On October 24, 2019, the Pennsylvania Commonwealth Court issued a decision regarding Pennsylvania’s Right to Know Law (RTKL) and treasure hunters seeking information from the government relevant to a potential found treasure.[1]  After conducting an in camera review of the requested documents, the court determined that these documents were subject to disclosure under the RTKL and ordered their production.

The petitioner, Cluck, is an attorney representing Finders Keepers, LLC, a company specializing in treasure hunting.  The company believed it had found a Civil War-era cache of gold in the Dent’s Run area of Pennsylvania, so it met with the FBI and an Assistant United States Attorney in early 2018 to discuss the potential find.  This purported cache, and the legend thereof, date back to the summer of 1863 when Union members were transporting 26 gold bars, each weighing 50 pounds, from West Virginia to the U.S. Mint in Philadelphia.  According to the Philadelphia Inquirer, this amount of gold in today’s currency would be worth $27,381,120.  The legend is that these members were ambushed in transit and the gold was then lost and allegedly buried.  Therefore, if the gold did exist, the federal government would continue to lay claim to it; hence why Finders Keepers met with the FBI.

The FBI then initiated an investigation and met with the company at the purported location of the cache with one of its contractors.  A few months after the initial meeting, the FBI told the company that its contractor had located a large area of metal, coming in at an estimated seven to nine tons in mass.  After obtaining a federal warrant, the FBI entered the state forest property in Dent’s Run with the Department of Conservation and Natural Resources (DCNR) to excavate the area.  The FBI claimed that it did not find anything during the excavation.

After hearing this news, Finders Keepers, through its attorney, filed a request for records with DCNR under the RTKL.  Cluck sought all communications between DCNR and the FBI pertaining to the excavation of the Dent’s Run area.  On October 15, 2018, DCNR denied the request, claiming an exemption from RTKL disclosure since the records had been sealed by federal court order.  Accompanying DCNR’s decision was a letter from an Assistant United States Attorney stating that the FBI’s investigation was ongoing, and that all affiliated documents were under federal court seal.  Undeterred, Cluck appealed DCNR’s decision to the Office of Open Records (OOR).  In the appeal, DCNR’s Chief Counsel filed an affidavit indicating that she had been personally served with the federal court’s order, and that it had been filed under seal.  The Chief Counsel indicated that she had been told that all communications relating to the investigation were confidential.  On the basis of this affidavit, and without reviewing the federal order in question, the OOR affirmed the denial of Cluck’s request for records.

Cluck then filed an appeal with the Commonwealth Court, seeking in camera review of the federal order to determine whether the communications between DCNR and the FBI were actually exempt from disclosure under the RTKL.  In camera review occurs where requested documents are produced for the court’s review, usually under seal, so the court can examine the documents to determine whether a claim of privilege or exemption is legally appropriate.  DNCR complied with this request for production and the Commonwealth Court accordingly reviewed the federal order under seal.

The court recognized that the purpose of the RTKL is to “empower citizens by affording them access to information concerning the activities of their government[,]”[2] and that the RTKL operates in favor of disclosure.  Ordinarily, a record is subject to disclosure unless otherwise protected by exemption, privilege, or judicial decree or order.  As such, the agency attempting to deny the request bears the burden of proof to show that one of these exceptions to disclosure applies.  Upon review of the order in question, the court determined that the order did not shield or otherwise bar disclosure of any communications between the FBI and DCNR regarding the excavation at Dent’s Run aside from the order itself since it had been filed under seal.  The court went on to state that the order did “not provide any conceivable basis for the withholding of the requested records under the RTKL[.]”[3]  Therefore, the court determined that DCNR had neglected to prove that the requested records at issue were exempt from disclosure.  DCNR was then directed to produce the requested communications.

The case demonstrates that, despite the existence of a sealed federal order, the content of the judicial order itself determines whether a record requested under the RTKL is actually subject to disclosure.  In other words, state agencies involved with investigations at the federal level cannot necessarily fail to disclose communications regarding such investigations merely by invoking the presence of a federal order sealing the investigation.  As this decision illustrates, disclosure of the public’s records remains the “gold” standard of the Commonwealth’s Right to Know Law.

[1] Cluck v. Dep’t of Conservation & Natural Resources, No. 16 C.D. 2018 (Pa. Commw. Ct. 2019).
[1] Id., at 5.
[1] Id., at 6-7.

With contribution from Sarah Rothermel, J.D. Widener Law Commonwealth.