Top Ten Most Significant Right-to-Know Cases of 2013 … and Coming Attractions for 2014

Top Ten Most Significant Right-to-Know Cases of 2013

1.            Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013)(McCaffery, J.; Saylor, J. concurring; Castille, J. & Todd, J. dissenting).

The Supreme Court finally established the standard and scope of review in right-to-know cases by affirming the opinion of Commonwealth Court Judge Robin Simpson from 2010.  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 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.

In his dissent, Chief Justice Castille predicted the majority’s holding will require the Commonwealth Court to hold evidentiary hearings and that the Supreme Court could be flooded with fact-based direct appeals.  It remains to be seen whether either Court will allow these procedural “nightmares” to occur and/or whether the legislature will attempt to address these procedural problems.  Some relief, however, may already be on the way via the Commonwealth Court’s recent remand decision in Levy v. Senate of Pennsylvania.

Finally, the decision seems to lay to rest claims of agencies that “Chapter 13 courts” cannot conduct in camera review or remand proceedings back to the OOR.  The decision also appears to reject some agencies’ practice of declaring an entire record exempt when redaction could eliminate protected portions only.  A logical reading of the holding also suggests a tacit approval of in camera review in the OOR.

2.            Levy v. Senate of Pennsylvania, 65 A.3d 361 (Pa. 2013)(Baer, J.; Eakin, J. & Todd, J. concurring).

The Supreme Court addressed whether the Senate must disclose legal invoices reflecting the Senate’s payments to outside law firms for services provided to individual state Senators and employees caught up in the “Bonusgate” scandal.

The Supreme Court affirmed the Commonwealth Court’s holding that a client’s identity is generally not privileged.  The attorney-client privilege only applies if divulging the client’s name will disclose either legal advice or confidential communications.  Application of the attorney-client privilege involves case specific determinations of whether revealing the otherwise non-privileged identity will result in the disclosure of privileged information based upon what has been previously disclosed.  The same analysis applies to the general description of legal services.   The Supreme Court, however, rejected the per se waiver rule of Signature Information v. Aston Township.  The case was remanded to the Commonwealth Court to consider other arguments raised by the Senate for denial.  Note:  The Commonwealth Court issued its remand decision on January 15, 2014 and rejected the additional arguments raised by the Senate and ordered the records released.  See Commonwealth Court Reestablishes Wavier in RTKL Cases.

Note:  In a related waiver ruling, the Commonwealth Court relied on Levy when it held that no waiver occurs when an agency does not respond to a Right-to-Know request.   See McClintock v. Coatesville Area Sch. Dist., 74 A.3d 378 (Pa. Cmwlth. 2013)(en banc, Cohn Jubelirer, J.; Pellegrini, P.J., McCullough, J. dissenting).  The result of the McClintock opinion seems to allow an agency to ignore a request, let the five business day response period elapse resulting in a deemed denial under Section 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.

3.            Office of Governor v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013)(en banc, Pellegrini, P.J.; Cohn Jubelirer, J. concurring; McCullough, J. concurring and dissenting) and Office of Lieutenant Governor v. Mohn, 67 A.3d 123 (Pa. Cmwlth. 2013)(en banc, Pellegrini, P.J.; Cohn Jubelirer, J. concurring; McCullough, J. concurring and dissenting; Leavitt, J., & Simpson, J., concurring and dissenting). [1]

In this pair of sister cases, the Commonwealth Court addressed requests for the names, addresses, e-mail addresses, and/or telephone numbers of the Governor, Lieutenant Governor, and employees of their offices.  The Commonwealth Court held: (1) there is no right to privacy in a public employee’s home address under the Pennsylvania Constitution, and the personal security exemption of the RTKL did not preclude release of the government employees’ home addresses under the facts; (2) conclusory statements in a government affidavit did not prove that the release of employees’ middle names would be reasonably likely to result in a substantial and demonstrable risk of harm, thus the personal security exemption did not preclude release of employees’ middle names; (3) the personal identification information exception to the RTKL precluded the release of agency-issued “personal” e-mail addresses and cellular telephone numbers, although used for governmental purposes (the court noted that, other than the actual e-mail address, a requester would be entitled to request e-mails from that account under the RTKL, which were public records).  The Court did not explain how an e-mail request could be made without knowing the e-mail address where they may exist.  See, Iverson.

4.            Ledcke v. County of Lackawanna, No. 12 CV 6791 (Lackawanna CCP, February 7, 2013)(Nealon, J.).

This decision provides a much needed roadmap for the enforcement of OOR final determinations.  The court addressed the issue of whether a “Petition to Enforce Final Determination of OOR” was the proper procedure for enforcing an OOR final determination that had not been appealed by a local agency during the 30 day appeal period.  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, rather than a “Petition to Enforce.”

5.            Breslin v. Dickinson Township, 68 A.3d 49 (Pa. Cmwlth. 2013)(Cohn Jubelirer, J.).

The Commonwealth Court examined the scope of an agency’s duty to make inquiries to former employees or officials in possession of an agency’s public records.  The Court recognized that agencies have a duty to retrieve public records that are not in their possession, custody, or control if: (a) the public record is in the possession of a third party that has a contract with the agency to perform a governmental function, and the information directly relates to the performance of that function; or (b) the public record is in the possession of one of the agency’s current officials or employees.  However, that duty does not extend to public records that are in the possession of former officials or employees, but the Court noted that the RTKL does not forbid an agency from making such inquiries of former officials and employees.  The Court also noted an agency solicitor, unlike an agency official or employee, may have a continuing duty to retain and supply public records after the termination of representation.

6.            Bagwell v. Pennsylvania Dep’t of Educ., 76 A.3d 81 (Pa. Cmwlth. 2013)(en banc, Simpson, J.; Leadbetter, J. dissenting).[2]

The Commonwealth Court held information received by the Secretary of Education in his capacity as an ex officio member of the Penn State University Board of Trustees is a record of the Department of Education subject to public disclosure under the RTKL.  The court’s decision has major implications for public access to records created by Penn State University, as well as the other state-related institutions, which include the University of Pittsburgh, Temple University, and Lincoln University.  The case is currently on remand in the OOR to determine whether the requested records are subject to certain exemptions from public disclosure.

7.            Allegheny County Department of Administrative Services v. Parsons (ASCI II), 61 A.3d 336 (Pa. Cmwlth. 2013)(Simpson, J.).

The Commonwealth Court considered a request for records of a third party government contractor.  Under section 506(d) a third party occupies the same position as an agency for purposes of access under the RTKL when two elements are met: (1) the third party performs a governmental function on behalf of the agency; and (2) the information sought directly relates to that function.  The court’s analysis focused on the “direct relationship” prong, as the parties all agreed that ASCI performed a governmental function.

The court determined that the requested information, the birth dates, dates of hire, and names of ASCI’s employees, did not bear the necessary connection to the governmental function because the uncontroverted evidence established that the information was not relevant to contract entry, management, supervision, or the employees’ performance of the governmental function of social services, the crucial nexus needed to convert private records into potentially public ones.

8.            Staub and the Citizens’ Voice v. City of Wilkes-Barre and LAG Towing, Inc., No. 2140 C.D. 2012 (Pa. Cmwlth. Sept. 12, 2013)(Pellegrini, J.)(unreported memorandum opinion).

The Commonwealth Court affirmed an award of attorneys fees where an agency and a third party contractor allowed a requester to expend time and effort (almost a year) appealing an agency denial when both the third party contractor and the agency were aware of at least a high probability that the records did not exist.  The court 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 court held that the City of Wilkes-Barre’s actions – acting as a mere conduit between the third party and the requester – did not fulfill these independent duties.  For this reason, the court upheld the trial court’s imposition of 10% of the requesters’ costs on the City (the trial court’s imposition of 90% of the requesters’ costs to the third party was not appealed).

9.            Office of Governor v. Donahue, 59 A.3d 1165 (Pa. Cmwlth. 2013)(Brobson, J.).

The Commonwealth Court determined that the 5-day response period to which an agency is held in responding to a request under Section 901 does not begin to run until the request is actually received by the agency’s designated 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. Agency Open Records Officers should keep detailed receipt records in order to substantiate the protections provided by this holding.

10.         Smith v. Township of Richmond, — A.3d —-, No. 34 MAP 2013 WL 6598713 (Pa. Dec. 17, 2013)(Saylor, J.).

The Supreme Court held that the Sunshine Act does not prohibit agencies from convening with litigation parties behind closed doors if no “deliberation” or “official action” occurs.  The Court held that gatherings held solely for the purpose of collecting information or educating agency members about an issue do not fit the description of “deliberations,” notwithstanding that the information may later assist the members in taking official action on the issue.  Although this case did not directly address any provisions under the Right-to-Know Law, it may have implications where officials convene via email.  If the public officials are not “deliberating” in violation of the Sunshine Act, their communications may not qualify as predecisional deliberations under the RTKL.

Honorable Mention:

Mid Valley School Dist. v. Warshawer, No. 13 CV 1528 (Lackawanna CCP, 2013)(Nealon, J.)(disclosure requirements of the RTKL supersede discovery restrictions contained in a private contractual agreement between a school district and a contractor).

Meguerian v. Office of Atty. Gen., 882 C.D. 2013, 2013 WL 6046978 (Pa. Cmwlth. Nov. 14, 2013)(Simpson, J.)(emails sent or received by agency employee in connection with employee’s former employment with another agency are not “records” of the current agency).

Coming Attractions

1.            Pennsylvania Gaming Control Board v. Office of Open Records, 48 A.3d 503 (Pa. Cmwlth. 2012), petition for allowance of appeal granted, 74 A.3d 1027 (Pa. 2013).

The Supreme Court has granted the Petition for Allowance of Appeal in this case to address whether the Commonwealth Court erred when it held that any written request for records received by a government agency is to be considered a Right–to–Know Law request even when the request does not meet the Law’s bare minimum requirements for triggering the Law’s application and appeal rights.

2.            Pennsylvania State Educ. of Ass’n ex rel. Wilson v. Com., Dep’t of Cmty. & Econ. Dev., 50 A.3d 1263 (Pa. 2012).

In August 2012, the Supreme Court remanded this case (began in 2009) to the Commonwealth Court to determine whether records containing the home addresses of public school employees are subject to public disclosure under the Right-to-Know Law.   The Raffle and Mohn decisions will likely have an impact on the privacy/constitutional issues raised here.

[1] The authors of this article represented Raffle and Mohn.

[2] The authors of this article represented Bagwell.

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