Top Ten Most Significant Right-to-Know Cases of 2014 … and Coming Attractions for 2015

INTRO:  While the present version of the Right-to-Know Law celebrated its sixth anniversary recently, Pennsylvania’s courts continue to address basic procedural issues resulting from the law’s ambiguities.   The Supreme Court resolved when a RTK request is a “request” and when the five day clock begins to run. The Commonwealth Court continued to define the appropriate procedures for administrative and judicial review, including the necessity for the OOR or trial courts to establish a complete record via in camera review, and for agencies to preserve issues at the administrative level. The Commonwealth Court also addressed important substantive issues including the protections for records of government contractors, and the scope of the exceptions for non-criminal investigations and predecisional deliberations.

Top Ten Most Significant Right-to-Know Cases of 2014

1.  Com. v. Office of Open Records (Schneller), 103 A.3d 1276 (Pa. 2014)(Castille, C.J.)(Stevens, J. concurring opinion).

A requester must address a records request to the agency open records officer to trigger the rights and obligations under the Right-to-Know Law. Schneller built on the Supreme Court’s earlier holding that the five business day response period under RTKL Section 701 does not begin to run until the agency open records officer receives the request. Com., Office of Governor v. Donahue, 98 A.3d 1223 (Pa. 2014)(Baer, J.)(Castille, C.J. concurring op.)( Todd, J. concurring op.) and (Stevens, J. concurring op.). These holdings significantly increase 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. If the agency’s open records officer never receives the request, the time limitations under the RTKL do not begin and the agency has no obligation to respond and the requester has no right to appeal.

2.  Com., Dep’t of Pub. Welfare v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014)(Simpson, J. en banc)(McCullough, J., concurring and dissenting) appeal granted, No. 129 EAL 2014, 2014 WL 5420540 (Pa. Oct. 23, 2014); Dental Benefit Providers, Inc. v. Eiseman, 86 A.3d 932 (Pa. Cmwlth. 2014)(Simpson, J. en banc)(McCullough, J., dissenting) appeal granted sub nom. Dental Ben. Providers, Inc. v. Eiseman, No. 132 EAL 2014, 2014 WL 5420537 (Pa. Oct. 23, 2014).

The Commonwealth Court examined the protections afforded under the RTKL for information submitted to agencies by government contractors in relation to work performed for the public.   Although the Eiseman cases deal specifically with DPW’s outsourcing of the administration of Medicaid, the holdings impact all government contractor records. For example, financial records documenting funds paid by an agency to a government contractor are public records, even if the records contain the contractor’s privileged and confidential information, because the public has a Right-to-Know the direct disbursement of public funds. However, records documenting the government contactor’s use of funds once received are entitled to greater protection because the funds lose their character as public funds when they leave the agency and enter the private sector. RTKL Section 506(d) does not reach funds paid to subcontractors unless the funds are directly related, rather than ancillary, to the government function performed under the contract.

In another case involving commercial information, the Commonwealth Court affirmed the non-public status for hotel tax records including amounts hotels paid in local excise tax, yearly totals of room rental tax collected, and occupancy data on a year by year basis. Thirty, Inc.v. Smart, No. 805 C.D. 2013, 2014 WL 1477646, (Pa. Cmwlth. Apr. 14, 2014)(McGinley, J., non-published memorandum op.).

3.  Com., Office of Open Records v. Center Twp., 95 A.3d 354 (Pa. Cmwlth. 2014)(McCullough, J., en banc).

The Office of Open Records (OOR) may conduct private screenings (in camera review) to confirm records are exempt under the grounds asserted by an agency. The Commonwealth Court granted summary relief to OOR in enforcement proceedings brought to compel the Township to disclose records for in-camera review. When in camera review occurs, the Commonwealth Court expects a sufficient record by the OOR or trial court to allow proper appellate analysis and review. Heintzelman v. Pennsylvania Dept. of Community and Economic Development, 512 C.D. 2014 (Pa. Cmwlth. Oct. 30, 2014)(Simpson, J., unreported memorandum op.).

4.  Dep’t of Labor & Indus. v. Heltzel, 90 A.3d 823 (Pa. Cmwlth. 2014)(Simpson, J., en banc)(Pellegrini, P.J. dissenting op.)(Brobson, J., dissenting op., joined by Leavitt, J.).

The Commonwealth Court examined the application of the RTKL in relation to other public record laws. The court held the Department of Labor and Industry (L&I) did not have to release records related to hazardous chemicals, which are available for public inspection under the Federal Emergency Planning and Community Right–to–Know Act (EPCRA), 42 U.S.C. §§ 11001-50, if the records are otherwise exempt under the RTKL’s exceptions related to homeland and infrastructure security. Although the records are available under the EPCRA at specified federal facilities, the records are not automatically available from L&I because the EPCRA does not unequivocally establish the public nature of the records. The court remanded the case to the OOR to determine whether L&I’s independent disclosure of the records will endanger homeland or infrastructure security.

5.  Levy v. Senate of Pennsylvania, 94 A.3d 436 (Pa. Cmwlth. 2014)(Simpson, J.).

The Commonwealth Court reestablished waiver in RTKL proceedings. An agency waives any challenges to public disclosure that the agency does not raise in the initial fact-finding proceedings, which usually occurs at the Office of Open Records. The court also held that most publicly-paid attorney invoices are not privileged under the RTKL. General descriptions of legal services are not work-product. The billing descriptions and names of state Senators or Senate staff seeking advice related to criminal investigations were not exempt under the RTKL’s criminal investigation exception.

6.  McGowan v. Pennsylvania Dep’t of Envtl. Prot., 103 A.3d 374 (Pa. Cmwlth. 2014)(McCullough, J.) reargument denied (Dec. 19, 2014).

The Commonwealth Court confirmed the predecisional deliberation exception does not exempt purely factual information from public disclosure. If a document contains predecisional deliberations, the agency should generally redact the deliberative discussions and disclose the remainder of the document.   Purely factual material may only be withheld from public disclosure where “disclosure would so expose the deliberative process within an agency that it must be deemed exempted;” or, in other words, when disclosure of the factual material “would be tantamount to the publication of the [agency’s] evaluation and analysis.”

7.  Dep’t of Pub. Welfare v. Chawaga, 91 A.3d 257 (Pa. Cmwlth. 2014)(Friedman, J.)

The Commonwealth Court clarified that the non-criminal investigation exception only applies to “investigations” that are either (i) a “systematic or searching inquiry, a detailed examination” or, (ii) an “official probe” conducted by an agency acting within its legislatively granted fact-finding and investigative powers. The agency’s performance audit of a government contractor was not exempt under non-criminal investigation exception because the one-time inquiry into contractor’s finances was neither a systematic, searching inquiry nor part of DPW’s legislatively granted fact-finding or investigative powers. This decision explained the “systematic” search test set out in the Court’s earlier decision in Johnson v. Pennsylvania Convention Ctr. Auth., 49 A.3d 920 (Pa. Cmwlth. 2012).

8.  Chambersburg Area Sch. Dist. v. Dorsey, 97 A.3d 1281 (Pa. Cmwlth. 2014)(Cohn Jubelirer, J.).

Trial court reviewing OOR’s final determination had duty to investigate requester’s allegations that agency did not respond to request in good faith where agency suddenly discovered and disclosed responsive records two years into appeal from denial of initial public records request. Agencies must be careful when searching for records in response to an RTKL request. Although the agency in this case was immune from a claim for attorneys’ fees because the newly discovered emails were exempt under attorney-client privilege, an agency that fails to conduct a diligent search may be subject to attorneys’ fees or civil penalties under RTKL Sections 1304-1305.   See Staub v. City of Wilkes-Barre, et al., NO. 2140 CD 12 (Pa. Cmwlth. October 3, 2013).

9.  Lackawanna County Government Study Com’n v. The Scranton Times, L.P., 2014 WL 5930128 (Lackawanna County C.C.P.)(Nealon, J., Nov. 14, 2014).

The Lackawanna County Court of Common Pleas sua sponte appointed of an outside computer expert to assist the court in determining the ability to retrieve “lost” emails. A consultant for the Lackawanna County Government Study Commission received emails from various parties during the course of an investigation and performance audit. He testified that he had computer issues, and in the process of fixing those issues, he lost data including the emails. The County and the Requester argued the emails could be retrieved from the consultant’s hard drive even if the emails had been inadvertently deleted.

The Court indicated that the technical issues were beyond the expertise of the Court and that, as in similar matters, the Court had the authority to retain an expert in the field to examine the computer at issue and advise the Court as to whether such records could be retrieved despite the earlier issues encountered. As the ultimate fact-finder under Bowling v. Office of Open Records, 621 Pa. 133, 75 A.3d 453 (2013), the Order by Judge Nealon is well founded as the court points out this is done in other areas of law. There is no good reason why it cannot be done in RTKL cases as well. As access to electronic records will be an ever increasing issue under RTK cases, let’s hope that this sage solution by Judge Nealon will be followed by other courts as those issues arise.

10.  Com., Governor’s Office of Admin. v. Pennsylvanians for Union Reform, Inc., 105 A.3d 61 (Pa. Cmwlth. 2014)(Covey, J.,)(Cohn Jubelirer, dissenting op.)(the authors of this article represented Pennsylvanians for Union Reform in this matter).

The court held a public employee’s county of residence is a public record, even where employee’s home address is properly withheld from public disclosure, unless the agency proves that disclosure of the county of residence will likely result in personal harm to an individual.

Honorable Mention:

Kokinda v. Cnty. of Lehigh, No. 1146 C.D. 2013, 2014 WL 61317, (Pa. Cmwlth. Jan. 8, 2014)(Covey, J., en banc, non-reported memorandum opinion). The OOR is required to consider a requester’s appeal on the merits prior to appellate review.

Pennsylvania State Police v. McGill, 83 A.3d 476 (Pa. Cmwlth. 2014)(Pellegrini, J., en banc)(Leavitt, J., dissenting op.) Pennsylvania State Police did not have to release the names and departments of police officers accredited by the Municipal Police Officer’s Education and Training Commission because redacting the names of officers engaged in undercover law enforcement activities would require PSP to create a record.

Sporish v. Springfield Twp., No. 421 C.D. 2014, 2014 WL 4243528, (Pa. Cmwlth. Aug. 27, 2014)(Brobson, J.)(unpublished memorandum opinion). Appeal from denial of request for police incident reports remanded to trial court to conduct in camera review to determine if incident reports were equivalent to public police blotters or exempt criminal investigative records.

Pennsylvania Pub. Util. Comm’n v. Seder, 106 A.3d 193 (Pa. Cmwlth. 2014)(Leadbetter, J.)(the authors of this article represented the respondents in this matter). Documents related to an informal investigation of PPL conducted by PUC’s Bureau of Investigation & Enforcement are not subject to public disclosure under Section 335(d) of the Public Utility Code, and are exempt from public disclosure under RTKL non-criminal investigation exception. Note a petition for allowance of appeal is pending.

Glunk v. Dep’t of State, 102 A.3d 605 (Pa. Cmwlth. 2014)(McCullough, J.), reconsideration denied (Dec. 8, 2014). E-mail chain between Department of State officials determining whether to respond to licensee’s inquiry letter was exempt under predecisional deliberation exception.

Bagwell v. Pennsylvania Dep’t of Educ., 103 A.3d 409 (Pa. Commw. Ct. 2014)(Simpson, J. en banc)(McCullough, J. concurring op.), reargument denied (Dec. 18, 2014) (the authors of this article represented Bagwell in this matter). Emails received by Secretary of Education as ex-officio member of Pennsylvania State University Board of Trustees from law firm retained by university to investigate Jerry Sandusky scandal were exempt under attorney-client privilege and work-product doctrine even though university waived attorney-client privilege and disclosed or permitted disclosure of materials related to same subject in cooperation with external investigations. Note a petition for allowance of appeal is pending.

McCord v. Pennsylvanians for Union Reform, 100 A.3d 755 (Pa. Cmwlth. 2014)(Covey, J.)(the authors of this article represent Pennsylvanians for Union Reform in this matter). State Treasurer stated claim upon which relief may be granted for declaration and injunction to enjoin requester from pursuing mandamus to obtain public records under Section 614 of Administrative Code of 1929 where executive agency employee list may be subject to RTKL’s exemptions. This case has yet to reach final judgment.

Coming Attractions

1.  The Supreme Court has accepted review of the Eiseman cases to clarify the public availability of government contractor’s records. The Commonwealth Court’s decision provides broad protections for contractor’s commercial and proprietary information. The Supreme Court will review whether government funds lose their public character when paid from general contractor to subcontractor. The Supreme Court will also examine the test to determine whether the disbursement of public funds is directly related to the contracted work.

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

The Commonwealth Court heard oral argument en banc on cross-motions for summary judgment in September, 2014, but no ruling has been issued to date. In August 2012, the Supreme Court remanded this case (which 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 Commonwealth Court’s Raffle and Mohn decisions will likely have an impact on the privacy/constitutional issues raised here. (Note, on February 17, 2015, the Commonwealth Court held that public school employees have a statutory entitlement to receive notice and to participate in proceedings regarding the disclosure of home addresses—please check our blog for a detailed analysis).

3.  McCord v. Pennsylvanians for Union Reform (the authors of this article represent Pennsylvanians for Union Reform in this matter).

The State Treasurer has interpreted the Heltzel decision as authority to deny access to certain information contained in the executive agency employee list even though the list is declared to be a public record by Section 614 of the Administrative Code of 1929.   If adopted by the Commonwealth Court, the State Treasurer’s interpretation will lay the groundwork for agencies to deny access to other records that are clearly established as public by laws other than the RTKL including campaign finance records, property tax assessment rolls, voter registration records, marriage license applications, coroner records, and fair share reports. Pending before the court is the State Treasurer’s motion for partial judgment on the pleadings, which should be argued in spring 2015, and resolved in summer 2015.

4.  Legislative Reform – In September 2014, the Senate unanimously passed an amended version of SB 444, former Senate Majority Leader Domenic Pillegi’s proposed reforms to the RTKL. The bill died in the House. With the Senate electing new leadership recently resulting in Senator Pileggi losing the Majority Leader position, it remains to be seen whether this bill, or some form of it, will be reintroduced in the next legislative session.

5.  Administration of Office of Open Records – The OOR has been criticized by former Chief Justice Castille for not adopting regulations to establish procedures for the resolution of appeals. The OOR may not address this issue anytime soon. Two days into his term, Governor Tom Wolf removed Erik Arneson as the Executive Director of the OOR and announced a national search for candidates to fill the position.   It remains to be seen how the OOR will function under interim leadership, especially if there is protracted litigation resulting from Arneson’s removal. The OOR’s acting Executive Director is eminently qualified to manage the OOR daily affairs, but it is doubtful the OOR will establish any broad policy initiatives during the transition.

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