Courts Have Duty to Investigate Agency Responses to Requests for Public Records

A trial court reviewing a final determination of the Office of Open Records (OOR) has a duty to investigate allegations that the agency did not respond to a Right-to-Know Law (RTKL) request in good faith.  Chambersburg Area School District v. Dorsey, No. 1358 C.D. 2013, (Pa. Cmwlth. Aug. 20, 2014).  Where an agency suddenly discovers and discloses responsive records two years after the initial public records request, the trial court has a duty to investigate claims that the agency did not conduct a good faith search for public records when processing the request.

A requester filed a public records request with the School District for documents related to an after school program. The School District disclosed several responsive documents, but denied access to certain emails that were allegedly privileged attorney-client communications.  Several months later, the requester filed an identical request, and the School District did not respond. The requester appealed to the OOR. The OOR ordered the School District to disclose the emails because the School District argued that it did not have to respond to the redundant request rather than submitting evidence to show the emails were protected by the attorney-client privilege.

The School District appealed to the Court of Common Pleas (the trial court).   The trial court conducted an in camera review and determined that the emails were exempt from public disclosure because the emails contained attorney-client communications.   During the pendency of the proceedings in the trial court, some two years after the original request, the School District disclosed approximately 3,600 pages of emails to the requester that had not been previously discovered.  The requester filed a motion to supplement the record, seeking to prove that the School District had not conducted a good faith search for responsive records at the time it received the initial request.  The trial court quashed the requester’s motion to supplement the record.

The Commonwealth Court affirmed that the trial court acted properly by conducting an in camera review to determine that the emails contained attorney-client communications. However, the Commonwealth Court found the trial court abused its discretion by quashing the requester’s motion to supplement the record. The case was remanded to the trial court to determine whether the agency complied with its duty under Section 901 of the RTKL to make a good faith effort to determine whether it had possession, custody or control of requested public records at the time it received the initial request.

This case demonstrates that agencies must be careful when searching for records in response to an RTKL request. Recently, the Pittsburgh Post-Gazette reported that a spokesperson for the Pennsylvania Office of Administration said agency officials “don’t resort to doing searches or scans” of servers unless an employee is unavailable or isn’t sure what documents should be forwarded for review. State and local agencies that use this technique may want to reconsider. The agency in this case received a get-out-of-jail-free card when the Commonwealth Court noted that trial court cannot award attorneys fees to the requester, even if it finds the agency acted in bad faith, because the requester did not prevail on the merits of the attorney-client privilege issue. The next agency that stumbles across public records years after concluding such records do not exist may not be so lucky.

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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