Commonwealth Court Awards in Excess of $118,000.00 Against the Department of Corrections for Bad Faith in Exercising its Obligations Under the Right-to-Know Law
The Commonwealth Court has awarded to Uniontown Newspapers, Inc., the largest award of attorney fees ever under the current Right-to-Know law or any of its predecessors. The decision authorized by Judge Simpson was the second of a two-part decision involving a dispute between Uniontown Newspapers and the Pennsylvania Department of Corrections. In the earlier decision, Uniontown Newspapers, Inc. v. Department of Corrections, 185 A.3d 1161 (Pa. Commw. 2018) the court had found that the Department of Corrections (DOC) had acted in bad faith in exercising its obligations under the Right-to-Know law (RTKL). The award was made under the provisions of 65 P.S. §67.1304(a) which permits the court to award reasonable attorney fees if it grants access to records after a request was denied, when “the agency receiving the original request…acted in bad faith under the provisions” of the RTKL. In its earlier decision, the court found that DOC had not performed its duties under the RTKL in response to a request by the newspaper in that it had failed to search records in its possession and further failed to comply with an OOR Disclosure Order.[1]
The newspaper had given notice of its intent to seek legal fees in the initial action, and after finding bad faith, the court instructed the requester to submit its claim for fees and costs. The court held a hearing limited to the attorney fee issue and what would constitute “reasonable attorney fees” under the RTKL.
The court wrestled somewhat with the language of Section 1304 as to whether attorney fees could only be awarded when a court reversed a ruling of the OOR (which here had found in the paper’s favor). The court found the language of Section 1304 to be ambiguous and ultimately held that an award of attorney fees can also be made if the court reverses an agency’s denial of the initial request. The court found that construing the statute to only apply to a reversal of the final determination of an OOR appeals officer penalizes a requester in an appeal under Chapter 11 of the RTKL and could permit some “egregious” conduct of an agency to go unchecked. The court ultimately held that Section 1304(a)(1) permits the recovery of attorney fees when the “receiving agency determination is reversed, and it deprived a request of access to records in bad faith.”
The court then analyzed the request for attorney fees and found that it was not necessary for it to do a line by line analysis of the invoice to determine its reasonableness. The court noted that it was cognizant of the potential fiscal effect on public agencies of such an award, however, the court also noted the importance of allowing the recovery of fees to parties who engage in litigation which benefits the public by enforcing the statute and guaranteeing transparency and openness. Of the total fees claimed of $215,190.75, the court awarded $118,458.37. The court noted that the requester bore the burden of proof and persuasion as to the reasonableness of the fees claimed. The statute was clear that not all attorney fees may be awarded, but only those that are “reasonable.”
The court did not allow all costs claimed because it found that some were not adequately supported as to reasonableness. The court also reduced any fees claimed that it found were not relevant or reasonably expended in the scope of the enforcement action designed to yield access to the public records. The court noted that it was authorized to do an apportionment of fees based on the level of success. It used this standard to award fees claimed in the pleading stage, dispositive motions, summary relief, discovery, post summary relief, pre-trial, and post-trial liability phases.
This decision should send a warning to all agencies, Commonwealth or local, that the provisions of the existing RTKL do provide for situations where substantial fees can be sought for the failure of the agency to perform its obligations under the Act. Agencies must analyze requests for records carefully, to review the records in their possession that may be responsive and not to engage in prolonged obstructive litigation when access is sought to what are clearly public records. This decision should be a wake-up call to all agencies in this regard and should give hope to requesters who may be hesitant to appeal questionable denials in the face of what could be substantial legal costs. This decision helps to guarantee the fundamental principles of openness and transparency which the RTKL is meant to safeguard.
[1] https://www.nssh.com/2018/04/commonwealth-court-awards-rtkl-statutory-penalty-for-bad-faith-against-department-of-corrections/