The Supreme Court Establishes the Standard and Scope of Review in Right-to-Know Cases

On August 20, 2013, the Pennsylvania Supreme Court handed down the long-awaited decision in Bowling v. OOR/PEMA, No. 20 MAP 2011.  The decision comes almost two years since it was argued on September 13, 2011.  In the 41 page majority opinion authored by Justice McCaffery and joined in by Justices Saylor (concurring), Eakin and Baer affirms the holdings penned by Judge Simpson of the Commonwealth Court, 990 A.2d 813 (Pa. Cmwlth. 2010).  In addition to Justice Saylor’s concurring opinion, both Chief Justice Castille and Justice Todd filed dissenting opinions.

The majority held that the standard of review for “Chapter 13 courts” (the Commonwealth Court and Common Pleas Courts hearing appeals from the OOR or special appeals officers under the RTKL) is de novo.  The scope of review is “broad or plenary.”  In essence, the Supreme Court has held that the final determinations of the OOR are not entitled to deference, and “Chapter 13 courts” may substitute their own findings of fact and conclusions of law for those of the OOR as they see fit based upon the evidence and record before them.

The Court takes particular note of the statutory vacuum created by the legislature within the RTKL in the lack of procedural guidance and the “loose” nature in which the OOR is permitted to conduct review of appeals.  As it did in Levy, the Court raises due process concerns, as well.  The ability of appeals officers at the OOR to admit or deny evidence at their discretion and the statutory language making the holdings of hearings discretionary undermined, in the Court’s view, the argument that the OOR’s determinations should be reviewed with any deference.  On the other hand, however, the Court indicates that the large number of cases handled by the OOR gives some indication that the statutory scheme enacted by the legislature does work for the most part.

The decision also seems to lay to rest any issues as to whether the “Chapter 13 courts” can conduct in-camera review or can remand proceedings back to the OOR for further proceedings.  Not so obvious, but, in the opinion of this author a logical reading of the holding, is a tacit approval of such procedures in the OOR.  This will remain to be seen, however.

An exhaustive review of the Opinion is beyond the scope of this short blurb.  A more detailed analysis will be made available later.

Justice Saylor’s concurring opinion notes that some deference may be in order if “OOR determinations reflect a consistent and reasonable approach in fleshing out the boundaries of the statutory exemptions from disclosure in the myriad factual scenarios arising on a daily basis before the agency.”  Justice Saylor indicates he would favor some measure of deference in these areas.  He points out, as did the majority, the material inconsistencies in the RTKL relating to what standard or scope of review is to be applied and applauds the Commonwealth Court’s opinion below which the majority fundamentally affirms.  He does point out the need for “legislative refinement” however.

Chief Justice Castille, in his dissent, is more direct.  He scolds the General Assembly for ambiguous directives regarding standard and scope of review.  He aligns himself more with Justice Todd’s dissenting opinion where he states, consistent with normal appellate jurisdiction, that decisions of the OOR should be in the appellate jurisdiction of the Commonwealth Court, if Commonwealth agencies are involved, and in the Courts of Common Pleas, if local agencies are involved.  He would defer to the OOR’s role as a fact finder.  He would also approve of remand where the OOR fails to hold a hearing and where the reviewing court feels additional findings of fact are required.  He again scolds the legislature for failing to establish a “defined means of judicial review.”  He notes that the “dream of streamlined review has been thwarted by deficiencies in the law and the OOR’s “apparent inefficacy and inconsistency in performing its duties”.  He notes that the legislature could not have envisioned a “de novo judicial review following an administrative process” as the very nature of the RTKL envisions a streamlined, expeditious procedure.  De novo review, as he points out, will only add to delay and expense, the antithesis of what the law envisioned.

He envisions the Commonwealth Court being required to hold numerous evidentiary fact-bound hearings in routine matters.  He also addresses the unintended consequence of the majority’s holding that, if the Commonwealth Court conducts a de novo review of appeals from Commonwealth agency matters, then the parties may have a direct right of appeal to the Supreme Court, as opposed to having to petition for allowance of appeal, a situation that the Supreme Court does not relish.  He threatens the need to “erect a screening mechanism to avoid the inevitable inundation of fact bound appeals.”

He chides the OOR for failing to promulgate regulations to govern the administrative appeal process and notes that it is not the Court’s obligation to make the required adjustments to the RTKL on a case by case basis.  He concludes by noting that he would entertain reversing all OOR decisions per curiam and directing that a process for a meaningful appellate review be adopted.

Justice Todd’s dissent, although gentler than Chief Justice Castille’s, points out that appellate review should be just that pursuant to traditional and issue specific standards of review.  She points out that since the legislature discussed what standards of review do not apply (i.e. the Administrative Procedures Act), the court is free to establish an appropriate standard of review.  She also expresses concern that a de novo review is going to add to delay and expense of unrepresented requesters who seek access to public records, the very thing the new law was attempting to prevent or at least minimize.  She also believes that several provisions of the Act, Sections 708 and 1102(a)(4), give credence to some degree of deference to OOR decisions, particularly on a fact finding basis.

Justice Todd argues that when reviewing factual determinations, the appellate court should be bound by those factual findings that are supported by competent evidence.  Pure questions of law would be reviewed under a traditional de novo standard.  The ultimate decision to release records would be reviewed under an abuse of discretion standard.  She believes the OOR in these instances is entitled to a certain level of deference which the majority opinion removes.

The decision in Bowling by the Supreme Court opens up a myriad of questions.  This decision combined with the Commonwealth Court’s recent decision in McClintock v. Coatesville Area School District, raises the serious question of what effect these combined decisions will have on the OOR.  Consistent throughout this decision, Levy and several decisions of the Commonwealth Court, is extreme frustration over fundamental deficiencies in the RTKL, particularly in the procedural realm.  There is also a shared level of frustration with the OOR in the manner in which it conducts its review of appeals (no regulations, no hearings).  With a de novo standard of review, what will happen to the ability of the OOR to determine public record issues with some degree of finality and allowing the avoidance of a costly and time consuming appeal process which agencies are much better equipped to endure than the average citizen requester?  Also, with a de novo standard of review and almost unlimited scope of review, of what value is an OOR final determination?  The full effect remains to be seen.

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.

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