Top Ten Most Significant Right-to-Know Cases of 2015 … and Coming Attractions for 2016

The independence of the OOR was under attack in 2015 as the new Administration sought to remove the late term appointment of Erik Arneson as the successor Executive Director to Terry Mutchler. To the rescue came the Commonwealth Court (by a slim majority) and then the Supreme Court by a 3-1 majority and affirmed that the ED position in the OOR must be insulated from the Governor’s  constitutional power to appoint and remove to assure the independence of the Office.  In addition, important cases involving third-party records and home addresses of public school employees that may have far-reaching effects were decided.  The following is our Top Ten list of 2015:

Top Ten Right-to-Know Cases of 2015

1.      Arneson v. Wolf, 117 A.3d 374 (Pa.Cmwlth. 2015)(en banc)(McCullough, J., majority opinion joined by Cohn Jubelirer, Leavitt, Brobson, JJ.; Pellegrini, PJ., dissent op. joined by McGinley, Leadbetter, JJ.) aff’d and adopted, 124 A.3d 1225 (Pa. 2015)(Baer, J., majority opinion joined by Saylor, C.J., Stevens, and Eakin, JJ.; Todd, J., dissenting opinion).

Although this case resulted from the political maneuvering of former and current Administrations, it ranks No. 1 because it confirmed that the independence of the OOR from the Governor’s removal power of appointees absent cause.  In one of his last acts as Governor, Tom Corbett appointed Erik Arneson as the Executive Director of the OOR.  Governor Tom Wolf cried foul and, immediately after taking office, removed Arneson from the position.  Regardless of either Governor’s intent, open records advocates objected to Arneson’s removal.  They believed the OOR would lose independence if the Governor could remove the Executive Director on a whim, especially since the OOR resolves open records disputes between requesters and the Governor and executive agencies under the Governor’s control.

A sharply divided Commonwealth Court held that the RTKL limits the Governor’s power to remove the Executive Director except for cause.  Judge Patricia McCullough, writing for the majority of the court in a 4-3 decision, concluded that the RTKL expresses a clear legislative intent that the Executive Director of the OOR, an independent agency, is insulated from the Governor’s constitutional power to remove appointees at will.  Former President Judge Dan Pellegrini, wrote a scathing dissent, reasoning that the majority’s opinion impermissibly interferes with the Governor’s constitutional authority to remove appointees at will.

On the Governor’s appeal to the Supreme Court, Justice Baer, affirmed and adopted Judge McCullough’s majority opinion.  He added, “[w]e view the Commonwealth Court’s analysis in this case to rest on the OOR’s status as a unique, independent agency charged with the delicate task of applying the RTKL, and the need to insulate the OOR and its Executive Director from the potential for coercive influence from a Governor to accomplish the purpose of the RTKL.”

Having this issue put to rest has allowed the OOR to concentrate on its important mission and Erik Arneson has not missed a beat as he has updated the OOR’s website, created an unofficial open records blog (including a podcast), and frequently posted messages about public records issues on  social media.  One year into his appointment and the Office seems alive and well.

2.     Com., Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19 (Pa.2015)(Saylor,C.J. majority opinion joined by Baer, Todd, Stevens, JJ.; Eakin, J. dissenting opinion); and Dental Provider, Inc., v. Eiseman, 124 A.3d 1214.

Many government contractors remain unaware or unconcerned about the RTKL. This pair of cases should be a wakeup call.  The Supreme Court ordered the Department of Human Services (formerly the Department of Public Welfare) to obtain and disclose a government contractor’s subcontracts with a third-party service provider, even though the subcontracts allegedly contained trade secrets and confidential and proprietary information.  The Supreme Court reasoned that the definition of “financial records” under the RTKL is more broad than determined by the Commonwealth Court, and that the RTKL requires agencies to disclose financial records “dealing with” the disbursement of public funds or the use of services by an agency, even if such records contain a private contractor’s trade secrets.  The Supreme Court also held that records reflecting disbursement of public funds are no longer public once in the possession of private subcontractors who have no direct contractual relationship with a government agency.

Anyone who contracts with the government should review these decisions. If government contractors are not diligent, important business information could become public, or, even worse, fall into the hands of their competitors.  Stay tuned.

3.     Pennsylvania State Educ. Ass’n ex rel. Wilson v. Com., 110 A.3d 1076 (Pa.Cmwlth. 2015)(en banc)(Cohn Jubelirer, majority opinion, joined by Leadbetter, Brobson, McCullough, Covey, JJ.; concurring opinion by Brobson, J., joined by Leadbetter, Cohn Jubelirer; dissenting opinion by Pellegrini, P.J., joined by McGinley, J.).

PSEA failed to convince the Commonwealth Court to create a new exemption for the home addresses of public school employees based on constitutional claims.  However, the Commonwealth Court did grant its alternative request to require school districts to notify public school employees of requests for home addresses and to require the OOR to permit public school employees to file appeals and otherwise participate in home address disputes.  Both PSEA and the OOR appealed to the Supreme Court, which instantly reinstated a prior injunction that stays the release of home addresses of public school employees until the Supreme Court finally resolves this case.  Many local agencies support the OOR’s appeal because the judicially-crafted notice requirement places a potentially unbelievable cost burden on agencies.  How far this holding may go in granting similar rights to private sector individuals and businesses is, as of yet unknown.

*Nauman Smith currently acts as co-counsel for one of the intervenors in this appeal.

4.     W. Chester Univ. of Pennsylvania v. Schackner, 124 A.3d 382 (Pa.Cmwlth. 2015)(Pellegrini, P.J., majority opinion joined by McGinley, Brobson, JJ.).

A government contractor has an independent basis under due process, outside the provisions of the RTKL, to file an appeal with the Commonwealth Court from an adverse final determination of the OOR, if the government contractor has a directly identifiable property interests in information contained in public records.

5.     Pennsylvania Dep’t of Educ. v. Bagwell, 114 A.3d 1113 (Pa.Cmwlth.2015)(Simpson, J, majority opinion joined by Pellegrini, J. Friedman, S.J.).

This case addressed a host of issues including the certification of the record for appellate review, the transfer of records for in camera review on appeal, the waiver of attorney-client privilege, and due process for the requester.  An agency invoking the attorney-client privilege must confirm that the communications did not take place in the presence of strangers, and if the requester contends otherwise, the OOR must give the requester the opportunity to establish waiver by documentary evidence, by deposition or by in-person testimony.

**Nauman Smith has several active cases with the requester in this case, but it did not represent the requester in this particular appeal.

6.      Pennsylvania State Police v. Grove, 119 A.3d 1102 (Pa.Cmwlth. 2015)(Colins, S.J., majority opinion joined by Cohn Jubelirer and Leavitt, JJ.).

Dashboard mobile video recordings from state police cruisers are public records unless the content of the recording reveals investigative information.  In Pennsylvania, unlike most other states, criminal investigative records are forever exempt from public disclosure.  Due to recent national media attention on videos showing police conduct, this case, where the State Police have sought Supreme Court review, will have significant impact on police videos in Pennsylvania for both dash cams and body cams worn by officers.

7.     PG Pub. Co. v. Governor’s Office of Admin., (Pellegrini, P.J., majority opinion joined by McGinley and Brobson, JJ.).

The RTKL does not require agencies to maintain public records.  The Commonwealth Court approved a record-retention policy that authorizes individual state-employees to permanently destroy any email that the employee decides is not a public record.  The RTKL does not create a duty on part of agencies to maintain records if they are destroyed as part of a records-retention policy.  Agencies must still be aware that agencies, officials, and employees may face civil liability under the RTKL if public records are destroyed in contradiction to established records-retention policy.  Follow this link to Nauman Smith’s primer on requirements for local records-retention policies.

8.     Wishnefsky v. Pennsylvania Dep’t of Corrections, No. 582 M.D. 2014, 2015 WL 5460111 (Pa.Cmwlth. July 8, 2015)(Covey, J., memorandum opinion joined by Cohn Jubelirer and Simpson, JJ.).

There is no statutory procedure under the RTKL to enforce a final determination of the office of open records.  This case confirms that an action in mandamus is an appropriate vehicle to enforce final determinations.

9.      Pennsylvania Office of the Atty. Gen. v. Philadelphia Inquirer, ___ A.3d ____, No. 296 C.D. 2014, 2015 WL 7294367 (Pa.Cmwlth. 2015)(en banc)(Pellegrini, P.J. majority opinion joined by McGinley, Cohn Jubelirer, Leavitt, Brobson, Covey, JJ.; Leadbetter, J. dissenting opinion).

Pornographic emails sent and received by Office of Attorney General employees are not public records.  The Commonwealth Court explained, “… emails should not be considered ‘records’ just because they are sent or received using an agency email address or by virtue of their location on an agency-owned computer, even where, as here, the agency has a policy limiting use of computers to official business and stating that users have no expectation of privacy.”  This decision, which is consistent with a line of similar cases in the Commonwealth Court, is troubling for open records advocates because it undermines the presumption of openness by placing a burden on requesters to establish initially that records document “agency business” and may provide a loophole to disclosure in cases of egregious behavior by public employees and officials.

10.     Paint Twp v. Clark, 109 A.3d 796 (Pa.Cmwlth. 2015)(McCullough, J., majority opinion joined by McGinley, J., and Friedman, S.J.)/Dep’t of Labor & Industry v. Earley, ___ A.3d ____, No. 107 C.D. 2015, 2015 WL 7121545 (Pa.Cmwlth Sept. 9, 2015).

The RTKL requires an agency to conduct a good faith search to locate public records. At the beginning of the year, the Commonwealth Court held in Paint Township that a Township did not have to hire a forensic expert to recreate potential public records that a Township Supervisor deleted from his agency-provided cell phone.  Later in the year, the Commonwealth Court in Earley ordered the Department of Labor and Industry to search its email server for emails that agency employees could not find in a search of their personal inboxes.  The lengths an agency must go to locate electronic records continues to be elusive for both requesters and agencies.

* Nauman Smith prepared an amicus brief in Paint Twp v. Clark.

Honorable Mention:

Ali v. Philadelphia City Planning Comm’n, 125 A.3d 92 (Pa.Cmwlth. 2015)(en banc)(Brobson, J., majority opinion, joined by Cohn Jubelirer, Simpson, Leavitt, and Covey, JJ.; dissenting opinions by Pellegrini , P.J., and McCullough, J.)  Copyrighted materials submitted to government agency are not exempt from public review under the RTKL but copying restrictions may apply.

Dep’t of Corr. v. Maulsby, 121 A.3d 585 (Pa.Cmwlth. 2015)(McGinley, J., majority opinion joined by Cohn Jubelirer, Brobson, JJ.).  Doctrine of collateral estoppel applies in OOR proceedings to prevent agency from relitigating previously decided issues; agency required to provide third-party notice where agency has reason to believe records contain trade secrets or proprietary information.

Pennsylvania Tpk. Comm’n v. Van Osdol, No. 366 C.D. 2015, 2015 WL 9079599 (Pa. Cmwlth. Dec. 16, 2015)(Brobson, J., memorandum opinion joined by Leavitt, Covey).  Agency may not appeal unfavorable OOR decision if requester withdraws the underlying request.

Lackawanna Cty. Gov’t Study Comm’n v. Scranton Times, L.P., No. 1938 C.D. 2014, 2015 WL 7357925 (Pa.Cmwlth. Nov. 20, 2015)(Leadbetter, J., memorandum opinion joined by Leavitt, J., Colins, S.J.).  This was another case involving deleted records.   The trial court below ordered the use of a forensic expert to determine if material could be recovered from a computer hard drive that was claimed could not be produced due to deletion which requester contested.

Faulk v. Philadelphia Clerk of Courts, 116 A.3d 1183 (Pa.Cmwlth. 2015).  One of eight cases decided by the Commonwealth Court involving requests by prisoners to the Philadelphia Clerk of Courts for sentencing orders.  The Commonwealth Court held that sentencing orders are public judicial records but that prisoners may not use the RTKL to obtain them.  The appropriate vehicle for prisoners to obtain sentencing orders appears to be mandamus.

Coming Attractions

  1. The Supreme Court will finally address the merits of the preliminary injunction issued by the Commonwealth Court in the PSEA litigation in 2009 to prevent the public disclosure of home addresses of public school employees.
  2. Legislative Reform – whether HB 411 gains any traction in the legislature which continues to wrestle with budget issues remains to be seen.


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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