Top Ten Most Significant Right to Know Cases of 2012

1.         SWB Yankees LLC v. Wintermantel, 45 A.3d 1029 (Pa. 2012)(Saylor, J).

In its first decision interpreting the current version of the Right-to-Know Law (“RTKL”), the Supreme Court tackled the issue of third-party records—records in the possession of non-public entities that enter contracts with public agencies to perform governmental functions.  The Court ordered a management company, which had been hired by a stadium authority formed by Lackawanna County to operate a county baseball stadium, to disclose its concessionaire bid records to a newspaper reporter.  The Court affirmed the Commonwealth Court which, in turn, had upheld the scholarly trial court opinion authored by Lackawanna County Common Pleas Judge Terrence R. Nealon.  The Supreme Court determined that the governmental-proprietary function test employed in other areas of the law was not applicable under the new RTKL.  Justice Saylor, writing for the majority stated: “… where a government agency’s primary activities are defined by statute as “essential governmental functions,” and such entity delegates one of those main functions to a private entity via the conferral of agency status, Section 506(d)(1) pertains on its terms to non-exempted records directly relating to the function.”

2.         Pennsylvania State Educ. of Ass’n ex rel. Wilson v. Com., Dept. of Cmty. & Econ. Dev.  (“PSEA”), 50 A.3d 1263 (Pa. 2012)(Saylor, J.).

In the most troubling case of 2012, the Supreme Court held that the Commonwealth Court had jurisdiction to hear an action brought by the PSEA to enjoin the OOR from ordering school districts to disclose the home addresses of school employees.  The PSEA decision provides a roadmap for powerful, monied entities to attempt to bypass the Office of Open Records(“OOR”), the administrative agency specifically created by the Legislature under the RTKL to guarantee the average citizen a timely method to appeal public records issues.  The potential impact of this decision has yet to be seen.

3.         Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Cmwlth. 2012)(Brobson, J.).

The Commonwealth Court published a number of decisions regarding electronic records, particularly concerning e-mails among public officials.  This case stands out because it was the first decision to hold that e-mails by public officials conducting public business are public records even if the e-mails are sent or received from personal e-mail addresses.  The Court held that such e-mails discussing transactions or activities of the Borough were “of” the agency and that constructive possession of public records is still possession under the RTKL.

4.         Delaware County v. Schaefer ex rel. Philadelphia Inquirer, 45 A.3d 1149 (Pa. Cmwlth. 2012)(en banc, McGinley, J.).

This case involved the claimed privacy rights of county employees in their dates of birth(“DOBs”).  The Commonwealth Court followed an earlier decision, Governor’s Office of Administration v. Purcell, 35 A.3d 811 (Pa. Cmwlth. 2011), which held that the month and day of a state employee’s date of birth are exempt from public disclosure under the “personal security” exemption.  The Purcell court based its decision on potential fears of identity theft if full DOBs were public.  Schaefer addressed similar claims by local agency employees. Although Schaefer purports to follow Purcell, some internal inconsistencies in the two opinions leave open the question of whether the year of a public employee’s birth is exempt from public disclosure.

5.         Com., Dept. of Envtl. Prot. v. Cole, 52 A.3d 541 (Pa. Cmwlth. 2012)(Leavitt, J.).

In another decision which wrestled with issues surrounding electronic records, the Commonwealth Court held that an agency may not deny a request to produce information in a format suggested by the requester, if it maintains the records electronically.  Although the agency need only produce the record in the format in which it is maintained, the Court clearly stated that having to draw public information from a database does not constitute creating a record under §705 of the RTKL.  Judge Leavitt referenced an earlier, unreported decision, Gingrich v. Pennsylvania Game Commission, (Pa. Cmwlth., No. 1254 CD 2011, filed January 12, 2012) authored by Judge Simpson requiring the Commission to respond to a request for information regarding deer harvests which could be obtained by drawing information from electronic data maintained by the agency and that such activity was not “creating a record.”

6.         Dep’t of Transp. v. Drack, 42 A.3d 355 (Pa. Cmwlth. 2012)(Brobson, J.).

Rejecting the gamesmanship commonly seen in denial letters issued by executive agencies, the Commonwealth Court held that an agency may not issue an “interim-denial letter” refusing to process a request until the requester pays fees due for a prior request.   The Court also again held that an agency must raise all specific grounds for denial in the initial denial letter and the failure to do so will result in waiver.  Note: Earle Drack is the only pro se litigant on this list.

7.         Montgomery County v. Iverson, 50 A.3d 281 (Pa. Cmwlth. 2012)(en banc, Cohn-Jubelirer, J.).

In yet another e-mail case, the Court ruled that when submitting a request for e-mails, a requester must identify the specific e-mail addresses, subject matter, and dates for the records sought.  This case is at odds with the provision of the RTKL that places the burden of proof on the agency to show that a record is not a public record.   As a result, agencies may try to deny access to public e-mails solely because the requester does not know the exact e-mail address used by the public official.   This case could also prove to be problematic due to current attempts by Commonwealth agencies in particular to assert that certain e-mail addresses assigned by the agency to it employees are “personal”(as opposed to a general address such as office@state.pa.us) and, thus, exempt from disclosure to a potential requester.  See Office of the Lieutenant Governor v. Mohn and Office of the Governor v. Raffle under Coming Attractions below.

8.         City of Philadelphia v. Philadelphia Inquirer, 52 A.3d 456 (Pa. Cmwlth. 2012)(en banc; Pellegrini, P.J.; Simpson & Brobson, JJ., dissenting).

A divided Commonwealth Court held that the calendar entries of Philadelphia’s Mayor and Council members are exempt from public disclosure under the “working papers” exemption, §708(b)(12), of the RTKL.  Any precedent set in this case may be short-lived, as the Commonwealth Court will address similar issues in the Scolforo case discussed in Coming Attractions below.

9.         Com., Dept. of Envtl. Prot. v. Legere, 50 A.3d 260 (Pa. Cmwlth. 2012)(Covey, J), reconsideration denied (Aug. 30, 2012).

In a case involving requests for records related to the Marcellus Shale natural gas industry, the Commonwealth Court held that a request for Oil and Gas Act Section 208 Determination Letters was sufficiently specific for the DEP to respond to the request.  The DEP’s failure to store its records in searchable fashion did not justify the DEP’s denial of access to what are otherwise public records.

10.       Andrew Staub and the Citizens Voice v. City of Wilkes Barre and LAG Towing Inc., No. 8294 of 2012, (Luzerne C.P., Judge L. Gelb 10/16/2012).

An appellate court has yet to award sanctions for acts of bad faith under the current version of the RTKL.  In this case, however, the Court of Common Pleas of Luzerne County ordered the City of Wilkes Barre and a private towing company to pay attorneys fees to a newspaper.  The trial court found that the newspaper incurred unnecessary legal fees when the City and the towing company argued that records were exempt from public disclosure for almost a year without disclosing that the records did not actually exist.    This case has been appealed to the Commonwealth Court, so stay tuned.  Nos. 2139 and 2140 CD 2012.

Five Coming Attractions for 2013

1.         Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010)(en banc, Simpson, J.) appeal granted in part, 15 A.3d 427 (Pa. 2011).

The Supreme Court has yet to render an opinion in the first case to reach the court under the current RTKL.  The case was argued in September 2011.  This was also the Commonwealth Court’s first decision under the current version of the RTKL where it held that the OOR’s final determinations, unlike determinations by other administrative agencies, are not entitled to deference from the Commonwealth Court.   The holding actually states that the first “reviewing court” to hear an appeal from the OOR may also substitute its findings of fact and conclusions of law for those of the OOR.  This obviously includes trial courts hearing local agency appeals.  This decision when announced will undoubtedly have a major impact on RTKL for decades to come and, in particular, the fundamental ability of the OOR to issue potentially binding determinations.

2.         Levy v. Senate, 34 A.3d 243 (Pa. Cmwlth. 2011)(en banc, Simpson, J.) appeal granted, 44 A.3d 1146 (Pa. 2012).  

The Commonwealth Court held that a bonus-gate reporter was entitled to review invoices for legal services submitted by individual legislators for payment to the Senate.  This case was argued before the Supreme Court in October 2012(No. 20 MAP 2011), and the Court’s decision will address: (1) whether client identity and description of legal services are protected by attorney-client privilege and thus exempt from public disclosure, (2) whether an agency must assert every possible ground for denial in its initial denial letter or face waiver of those not raised,  and (3) whether the Commonwealth Court must grant any deference to the findings of the Senate Appeals Officer’s final determination (Note: appeals of denials by a “legislative agency” do not go to the OOR but to each body’s assigned appeals officer under §503(c)).

3.         Bagwell v. Pennsylvania Dep’t of Education, Commonwealth Court Docket 1916 C.D. 2012.

The Commonwealth Court will address whether emails and other documents related to the Freeh Report received by the Secretary of the Department of Education, in his capacity as a Trustee of the Board of Trustees of the Pennsylvania State University, are public records as records of the Department of Education.

4.         Office of Governor v. Scolforo, Commonwealth Court Docket 739 C.D. 2011.

This case involves a reporter’s request to see Governor Corbett’s calendar.  The Commonwealth Court has already heard argument en banc and issued a divided 4-3 opinion.  But in an extremely rare occurrence, the Court granted reargument and withdrew its initial opinion.  In the next go round, the Commonwealth Court will address whether the Governor’s calendar is exempt pursuant to the predecisional deliberation exemption and the deliberative process privilege.  The case will be argued on February 14, 2013.

5.         Office of the Governor v. Raffle, Commonwealth Court Docket 1168 C.D. 2012

             Office of the Lieutenant Governor v. Mohn, Commonwealth Court Docket 1167 C.D. 2012

The Commonwealth Court will address whether the Offices of the Governor and Lieutenant Governor can withhold: (1) agency issued e-mail addresses on the basis they were “personally” assigned to them; (2) direct dial telephone numbers for agency issued telephones; and (3) the home address of Governor Corbett and another employee in his office. These cases will be argued before the Court en banc on February 14, 2013 also.