The OOR is Still Required to Consider a Requester’s Appeal on the Merits Prior to Appellate Review

The Commonwealth Court held in Kokinda v. County of Lehigh, No. 1146 C.D. 2014 (Pa. Cmwlth. Jan. 8, 2014) that the Pennsylvania appellate courts’ broad scope of review in RTKL cases does not eliminate the OOR’s obligation to carry out fact finding and consider a requester’s appeal on the merits.  The holding reaffirms the OOR’s importance within the RTKL hierarchy.

A Requester appealed to the OOR, following the denial of his RTK request.  The OOR dismissed the appeal because Requester failed to include a copy of his request and/or the agency’s response as required by the OOR’s “Interim Guidelines.” [1]  The denial letter informed Requester that he could re-file the appeal if the 15-day appeal period had not expired, or file an appeal with the trial court. Requester filed an appeal with the trial court.  The trial court, citing its authority to conduct a de novo review, ignored the procedural deficiencies cited by the OOR and ruled on the merits of the case.  Requester appealed to the Commonwealth Court.

The Commonwealth Court stated that the sole issue before the trial court should have been whether Requester’s appeal was properly dismissed by the OOR for failure to include a copy of the request and/or agency response.  The court held that the procedural requirements relied upon for dismissal under the Interim Guidelines did not carry force of law.  Thus, there was no legal basis for dismissal.

The court then commented on the issue of whether an appellate court can address the merits of a RTKL case without the OOR first considering the merits of the case.  Quoting Barnett v. Department of Public Welfare, the court stated that the broad scope of review afforded to the appellate courts under Bowling v. OOR does not mandate that we eliminate the statutory requirement that the OOR first consider a requester’s appeal on the merits before we undertake appellate review.

Thus, the court made it clear that the OOR may not shirk its frontline responsibilities of making factual and legal determinations in RTKL cases.  The case was remanded to the OOR for the parties to present evidence and to allow the OOR to make a determination on the merits.

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.

[1] In 2009, the OOR submitted proposed regulations to the Office of General Counsel in order to initiate the process though which regulations become law.  A lack of statutory clarity as to the OOR’s status as an “executive agency” or “independent agency” has stalled the approval process. Because the proposed regulations have not been approved they are not afforded force of law.  The Interim Guidelines largely mirror the proposed regulations.  For further discussion on this topic see Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).

Subscribe to our Newsletter