanael Byerly, Esq., OOR Deputy Director
  • Scott Coburn, Esq., PA State Association of Township Supervisors
  • Thomas Howell, Esq., PA Office of General Counsel Deputy General Counsel
  • Delene Lantz, Esq., OOR General Counsel
  • Melissa Melewsky, Esq., PA NewsMedia Association Media Law Counsel
  • George Spiess, OOR Chief of Outreach and Training

The complete video of the OOR’s 2020 Annual Training is available on the OOR YouTube channel (and below).

The PowerPoint presentation used during the training is available here:

OOR Annual Training – Nov. 18, 2020 (PPTX)
OOR Annual Training – Nov. 18, 2020 (PPTX)

Information about other OOR training sessions, including upcoming webinars, can be found on the OOR’s Training Calendar.

Presentation from Today’s OOR Annual Training

Open records_logo stackedEarlier this afternoon, the Office of Open Records hosted its Annual Training on the RTKL and the Sunshine Act.

The PowerPoint presentation used during that session is available here:

OOR Annual Training – Nov. 18, 2020 (PPTX)
OOR Annual Training – Nov. 18, 2020 (PPTX)

We plan to provide the entire session on the OOR’s YouTube channel as soon as possible.

Information about other OOR training sessions, including upcoming webinars, can be found on the OOR’s Training Calendar.