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.