2017 saw the end of the ninth year of the ‘new’ Right to Know Law. The flood of appellate cases has slowed somewhat, but the Law continues to provide fertile ground for numerous substantive and procedural issues with which the appellate courts must wrestle. Included in our top ten list are cases that continue to attempt to settle lingering procedural issues such as what is the proper enforcement mechanism for a requester to compel a recalcitrant agency who does not appeal but still refuses to turn over public records when ordered to do so by the OOR?

Other procedural issues addressed were the Commonwealth Court upholding a sanction entered by the lower court against the Philadelphia District Attorney’s Office for a bad faith denial, and the effects on a requester’s ability to challenge an appeal by a third-party (direct party participant). Home addresses continued to dominate even after the PSEA III decision as the courts struggle with if a ‘balancing test’ must apply. Finally, for the first time ever, the General Assembly made the top ten list for completely disemboweling a well-reasoned decision of the Supreme Court which would have made the video portion of most routine police dash cam recordings public records. Here is our selection of the top ten RTKL cases of 2017 (with a few honorable mentions).

  1. Reese v. Pennsylvanians for Union Reform, Nos. 42, 43, 111 MAP 2016, ___ A.3d ___ (Pa. 2017) (majority opinion by Justice Donahue, joined by Justices Baer, Dougherty and Mundy; concurring opinion by Justice Wecht).*
  • Exemptions from public disclosure do not apply to records made public by laws other than Right to Know Law.
  1. Baron v. Commonwealth Dep’t of Human Servs., 169 A.3d 1268 (Pa. Commw. 2017) (en banc) (majority opinion by Judge Simpson, joined by President Judge Leavitt, and Judges Brobson, McCullough, Covey, Wojcik, and Cosgrove).
  • Automatic stay arises from appeal by direct interest participant in OOR proceeding.
  1. UnitedHealthcare of Pennsylvania, Inc. v. Baron, 171 A.3d 943 (Pa. Commw. 2017) (en banc) (majority opinion by Judge Simpson, joined by President Judge Leavitt, and Judges Brobson, Covey, Wojcik, and Cosgrove; concurring and dissenting opinion by Judge McCullough).
  • Petition for review, not notice of intervention, is proper mechanism for direct interest participant to seek judicial review.
  1. Office of the District Attorney of Philadelphia v. Bagwell, 155 A.3d 1119 (Pa. Commw. 2017) (opinion by Senior Judge Colins, joined by Judges Cohn Jubelirer and McCullough).
  • District Attorney sanctioned for denying RTK request in bad faith.
  1. Smith on behalf of Smith Butz, LLC v. Pennsylvania Dep’t of Envtl. Prot., 161 A.3d 1049 (Pa. Commw. 2017) (opinion by Senior Judge Pellegrini, joined by Judges Simpson and Hearthway).
  • In-depth analysis of exemptions for trade secrets and confidential proprietary information.
  1. Butler Area Sch. Dist. v. Pennsylvanians for Union Reform, 172 A.3d 1173 (Pa. Commw. 2017) (opinion by Judge Simpson, joined by Judge Covey; dissenting opinion by Judge Wojcik).
  • Tax assessment list (including owner names and property addresses) is public record which must be disclosed without application of PSEA III balancing test.
  1. Capinski v. Upper Pottsgrove Twp., 164 A.3d 601 (Pa. Commw. 2017) (opinion by President Judge Leavitt, joined by Judges Brobson and Covey; concurring opinion by Judge Brobson).
  • Mandamus, rather than petition for enforcement, is appropriate vehicle to compel production of public records.
  1. Drack v. Tanner, 172 A.3d 114 (Pa. Commw. 2017) (opinion by Judge Brobson, joined by Judge Wojcik and Senior Judge Leadbetter).
  • Township required to answer complaint in mandamus seeking to compel Township to retrieve public records from third-party.
  1. Dep’t of Human Services v. Pennsylvanians for Union Reform, Inc., 154 A.3d 431 (Pa. Commw. 2017) (en banc) (majority opinion by Judge Brobson, joined by President Judge Leavitt and Judges Simpson, and Covey; dissenting opinion by Judge McCullough, joined by Judges Hearthway and Cosgrove; dissenting opinion by Judge Hearthway, joined by Judges McCullough and Cosgrove; dissenting opinion by Judge Cosgrove, joined by Judge McCullough)*; State Employees’ Retirement System v. Campbell, 155 A.3d 1153 (Pa. Commw. 2017) (opinion by Judge Cosgrove, joined by Judges Simpson and Hearthway); Chester Hous. Auth. v. Polaha, ___ A.3d ____, No. 2391 C.D. 2015, 2017 WL 5586631 (Pa. Commw. Nov. 21, 2017) (opinion by Judge Covey, joined by Judge McCullough and Senior Judge Ohler); State Employees’ Ret. Sys. v. Fultz, No. 1603 C.D. 2016, 2017 WL 1161075 (Pa. Commw. Mar. 29, 2017).
  • PSEA III does not preclude disclosure of home addresses; agencies ordered to perform balancing tests.
  1. Pennsylvania State Police v. Grove, 161 A.3d 877 (Pa. 2017) (majority opinion by Justice Dougherty, joined by Justices Baer, Todd, Donohue, and Wecht; concurring opinion by Justice Wecht, joined by Justice Todd; concurring and dissenting opinion by Chief Justice Saylor; concurring and dissenting opinion by Justice Mundy).
  • This case, which made police dash cam videos public records, would have been the top case of the year, but, in a blow to transparency, the General Assembly enacted Act 22 of 2017 to make police dash cam videos exempt unless police determine disclosure is in the public interest.

Honorable Mention

Miller v. County of Centre, Nos. 98, 99 MAP 2016, ___ A.3d ___ (Pa. 2017) (majority opinion by Justice Wecht, joined by Chief Justice Saylor and Justices Baer, Todd, and Mundy; concurring opinion by Justice Donohue, joined by Justice Dougherty).*

  • District Attorneys are not judicial agencies under the Right-to-Know Law.

Cafoncelli v. Pennsylvania State Police, No. 1392 C.D. 2016, 2017 WL 2415205 (Pa. Commw. June 5, 2017).

  • Family member of murder victim barred from reviewing police records, even though crime occurred more than 50 years before and the perpetrator was deceased.

Diveglia v. Pennsylvania State Police, No. 1378 C.D. 2016, 2017 WL 3798521 (Pa. Commw. Sept. 1, 2017).

  • Office of Open Records cannot dismiss appeal where requester refuses to grant indefinite extension for in camera review.

* Nauman Smith’s RTKL practice group represented parties in these appeals.