On October 3, 2013, the Commonwealth Court issued Staub and the Citizens’ Voice v. City of Wilkes-Barre and LAG Towing, Inc., No. 2140 C.D. 2012 (Pa. Cmwlth. September 12, 2013), an Unreported Memorandum Opinion, penned by President Judge Pellegrini. The court upheld the Luzerne County Court of Common Pleas order directing the City of Wilkes-Barre (“City”) to pay 10% of the costs the Citizens’ Voice newspaper incurred litigating its RTK request. Although Judge Pellegrini included language in footnotes that may soften the impact of this ruling, the ruling still stands as a rare example of the Commonwealth Court upholding an award of attorney’s fees for acts of bad faith under the RTKL.
Andrew Staub, a reporter for the Citizens’ Voice newspaper (collectively “Newspaper”), filed a RTK request with the City seeking certain towing reports and receipts for city-directed tows executed by LAG Towing Inc. (“LAG”) pursuant to a contract between LAG and the City. Following the request, the City notified LAG but did not take any further action. The City later notified the Newspaper that LAG would not be turning over any records because LAG believed that the records were exempt under the RTKL. The City made no independent determination because it did not receive any records. However, an e-mail was attached to the notification LAG sent to the City which put the City on notice that the requested records may not even exist.
The Newspaper appealed to the Office of Open Records (“OOR”) and LAG intervened. The OOR granted the Newspaper’s appeal and issued an order requiring the City to provide all responsive records within 30 days. No records were produced.
The Newspaper then filed a petition with the trial court to enforce the Final Determination of the OOR and sought both attorney’s fees and costs citing Sections 1302 and 1304 of the RTKL. Testimony of officers of the City and LAG allowed the trial court to ultimately conclude that LAG was fully aware that the records did not exist and that the City was aware of a high possibility that the records did not exist. Due to the “wanton and willful” failure to disclose the nonexistence of the records on the part of LAG and the failure of the City to determine whether or not the records existed, the trial court ordered LAG to pay 90% of the Newspaper’s costs and the City to pay the remaining 10%. The City filed an appeal, which LAG did not join.
In its appeal to the Commonwealth Court, the City argued that the trial court erred in imposing fees and costs because it discharged its duty under the RTKL by asking LAG to turn over any records that should have been released and because LAG had the ultimate burden of releasing the requested documents. Judge Pellegrini flatly rejected this argument. He explained that Section 506 of the RTKL imposes a duty upon an agency to take reasonable steps to secure records from its third party contractors and to disclose them to the requester if they are not exempt under another RTKL provision. The City’s actions, acting as a mere conduit between LAG and the Newspaper, did not fulfill these independent duties. For this reason, the court upheld the trial court’s imposition of costs.
The opinion raises a number of interesting issues of its own. First, the opinion provided insight on a procedural issue. In footnote 2, Judge Pellegrini seems to suggest that petitioning the trial court to enforce an OOR order under Section 1302 is not the proper procedure. Judge Pellegrini wrote, “None of the parties have ever challenged the trial court’s jurisdiction to entertain the petition under Section 1302 or its authority to impose the instant attorney fees under sections 1302 and 1304 of the RTKL.” This suggestion, that it is improper to petition the trial court to enforce a Final Determination of the OOR, squarely comports with a ruling made by Judge Nealon of the Lackawanna County Court of Common Pleas in Ledcke v. County of Lackawanna. In Ledcke, Judge Nealon 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. A full discussion of Judge Nealon’s opinion can be found here.
Second, in footnote 6, Judge Pellegrini offers guidance on who bears the burden of proof when a requester appeals an agency’s decision as to records of a third party contractor carrying out a government function. Judge Pellegrini explained that a third party contractor in possession of records relating to its performance of a government function is recast as an agency for purposes of interpreting Section 506(d) of the RTKL, and therefore, bears the burden of proving that a record is exempt before the OOR.
Finally, in his final footnote, footnote 7, Judge Pellegrini seems to suggest that Sections 1304(b) and (c) may not provide a basis for the imposition of fees and costs in the absence of a “frivolous” request or appeal. Subsection (c) may provide a basis for fees and costs, but the trial court did not cite to a “rule of court” upon which it relied. The exact meaning of this footnote is unclear; however, it and footnote 6 point out the need for clearer statutory sanction and enforcement powers under the RTKL.
One thing is clear. When a requester seeks records of a third party contractor, an agency may not merely act as a conduit and sit back and hide behind the third party’s determination. Rather, the agency must take independent action and attempt to fulfill the request if the records are truly public records.
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.