On August 9, 2013, the Commonwealth Court announced its en banc decision in McClintock v. Coatesville Area School District, No. 1262 C.D. 2012. In an opinion by Judge Cohn Jubelirer, the Court announced that when an agency fails to make any response to a Right-to-Know request resulting in a “deemed denial” under 65 P.S. §67.901, no waiver occurs and the agency will still be permitted to raise exemptions before the OOR. The Court based its decision largely on the Supreme Court’s earlier decision in Levy v. Senate of Pennsylvania, 65 A.3d 361 (2013). In short, an agency may ignore or fail to respond to a request, let the five business day response period elapse resulting in a deemed denial under §901, wait out the requester to the see if he/she appeals to the OOR, and if they do, then assert any basis for exemption the agency believes is justified.
In Coatesville, the requester filed four separate requests seeking documents related to a charter school. The district failed to respond to any of the requests within the five business days. The requester then appealed all four deemed denials to the OOR. At the OOR, the district agreed to provide some documents, stated some did not exist and denied producing other documents claiming three exemptions: 1) non-criminal investigation under 708(b)(17), 2) predecisional deliberations under 708(b)(10)(i)(A) and 3) the attorney-client privilege under 305(a)(2). The requester asserted that the district had waived any exemptions for failure to respond to these initial requests within the required statutory time.
The OOR held that, in a deemed denied situation, an agency does not waive the right to assert exemptions on appeal. The OOR differentiated this from the situation in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010). (the agency had asserted one basis for refusing to produce the records in its initial denial and then later asserted additional reasons on appeal.) The OOR then affirmed some of the bases for denial asserted by the school district but ordered some of the other records to be released. The requester appealed to the trial court which basically affirmed the OOR’s decision.
The requester then appealed to the Commonwealth Court. The requester did not challenge the OOR’s determination on the merits of the district’s denials but asserted, as his sole issue, the failure to respond to the requests below and waiver of the ability to assert exemptions upon appeal. The Commonwealth Court rejected the requester’s argument that blatantly ignoring a request deserved some type of sanction, i.e. waiver. The Court found that the Supreme Court in Levy had considered similar arguments and rejected them citing to the Supreme Court’s language that finding waiver here would undermine “the specific legislative intent” to shield various types of documents from disclosure.
The Court also rejected requester’s argument that the overall intent of the RTKL to resolve public record disputes “fairly and expeditiously” would be undermined by not applying waiver. The opinion endorsed the Supreme Court’s expression of due process concerns related to a per se waiver rule. The Court found the Levy rule applies as much when no response is made as to when an incomplete one is made. The Court also found it instructive that the legislature imposed no penalty upon the occurrence of a deemed denial in the statute itself.
Judge Pellegrini wrote a dissenting opinion in which Judge McCullough joined. The President Judge noted that the district had offered no reason why it did not respond timely. The dissent also took issue with the implications of allowing an agency to ignore the law without an explanation and with no resulting consequences. The opinion went on to state that, if the agency could submit a sufficient explanation as to why it had failed to timely respond, waiver could be removed and the agency allowed to assert exemptions. Judge Pellegrini observed that there would be no danger of releasing protected documents as §506 of the law forbids release of documents that are shielded from disclosure by federal or state law or regulations, judicial order decree or privilege. These types of exemptions could be asserted by the agency even though it failed to initially deny a request on this basis. The dissent also found that an agency could raise an argument, in certain circumstances, that release of the documents requested would cause “significant harm to the public interest.” Finally, the opinion noted that third party rights would be protected because the agency cannot waive the rights of a third party, and §707 requires notice to third parties who may wish to assert their own rights or exemptions in such situations.
The ultimate effect of this decision and Levy still remains to be seen. One of the fundamental questions raised by both decisions is when does waiver occur? There is virtually no area of the law where the failure to act within a prescribed period does not, at some point, result in waiver. For now, in the area of the RTKL, when that occurs remains somewhat a mystery, however, once fact-finding occurs, waiver may be present. The courts will draw the line somewhere and this would seem like a logical spot.
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.