830 Right-to-Know Requests to the OOR in 2016

In addition to deciding appeals filed under the Right-to-Know Law, the Office of Open Records processes hundreds of Right-to-Know requests every year. In 2016, we responded to 830 requests.

Most requests filed with the OOR are misdirected: The requester isn’t really seeking OOR records; rather, they want records from another agency but mistakenly file the request with the OOR.

Last year, about 91% of RTK requests filed with the OOR were misdirected. However, the OOR responds to every request, and for the misdirected ones, we try to point the requester to best agency.

75 of the requests we received in 2016 were for OOR records. These were typically for copies of Final Determinations, case files, salary information, OOR forms, and the OOR’s procedural guidelines.

119 Appeals Involving Agencies in Allegheny County

More Right-to-Know Law appeals were filed in 2016 involving local agencies in Allegheny County — including the county itself, school districts, municipalities, etc. — than in any other county.

This comes as little surprise, since Allegheny County is home to about 130 municipalities and more than 40 school districts.

The top five counties by this measure were Allegheny (119), Montgomery (76), Philadelphia (70), Luzerne (64), and Bucks (60).

Local Appeals by County - 2016 Annual Report

The map below examines — in as fair a way as we’ve been able to develop — the relative impact of RTKL appeals on all of the agencies within each of Pennsylvania’s counties.

Still, it’s important to remember that a relatively small number of appeals filed involving agencies within a small county (Clarion County has about 40,000 residents) can make the impact look more significant than it really is.

Local Appeals by County (Per Capita) - 2016 Annual Report

Note: These maps illustrate workload; the data doesn’t necessarily correlate to the quality of agency responses to Right-to-Know requests within a given county. There are many factors to consider in evaluating agency responses and determining why a given number of appeals were filed. For example, it’s quite possible that one or two incidents could spike the number of requests (and potentially appeals) at a given local agency. Also, larger population areas tend to have more requests filed, often with more nuanced issues involved. It’s also useful to remember that the Office of Open Records has no way of knowing how many appeals are simply granted by agencies. That data is not collected on a statewide basis.

10 Examples of Records the RTKL Provided Access to in 2016

Here’s a sampling of the types of records which the Right-to-Know Law provided access to in 2016:

  1. $2 million paid by Philadelphia School District to defend itself in lawsuits related to a no-bid contract for surveillance cameras.
  2. More than $436,000 paid to defend former Attorney General Kathleen Kane in lawsuits filed by former employees.
  3. The misallocation of cash confiscated from suspected drug dealers in Cambria County.
  4. The fact that the Pittsburgh Intergovernmental Cooperation Authority was missing financial records and its former director used an ICA debit card for questionable spending. Legislation reforming the ICA, Act 99 of 2016, was subsequently enacted.
  5. $195,000 paid by the State Police to settle a claim that a man was jailed for nearly a month after troopers using a field drug test mistook soap for cocaine.
  6. A recommendation, which was never implemented, to install flashing lights at a railroad crossing where a woman was subsequently killed.
  7. A partially redacted report on the Gettysburg Police Department, including recommendations stemming from an officer’s use of a Taser during an arrest.
  8. $690,000 paid by Moon Area School District to settle a gender discrimination lawsuit.
  9. Documents showing that a PPL executive called the company’s storm room to ask about an outage in his neighborhood, leading to a delay in service restoration for other customers.
  10. Records showing that the Manheim Township School Board authorized a firm to begin searching for a new superintendent before taking a public vote.

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.

1,077 Appeals Filed by Citizens in 2016

More than half of the Right-to-Know Law appeals handled by the Office of Open Records last year were filed by everyday citizens, strong evidence that the RTKL is working for people across the state.

Citizens filed 51% of last year’s appeals; inmates filed 34%; members of the media, 7.2%; companies, 6.8%; and government officials, 1%.

That breakdown returned to what had been the norm. In 2015, inmates accounted for a plurality of requests for the first (and, so far, only) time ever. In every other year, citizens have filed more requests than any other group.

Appeals by Requester Type - 2016 Annual Report

Local & Commonwealth Agency Appeals in 2016

Among local agencies, municipal governments (cities, boroughs, and townships) were involved in the most Right-to-Know Law appeals in 2016: 53%.

If you include local police departments and fire departments, that percentage jumps to 63%.

Local Agency Appeals - 2016 Annual Report

Among commonwealth agencies, the Department of Corrections (38.7%) was involved in more appeals than any other in 2016. The vast majority of DOC appeals were filed by inmates.

The Pennsylvania State Police were involved in 6.8% of commonwealth agency appeals, followed by the Dept. of Transportation (5.9%), the Dept. of Environmental Protection (5.9%), the Board of Probation and Parole (3.8%), the Dept. of Human Services (3.1%), the Philadelphia Parking Authority* (3.0%), and the Dept. of State (2.8%).

Commonwealth Agency Appeals - 2016 Annual Report

* The Philadelphia Parking Authority is a commonwealth agency pursuant to the statute which created it.

2,102 Appeals Filed with the OOR in 2016

The number of appeals filed in 2016 declined from 2015’s record-setting pace, but the complexity of issues presented in the cases continued to grow.

Over the past five years, the average number of cases heard by the OOR is 2,342.

Predictions are dangerous, especially when they’re printed in an annual report (and on this blog) where anyone can refer back to them very easily, but… I predict the number of cases over the next several years will remain between 2,000 and 2,500 per year.

Appeals by Year - 2016 Annual Report

Highlights from the OOR’s 2016 Annual Report

The Office of Open Records’ Annual Report for 2016 is now available. I enjoy putting together these reports and think they provide good insight into how the Right-to-Know Law is working across Pennsylvania.

Highlights from this year’s report include:

  • 2,102 appeals were filed with the Office of Open Records in 2016. Of those, more than half (1,077) were filed by everyday citizens.
  • 1,424 appeals involved local agencies; 573 involved state agencies. (The remainder involved agencies over which the OOR does not have jurisdiction.)
  • 70 training sessions were conducted across the state and attended by about 3,000 people, including public officials, agency employees, and requesters.
  • 49 successful mediations were achieved, which help both agencies and requesters by ensuring that the appeals do not move to court.

I’ll be highlighting more of this year’s Annual Report in subsequent posts to this blog.

Past Annual Reports are available here.

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.

10 Examples of Records the RTKL Provided Access to in 2015

Here’s a sampling of the types of records which the Right-to-Know Law provided access to in 2015:

  1. Information regarding airport perimeter security breaches at Philadelphia International Airport and Northeast Philadelphia Airport.
  2. The amount spent on school district solicitor bills and other legal expenses over the course of a fiscal year at numerous school districts.
  3. A redacted copy of the Pennsylvania State Police After Action Report / Improvement Plan issued following the September 2014 shooting at the Blooming Grove barracks.
  4. De-identified information about the waiting lists for service at Norristown State Hospital, Torrance State Hospital, and other regional forensic psychiatric center facilities.
  5. Training records for a police officer charged (and later acquitted) in a fatal shooting.
  6. Emails related to discussions about where school crossing guards should be assigned after a girl was killed trying to cross at a busy intersection.
  7. The amount paid to settle a federal lawsuit filed by a woman who claimed her son was wrongly killed by a state trooper and, separately, the amounts paid to defend and settle a wrongful termination lawsuit brought by a former public defender.
  8. Information revealing that about 10 percent of school employees in a particular district were related to the district’s top officials.
  9. Emails indicating that local officials were using official email accounts for communication related to local elections.
  10. A log of reports of health complaints tracked by the Department of Health in areas of the state seeing natural gas development.

The complete Office of Open Records 2015 Annual Report is available on our website (along with previous years).