Attorney Audrey Buglione's electronic newsletter keeping you
"In the Know" on the Right to Know Law

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Case law review
To keep you In the Know, each week we review select Office of Open Records Final Determinations and decisions issued by the Commonwealth Court or Supreme Court.  
Commonwealth Court
Office of Administration v. Pennsylvanians for Union Reform, Inc., 498 CD 2014, November 20, 2014

 * Section 708(b)(1) - County of residence is public information absent evidence to the contrary
* Attorney fees

Agencies must provide evidence to support nondisclosure of the specific information sought

 

The Request sought the address and county of residence for specific Commonwealth of Pennsylvania employees. The Requester appealed only the denial of the counties of residence. On appeal to the Commonwealth Court, the Court noted that the OA bore the burden to provide evidence to support its grounds for denial, but failed to do so. In the appeal before the OOR the OA requested the OOR to "incorporate...by reference" evidence submitted in a separate appeal. The OOR did not do so. However, in the reproduced record to the Court the OA included copies of employee confidentiality requests pertaining to address disclosure and affidavits from agency representatives expressing concern over address disclosure. The Court found that even if it were to consider that evidence, it supported justification for denial of home addresses, not the counties of residence at issue.  

 

 The Court rejected OA's argument that county of residence is a "component part" of an address. The Court acknowledged that there may be situations in which the county of residence could be permissibly withheld, but reiterated that "it must be based upon the conclusion that disclosing the county of residence itself" would trigger the protections afforded by Section 708(b)(1)(ii) of the RTKL.

 

The Court denied the request for attorney fees "recognize[ing] the legitimacy of OA's general concerns regarding the personal security of the affected individuals and note its reasonable attempt to satisfy the RTKL's disclosure exemptions given the lack of clearly established law" regarding the public nature of the requested information. 

Bagwell v. Office of Attorney General, 1008 CD 2014, November 20, 2014

* In camera review
* Evidence to support denial or affirmation of denial

Records reviewed in camera should be filed under seal with the reviewing court. 

 

The Requester sought correspondence sent or received by identified OAG employees and sent to The Freeh Group. The OAG withheld those it deemed exempt as relating to a criminal investigation. The OAG Appeals Officer (which reviews appeals of denials by the OAG) examined each withheld email and upheld the OAG denial.

The Requester argued to the Commonwealth Court that no evidence existed to support the denial because there were no supporting affidavits and the Appeals Officer's opinion gave only bare conclusions as to how the exemptions applied. The Court agreed finding that although the ORO and the Appeals Officer conducted an

in camera

review, "
evidence must be specific enough to permit this Court to ascertain how disclosure of the entries would reflect that the records sought fall within the proffered exemptions." Acknowleding the difficulty of begin specific without revealing the information withheld, the Court opined that documents reviewed in camera should be filed under seal with the Court so that it can undertake its own appellate review. 
For more detail on this case, visit our   judicial decisions page
OOR Decisions
English v. City of Pittsburgh

* Beyond Gaming Control Board: What is a proper RTKL request?

In this matter, the Requester sent correspondence seeking information regarding parking revenue to the agency's open records officer.  The agency did not respond and the Requester appealed to the OOR. The agency submitted a position statement advising that it 
had not processed the Request under the RTKL because it treated the letter as "correspondence relating to an earlier RTKL appeal." The OOR disagreed and relying upon the recent Gaming Control Board Supreme Court opinion held "
when a request for records is addressed to an agency's open-records officer, an agency is required to presume that a written request for records is a request made pursuant to the RTKL." The OOR noted that the Request also sought to receive the information within five days.  
Question of the Week:   

Does the RTKL require* a request for records to be addressed to the agency open records officer?

*The answer reflects a significant and important recent change to the duties of requesters and agencies. 

Answer:
As of last week, YES!  The Pennsylvania Supreme Court reversed the Commonwealth Court and the Office of Open Records and held that to make a valid RTKL request a Requester is required to provide "at least some positive indication that the intended recipient of the written request is the agency's open-records officer, whether that officer be identified by name or by title, whether the requestor sends his request to the open-records officer's specific email address or fax number, or whether the requestor actually places his request directly in the hands of the open-records officer."  Prior to this decision, agencies were required to treat all written requests for records as RTKL requests whether or not  the request cited the RTKL or was addressed to the open records officer.

The OOR recently issued a final determination stating "when a request for records is addressed to an agency's open-records officer, an agency is required to presume that a written request for records is a request made pursuant to the RTKL."

For more detail on this important case, visit our judicial decisions page.

If you need assistance making a request or evaluating a request, contact us at 717-657-1597 or via email at info@recordslaw.com to see if we can help. 
IMPORTANT:   The answers to these questions should not be deemed legal advice or be acted upon without prior consultation with appropriate professional advisors. 
Learn more about the RTKL and how it affects you, your agency or your business
Pennsylvania State Association of Boroughs
Open Records and Records Management

PSAB is offering a full day training seminar on the RTKL and records management.  The seminar is being held in Lackawanna, Montgomery and Greensburg in January and February 2015.

To register or for more information click here.

Got RTKL issues? We can help.
Has a denial or failure to respond to a request resulted in an appeal or the necessity of an appeal to the Office of Open Records or beyond? The RTKL and OOR procedures establish a very rapid response period to appeals with little time to get up to speed on the status of the law. If you have a RTKL matter, it is important that you seek legal guidance as soon as possible. Audrey handles RTKL matters for private citizens, media, and government agencies in all Pennsylvania counties including appeals before the Office of Open Records, courts of common pleas and Commonwealth Court.
Our goal is to help make your job as the Agency Open Records Officer responding to Right to Know Request as efficient and painless as possible. Giving the right response from the beginning helps to avoid protracted and costly litigation before the Office of Open Records or courts.
Audrey offers consulting services to review your current policies, draft new policies or revise existing policies, and provide a detailed plan on how to manage records and respond to RTKL requests in an efficient and cost effective manner that increases public confidence in your agency.

Audrey is also available for customized training sessions or to speak at your upcoming meeting or conference.
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OOR Decisions
Kennedy v. Armstrong County

* Section 506(a)  - disruptive request
* A second request is not "disruptive" 
* Guideline for eligibility to receive a public defender

The Requester made a second request for information that had been previously sought and denied.  The Requester had filed an appeal of the first denial with the OOR, but that appeal had been dismissed triggering a filing of the second request. The County denied the second request only based upon its duplicative status.

On appeal to the OOR, the County provided no evidence to support a denial and no evidence that to respond to the second request constituted an "unreasonable burden." The OOR held that a second request for a record is not a "repeated request." The OOR ordered release of the information because the County provided no evidence to support denial other than that it was the County's policy to deny the type of information sought.




The Law Office of Audrey Buglione
4304 New Jersey Avenue
Harrisburg, PA 17112
phone: 717.657.1597

Keeping you "In the Know on the Right to Know"

In the Know
A weekly electronic newsletter on the PA Right-to-Know Law

Disclaimer: This newsletter is for general information only. The information presented is not legal advice, and your use of it does not create an attorney-client relationship. No visitor to this newsletter or the website www.recordslaw.com should act on the basis of any content included therein without seeking the appropriate legal advice from counsel. Any prior results described do not guarantee a similar outcome. The attorney responsible for maintaining this newsletter is Audrey Buglione.