The close of 2018 saw the end of the first decade of the “new” Right-to Know Law (“RTKL”) which went into effect January 1, 2009. Just as in 2017, the number of appellate cases continued to slow somewhat, however, the trial and appellate courts addressing the RTKL are now having to deal with much more nuanced procedural and substantive issues. Once again, 2018 ended without any action on any proposed amendments to the law. However, of note, although technically not a “case,” the Legislative Budget and Finance Committee made the Top Ten List because of its report released in February on the costs to implement the Right-to-Know Law.
The number one case this year is out of the Commonwealth Court. Uniontown Newspapers grabbed the number one spot this year in two opinions by Judge Simpson. In those combined cases, the Department of Corrections was found to have acted in bad faith by failing to conduct a good faith search as required under the statute which resulted in an eventual assessment of attorneys’ fees against the Department in an amount in excess of $118,000. A Petition for Allowance of Appeal has been filed, so we will have to see how that cases progresses.
Videos occupied several decisions, particularly in the Commonwealth Court last year. A common thread appears to be the necessity of looking at each case on its specific facts in order to determine whether the video is or is not a public record. Medical Marijuana was not only in the news, but also had worked its way into Right-to-Know appeals. The Commonwealth Court issued an opinion in September ordering the release of the names of DOH officials and employees who reviewed the Medical Marijuana permit applications. Several trial court opinions made the list. For example, in a trial court opinion from Cambria County, the District Attorney’s office was ordered to disclose monthly reports regarding the annual audit of its drug forfeiture accounts. With this introduction, here is our selection of the Top Ten RTKL cases of 2018 (with a few honorable mentions).
- Uniontown Newspapers, Inc. v. Pennsylvania Dep’t of Corrections, 185 A.3d 1161 and 197 A.3d 825 (Pa. Commw. 2018) (single judge opinions by Simpson, J.). Enforcement action in original jurisdiction of Commonwealth Court. DOC sanctioned for bad faith noncompliance. Failure to search for records constitutes bad faith. Requester may prove bad faith with after discovered records. Agency acted in bad faith by failing to perform good faith search for public records which resulted in an award of attorneys’ fees against DOC for $118, 458.37. Petitions for Allowance of Appeal filed, 561 MAL 2018, 779 MAL 2018. See also, International Brotherhood of Electrical Workers, Local Union 743 v. City of Reading, No. 17 16478 (Berks C.C.P. Aug. 16, 2018) (opinion and order by James M. Lillus, J.). Award in favor of requester for attorneys’ fees and costs of $12,017.75 in action to enforce final determination of OOR.
- City of Harrisburg v. Prince, 186 A. 3d 544 (Pa. Commw. 2018) (opinion by Wojcik, J.; joined by Leavitt, P.J.; Simpson, J.; Brobson, J.; and Covey, J.) (dissenting opinion by Cohn Jubelirer, J.; joined by McCullough, J.), appeal granted, 62 MAP 2018, 2018 WL 6070017 (Pa. Nov. 20, 2018). Names and contact information of donors and amounts of contributions to City legal defense fund for firearm ordinance not financial records and therefore not public records.
- *Central Dauphin School District v. Hawkins, ___ A.3d ____, No. 1154 C.D. 2017 (Pa. Commw. Dec. 10, 2018), 2018 WL 6441638, (opinion by Mary Hannah Leavitt, J.). School bus video of incident between principal’s wife and student not exempt from public disclosure under FERPA nor non-criminal investigation exception. Petition for Allowance of Appeal filed January 9, 2019, 16 MAL 2019. See also, California Borough v. Rothey, 185 A.3d 456 (Pa. Commw. 2018), Easton Area Sch. Dist. v. Miller, 191 A.3d 75 (Pa. Commw. 2018).
- *Pa. Dep’t of Health v. McKelvey, No. 1372 C.D. 2017 (Pa. Commw. Sep. 27, 2018) (Mem. Op. by Fizzano Cannon, J.) Names of DOH officials and employees reviewing medical marijuana permit applications are public records.
- Cambria County v. DeBartola, No. 2017-2877 (Cambria C.C.P. November 19, 2018) (opinion and order by Norman A. Krumenacker, III, P.J.). Affirming final determination which ordered disclosure of monthly reports and underlying financial records filed by District Attorney with County Controller for purpose of providing and assembling annual audit of drug forfeiture account.
- Marchiano v. County of Schuykill, No. S1401-2018 (Schuylkill C.C.P. October 23, 2018) (opinion and order by John E. Domalakes, J.). Affirming final determination which held that coroner may not redact names of decedents from autopsy reports.
- Philadelphia District Attorney’s Office v. Nolen, No. 170802099 (Phila. C.C.P. January, 26, 2018) (opinion by Abbe F. Fletman, J.). DA’s contact with judiciary and ICE; DA required to retrieve contract from court of common pleas.
- Magee v. Philadelphia District Attorney’s Office, No. 754 C.D. 2016 (Pa. Commw. Sep. 13, 2018) (Mem. Op. by McCullough, J.). Transcripts of criminal proceeding in possession of District Attorney are judicial records not subject to RTKL; there may be alternative remedy to obtain transcripts via application to criminal court judge.
- Vista Health Plan, Inc. v. Dep’t of Human Services, No. 660 C.D. 2017 (Pa. Commw. May 31, 2018) (opinion by Wojcik, J.). Sufficient specificity – in order to prevail on claim that agency interpreted request too narrowly, requester must assert that agency acted in bad faith; privilege or exemption log necessary to prove exemptions where affidavit does not sufficiently describe or identify withheld records.
- Report dated February 2018, of the Legislative Budget and Finance Committee concerning the “Cost to Implement the Right-to-Know Law.” The LBFC was charged with conducting a review of the costs surrounding the RTKL pursuant to House Resolution 2017-50. In a very thorough, well written report, the Committee concluded that most Pennsylvania state and local government agencies received few RTKL requests, and most of those received are usually fulfilled at a relatively low cost and that only a small percentage of the requests are appealed. The Committee also concluded that almost 54% of agencies surveyed reported an annual cost of $500.00 or less, 19% reported costs ranging from $501.00 – $2,000.00, 19% reported costs ranging from $2,001.00 – $10,000.00, and only 8% reported costs exceeding $10,000.00. Bottom line: 73% of agencies responding spent less than $200.00 and 92% less than $10,000.00.
Mezzacappa v. Borough of W. Easton, No. 290 C.D. 2017, 2018 WL 471907 (Pa. Commw. January, 18, 2018) (opinion by Cohn Jubelirer, J.). Commonwealth Court lacked jurisdiction over interlocutory discovery order which permitted agency to discover RTKL requester’s financial information through a deposition where requester sought monetary sanctions against agency.
Pine Richland School District v. Mark Schmitt, No. SA 17-00876 (Allegheny. C.C.P. Dec. 5, 2017) (order by W. Terrence O’Brien, J.). Document presented to quorum of governing body during executive session does not become public under 65 P.S. § 67.708(b)(10)(ii).
Cwiek v. Philadelphia District Attorney’s Office, No. 170401594 (Phila. C.C.P. June 12, 2018) (order and opinion). Affirming denial of request as disruptive under 65 P.S. § 67.506.
*Nauman Smith’s RTKL practice group represented parties in these appeals.