As 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 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.