Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision on February 7, 2013 in Ledcke v. County of Lackawanna, No. 12 CV 6701, holding that a requester seeking to enforce a Final Determination of the OOR should do so by a Complaint in Mandamus or, possibly a motion for civil contempt. Judge Nealon found a “Petition to Enforce Final Determination of OOR” was not an appropriate method of enforcing such an order.
Judge Nealon, (who authored the initial trial court opinion in the SWB Yankees, LLC v. Wintermantel eventually upheld by the Supreme Court) found that there was no support within the Right-to-Know Law nor under Pennsylvania procedural practice which would sanction the use of a document entitled “Petition to Enforce.” Judge Nealon found that, absent such statutory or procedural support, the trial court was without jurisdiction to consider such a “petition” or order relief.
The more appropriate procedural device for commencing an action to enforce the OOR’s decision and to secure the requested public records would appear to be the filing of a Complaint in Mandamus pursuant to Pa.R.C.P. 1093(1) and 1095 seeking to compel the local agency’s Open Records Officer to produce the relevant records.Opinion p. 8
The Court held that, once the 30 day appeal period has run from the issuance date of the OOR’s Final Determination and no appeal has been filed by the agency, it does become a final order and the delivery of the records required by the Final Determination is no longer a discretionary act, but mandatory, thus mandamus is appropriate. The Court also found that there was no other adequate and appropriate remedy at law, particularly as the RTKL does not provide any statutory enforcement mechanism.
The Court also opined that a properly instituted action for civil contempt against the non-compliant Open Records Officer may also be appropriate. The Court reasoned that the OOR is an administrative agency and there exists some precedent recognizing that a local agency may be held in civil contempt of failure to comply with an order issued by such an agency, although the standard of proof is somewhat more demanding.
Somewhat ironically, the Court concluded its analysis by finding that the county had not objected to the Petition to Enforce, however, by the time it reached the court for determination, the county had delivered the requested records. The Petition to Enforce was, therefore, dismissed as moot.
However, the decision gives requesters some logical, procedural bases to enforce Final Determinations of the OOR which are not appealed by an agency. Some agencies would simply ignore the Final Determinations knowing the OOR has no ability to enforce them, thus, forcing the requester to take some additional court action and incur additional expense. Trouble was no one knew what that “action” should be. Absent some further appellate or statutory guidance, Judge Nealon’s well-reasoned opinion provides two avenues of relief which are well-grounded in the law and provide requesters with a pathway to enforce the OOR’s Final Determinations.
Penn State Faculty Recommends Appointing Internal Task Force to Study the Academic Implications of Applying the Right-to-Know Law to Penn State
The Special Committee on University Governance, which was appointed by the University Faculty Senate to study the structure and practices of the Board of Trustees and to make recommendations for improving governance and communication at Penn State, issued a report this week. One of the items addressed in the report was the recommendation made by former Auditor General Jack Wagner that Pennsylvania’s Right-to-Know Law should be fully applicable to Penn State. The Committee that prepared the report agrees that Penn State should be accountable to the citizens of the Commonwealth and transparent regarding the expenditure of state appropriations received from the state. The Committee was concerned, however, of the impact of the application of the Right-to-Know Law to Penn State would have on the academic autonomy of the University and on the faculty’s intellectual property. In light of these competing concerns, the Committee recommended the appointment of an internal task force to study the academic implications of applying the Right-to-Know law to Penn State.
It is understandable that the faculty at Penn State does not want their intellectual property freely disclosed to the public. It should be noted, however, that the Right-to-Know Law contains an exemption that would prohibit the disclosure of this type of information. Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works and progress, research-related material and scholarly correspondence of the faculty of the state universities and community colleges subject to the Right-to-Know Law are exempt from public disclosure. Furthermore, the Right-to-Know Law cannot be used to circumvent copyright protections. The Penn State Faculty should take this into consideration before making a final recommendation on whether Penn State should be subject to the Right-to-Know Law.
Disclaimer: This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group. The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law. THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE. The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”. The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.