Courts Continue to Wrestle With Electronic Record and Procedural Issues In Right-to-Know Cases

Issues surrounding electronic records and procedure continue to occupy the courts four years into the Right-to-Know Law (RTKL).   In January, the Commonwealth Court determined that the 5 day response period to which an agency is held in responding to a Right-to-Know request under Section 901 does not begin to run until the request is received by the agency’s designated Open Records Officer.   Receipt of the request by any other officer or employee of the agency does not begin the response period.  In Commonwealth of Pennsylvania Office of the Governor v. Sean Donahue and the Office of Open Records, No. 376 M.D. 2012, decided January 23, 2013, the Commonwealth Court held that the five-day timeframe did not commence until actual receipt of the request by the open-records officer.   The court rejected the OOR’s position that the time period under Section 901 commenced when any agency employee receives the request.

Therefore, it is going to be imperative upon requesters to be certain that they identify correctly who the open-records officer of the agency to whom they are submitting their request is and that the request be submitted directly to that person.

Two trial court opinions also decided novel and potentially far-reaching issues under the Law.  A trial court in Philadelphia has concluded that metadata is subject to public disclosure under the RTKL.  Scott v. Southeastern Pennsylvania Transportation Authority (Phila. C.C.P., 8/3/2012).  In that court’s opinion, an agency must honor a request to provide an electronic document in the format in which the document was originally created including its metadata.

Metadata is “information that provides information about other data.”  See:  Examples of metadata include an electronic document’s name, location, format, and size.  This type of information is embedded into the electronic document, but it cannot be seen when the document is printed out.  Metadata can be removed or “scrubbed” from an electronic document by converting the document from its original format to another format such as Portable Document Format (.PDF).  Metadata can be a useful tool in determining if an electronic document was altered.

The Scott case involved a request for emails.  The requester specifically requested that the emails be provided in their “original format.”  The agency granted the request but provided the emails in .PDF file format rather than their original format.  The Open Records Office affirmed the agency’s decision and the requester appealed.  Since no appellate court in Pennsylvania had addressed the issue of whether metadata is a “public record” as defined by the RTKL, the trial court reviewed court decisions from other states with open records laws similar to the RTKL.  The trial court found there is “… an emerging national consensus on the role of metadata – namely, that metadata is fundamentally a part of the computer file in which it is embedded.  Absent particular concerns about usability, metadata is presumptively discoverable, especially where the requesting party specifically requests documents in their original or ‘native’ format.”

In light of the reasoning adopted by courts in other states, the trial court determined that the embedded metadata was an inseparable part of the requested e-mails.  It ordered SEPTA to disclose the e-mails to the requester in their original format.  The case is currently on appeal to the Commonwealth Court.

Finally, Judge Nealon in Lackawanna County examined the question of how a successful requester, who has won a determination from the Open Records Office requiring an agency to turn over records, may force that turnover when the agency refuses to do so.  In Ledcke v. County of Lackwanna, issued 2/7/13 the court held 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.  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 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.

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