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

October 23-29, 2014 - In This Issue:
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
Gaming Control Board v. Office of Open Records, 1134 C.D. 2009, June 11, 2012
(appeal pending)
- Affirmed in part: Necessity to use a form to file a request or address request to the open records officer
- Section 703 - written requests
- Section 902 - agency duties 

The Requester sent an e-mail to the Gaming Board's Communication's Office (who is not the Open Records Officer) requesting communications as well as an opportunity to speak at the next Board's next public hearing. The Communications Office responded to the request to speak, but did not respond to the request for records. on appeal, the Board argued that the e-mail did not represent a proper RTKL Request because the Request was not submitted on a RTKL request form, did not state that the Request was a RTKL request and was not addressed to the agency open records officer.

The Commonwealth Court determined that the Requester did fail to comply with the Board's policy on the format of a request for records; however, the Court held that the Board should have, notified the Requester that the Request was invalid under the Board's policy.  


The Court concluded that agencies "should presume that written requests for records are Right-to-Know requests" and that a request for records sent to the wrong person must be forwarded to the open records officer. The Court explained, however, that not all written requests must be directed to the open records officer noting that there could be "another process for handling specific requests, such as a copy of one's lost drivers' license or a copy of one's birth certificate."  


For more detail on this case, visit our website.
OOR Decisions
Fennel v. Philadelphia Police Department 
- Denied: Requester failed to comply with agency policy requiring use of a form
- Section 504

The Request in this matter was submitted to the Department's open records officer and clearly indicated that it was a RTKL Request.  The Department timely responded to the Requester denying the Request because the Requester failed to use a form to submit the Request as required by the Department's policy. 

The OOR made clear that the RTKL does not require a Requester to use a form, but does permit an agency to "promulgate regulations and policies to govern its administration of the RTKL."  The OOR affirmed the denial noting that the Requester was also notified of the policy on at least four prior occasions.

 Katz v. Lower Merion School District
- Partially Granted:
- Specificity
- records do not exist
- evidence necessary to prove denial

The Requester sought a variety of records often framing his request as "all documents" related to X.   The OOR found that the requests that identified a particular agency business were sufficiently specific mostly because the agency admitted that it understood what the Requester sought and had identified records, despite arguing the Request lacked specificity. The OOR also found specific a request for records related to "former players" finding that the fact that it might be burdensome to identify responsive records where the request did not identify the former players did not render it insufficiently specific.

Certain other Requests were insufficiently specific because the Request failed to identify a "time frame" in which the records would have been created. That being said, the OOR held that "a Request that refers to a specific event can have a timeframe limited to the time in which that event occurred" and found one such Request specific.

The OOR also delved into the agency's claim that no records exist responsive to other parts of the Request.  Where the agency provided an affidavit of nonexistence from persons with actual knowledge, the OOR affirmed the denial. However, where the agency failed to show that it had properly sought records from all persons who might have responsive documents the OOR required the agency to re-search and then release responsive records.

Finally, the OOR reviewed whether the District had met its burden to prove that certain exceptions applied and in some cases upheld the agency and in others found the agency's response conclusory or "parroting" of a legal basis and lacking in evidence to prove the application of the basis.

Question of the Week:
Is a Requester required to use a specific form to submit a RTKL Request?     
Generally speaking, no - unless an agency has created and posted a policy requiring the use of a form. The Pennsylvania Right to Know Law permits an agency to promulgate policies and procedures for complying with the RTKL. One of those polices could be requiring a Requester to use a form when submitting a RTKL Request.  An agency may develop its own form, but it must also accept the Office of Open Records standard form.

With or without a policy, an agency cannot ignore a Request that is submitted without a form.  The agency is required to timely respond to the Request and notify the Requester of the agency's policy. If the agency does not have a written and publicly available policy, it cannot deny a Request simply because the Request is not submitted on a form.

For  more information on how the Law Office of Audrey Buglione can assist you in drafting policies or reviewing current policies to ensure they are in compliance with the RTKL, contact us at 717-657-1597 or via email at 
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
OOR Annual Training held Oct. 22, 2014
If you missed the 2014 Annual Training presented by the Office of Open Records in Harrisburg, you can watch in courtesy of PCN TV here.

PA State Association of Boroughs - Webinar, Nov. 4, 2014
The Pennsylvania State Association of Borough is holding a webinar update on the RTKL on November 5, 2014 at noon.  Learn More

Got RTKL issues? We can help.
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. Knowing the proper response to an uncommon or confusing request for records can be difficult without spending hours keeping up with the ever changing RTKL.  Commonwealth Agency Open Records Officers have dedicated attorneys to turn to when such questions arise. Until now, smaller agencies did not. The Law Office of Audrey Buglione offers rapid legal guidance to your pressing RTKL questions. Giving the right response from the beginning helps to avoid protracted and costly litigation before the Office of Open Records or courts. As a former appeals officer, Audrey is intimately familiar with the RTKL and the subtle differences between what makes one record public and a similar record not public. 

For more information on how we can assist your agency from the Request through any appeals and avoid wasting taxpayer dollars on unnecessary RTKL litigation, contact us at  717-657-1597or 

Are your agency policies in compliance with the RTKL?  Are your employees up-to-date on how the RTKL impacts their duties? Are your procedures for complying with the RTKL efficient and cost-effective?  Do you have a records management plan? 

If your answer is No to any of those questions, you may be needlessly wasting tax payer dollars and putting your agency at risk for increased public scrutiny leading to expensive litigation.

As a former Appeals Officer and Training Coordinator for the Office of Open Records Audrey knows first hand the difficulties agencies may face in complying with the RTKL. 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 to provide customized training sessions or speak at your upcoming meeting or conference.

For more information on how consulting and training, contact us at  717-657-1597 or 

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.

For more information on how Audrey can represent you, your agency or your organization in the appeals process or attorney referral options, contact us at  717-657-1597 or 

In the News

In the Know
A weekly electronic newsletter on the Pennsylvania Right to Know Law presented by 
The Law Office of Audrey Buglione
4304 New Jersey Avenue
Harrisburg, PA 17112
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Keeping you "In the Know on the Right to Know"

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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 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.


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