Evidence

Agencies Should Provide Evidence to the OOR

/ Liz Wagenseller / Leave a comment

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.

Commonwealth Court: Present All Evidence to the OOR

/ Liz Wagenseller / Leave a comment

Office of Open Records LogoIn a ruling earlier this week, the Commonwealth Court made it clear to agencies subject to Pennsylvania’s Right-to-Know Law that when an appeal is filed with the Office of Open Records, the agency should present all of its evidence to the OOR.

The case, Pennsylvania Department of Health et al v. Wallace McKelvey and PennLive, focused on applications submitted to DOH under Pennsylvania’s medical marijuana law. (Here’s the complete OOR docket.)

DOH and the companies which submitted the applications asked the Court to allow them to supplement the record with additional information which was not presented to the OOR. The Court denied the request:

“To the extent the record developed before OOR is inadequate, DOH and Permittees are at fault for that inadequacy. Lack 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.”

Using logic that could also be adopted by Courts of Common Pleas, the Court said:

“Moreover, allowing additional evidence at the judicial review stage has implications beyond the present matter. To ensure the RTKL offers an expedient means of access to public records, parties withholding information must be held to their burden of proof. Accepting additional evidence without cause essentially allows agencies to withhold records without legal grounds until reaching a Chapter 13 court, undermining the presumption of openness that forms the foundation of the current RTKL.”

In the decision’s conclusion, the Court wrote:

“OOR afforded extraordinary due process to DOH and Permittees, including multiple opportunities to submit evidence supporting their redactions. DOH and Mission offer no reason for not submitting the evidence they want to submit to this Court during that process. Therefore, we deny their applications for relief seeking to supplement the record.”

On an unrelated point in the same decision, the Court explicitly held that “corporate information is not protected under an individual’s right to privacy” under the state constitution.