On November 10, the Supreme Court announced its decision in the case of Gaming Control Board v. Office of Open Records. The decision increases the burden on requesters to make certain that a request for records be addressed to the Open Records Officer of the agency involved and received by him/her in order to trigger the protections of and the deadlines required under the RTKL.
The case arises out of a communication from an individual to the Pennsylvania Gaming Control Board. That individual forwarded an email to the Press Aide for the Control Board asking for permission to speak at an upcoming public hearing and also for copies of various communications. The Press Aide did not forward the record request portion to the Board’s Open Records Officer but did respond to the request to speak. After five business days had passed, the requester filed an appeal to the Office of Open Records claiming that his request had been deemed denied under Section 901. The Board argued before the OOR that no deemed denial had occurred because the request was not a proper request which would trigger the response time under the RTKL. The OOR disagreed and ordered a release of the records requested.
The Board appealed to the Commonwealth Court which affirmed the OOR in a 4-3 decision. The majority held that considering the intent and nature of the RTKL, that any request forwarded for records to an agency should be presumed to be a Right-to-Know request. This holding sparked the observation by President Judge Pellegrini indicating that such a holding “would make an unaddressed request written on the back of a brown paper bag and given to a PennDOT plow driver by the side of the road on a snowy winter night a valid Right-to-Know request.”
On appeal, the Supreme Court reversed holding that the language of Sections 702 and 703 of RTKL placed the burden clearly on the requester to make a proper Right-to-Know request and to see that it is provided to the agency’s Open Records Officer. The Court held that the requester must make “at least some positive indication that the intended recipient of the written request is the agency’s Open Records Officer.” In addressing the language in Section 703 which states that “employees of an agency shall be directed to forward requests for records to the Open Records Officer,” the Court summarily stated that such language does not nullify the burden on the requester to address the request to the Open Records Officer as required by the same provision. The court noted that the legislature could more definitively state the obligations of other employees to receive and forward requests to the Open Records Officer.
The holding significantly increases the burden on requesters to be certain that they make a proper Right-to-Know request and that it is addressed to and, at least, a valid effort is made to see it is delivered to the agency’s Open Records Officer. Interestingly, although it has now died with the last legislative session, Senate Bill 444 introduced by now Former Majority Leader Senator Pileggi, would have included a provision that would have allowed such requests to be addressed to the Open Records Officer or to the Administrative Office of the agency. With the change in leadership in the Senate now, it remains to be seen if this provision, or any of the proposed amendments to the RTKL, will see the light of day next year. Until then, caveat requester.
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.