Senate Bill Proposes Amendments That Could Allow Agencies Greater Permission in Denying Right-to-Know Law Requests

Right-to-Know Law (RTKL) and issues related to discovery can overlap and cause confusion regarding what information is protected from disclosure and what is not. This is apparent in the Stroudsburg Area School District v. Petersen case from October 2019. In this case, Gretchen Petersen filed a RTKL request in February 2019 requesting the school district’s engagement letter with legal representation, documentation of the initiation of an attorney-client relationship, and other communications between the district and two given law firms. The district denied this request and Petersen appealed to the Pennsylvania Office of Open Records.

In April, the school district was faced with an identical RTKL request for a different case, Stroudsburg Area School District v. Monroe County Board of Assessment Revision. The court of common pleas in this case denied the request to quash two depositions on June 3 but granted the motion to quash the documents of any unsolicited advertising of the two firms sent to the district. Essentially, the court had denied this information from entering the case during discovery.

Also in June, an Office of Open Records appeals officer decided Petersen’s RTKL appeal, finding that the district had not shown by a preponderance of the evidence that the records Petersen requested were protected from discovery. Based on this finding, the appeals officer did not find that the attorney-client privilege applied in this case. Furthermore, the OOR found that the motion to quash in the other simultaneous case did not act as a protective order that precluded discovery in this case.

The Stroudsburg v. Petersen case then went to the court of common pleas, where the court found that a judicial order denying discovery does not necessarily act as a protective order. Instead, it limited disclosure of a document, allowed the disclosure of others, and did not preclude disclosure in all circumstances. Importantly, they noted that discovery processes in the courts are separate from requests made under the RTKL. Ultimately, the court’s ruling held that the Office of Open Records appeals officer was not limited by the discovery order in the other district’s case while she ruled on Petersen’s RTKL request. This led to a denial of the district’s petition and upheld the appeals officer’s decision. The district was required to provide Petersen with the requested records.

In the midst of this case, various amendments to Pennsylvania’s RTKL were proposed by the state senate and referred to its committee on state government. The amendments in Senate Bill 783 partly addressed issues arising in the Stroudsburg v. Petersen case. Under one of the proposed changes to the law, an agency would be permitted to deny a request to a party in litigation if that request is material to a civil action or proceeding to which the agency is a party. The agency would also be permitted to deny the request if it was previously made in litigation discovery. The court in Stroudsburg v. Petersen pointed out that protective orders are generally rare and disfavored. The amendment to RTKL, however, could supply another avenue for these orders, thus making them more common. If the amendments are passed, protective orders could be issued more often to prevent information from being shared that involves parties of a lawsuit.

In the Stroudsburg v. Petersen case, the court explained that the rulings on discovery in one instance of litigation did not preclude disclosure of that information in RTKL requests because these processes are wholly separate. This portion of the proposed amendment could change that, however, as it expressly gives agencies permission to deny RTKL requests when that information has been requested in litigation discovery. While these processes are currently legally separate, the proposed amendments would make the RTKL requests and litigation discovery processes relevant to one another.

Since the amendments were referred to the committee on June 20, 2019, the bill has not moved forward. How the bill is received is still uncertain in today’s political climate is something to remain aware of in the future due to its impact on the overlap of RTKL and litigation discovery.

With contribution from Angela Mauroni, first year J.D. candidate at the University of Pittsburgh School of Law.