What Does the Affirmance by the Supreme Court of an Award of Attorney Fees Exceeding $118,000 Under the Right to Know Law Mean to the Average Requester?
In December, the Pennsylvania Supreme Court affirmed an award of over $118,000 in legal fees under the Right-to-Know Law to Uniontown Newspapers, Inc., publisher of the Herald Standard, Uniontown’s home newspaper. This decision was the culmination of a request for records first submitted in September 2014 and a six-year battle by the paper to obtain public records from the Pennsylvania Department of Corrections (DOC) concerning incidents of cancer and respiratory illnesses of inmates and employees at SCI-Fayette.
The opinion affirmed an earlier decision of Judge Robert Simpson of the Commonwealth Court who found that the DOC had acted in ‘bad faith’ in the manner in which it handled and responded to the request as the basis for the award of fees. Both decisions represent the first appellate decisions to specifically address what constitutes ‘bad faith’ under the RTKL and having made such a finding, to analyze whether fees could be awarded under Section 1304 of the RTKL for reversing the denial of access to public records by an agency. But what does the Supreme Court’s affirmance mean to the average requester? Will its decision make it somewhat easier for requesters to obtain findings of bad faith and fee awards from the trial courts and the Commonwealth Court in RTK appeals?
It must be kept in mind that this case spanned six years and no less than three Commonwealth Court decisions, discovery, a fact-finding hearing, and a second hearing on the issue of fees. The Supreme Court had a substantial record to review which is not the case in most RTK appeals. The factors it found relevant on the issue of bad faith, however, and on whether Section 1304 would permit an award of fees under the circumstances presented, should allow courts considering these issues a broader foundation upon which to make such findings.
The Supreme Court found the factors relied on by the Commonwealth Court demonstrated a failure by DOC to conduct a good faith search as required under Section 901, and the Open Records Officer (ORO) failed to satisfy the statutory requirements of Section 502(b). The Court observed that upon receiving the request, the ORO merely forwarded it to another DOC department which misread the request thinking it referred to another internal investigation, thus claiming any records exempt, and the ORO denied the paper’s request in its entirety citing several exemptions.
During discovery, it became known that the ORO did not inquire any further as to the responding department’s basis for that conclusion, ask to or review potentially responsive records or actually search for any responsive records, but relied solely on the department’s assertions. It also was revealed that potentially responsive records were no longer available. The Court agreed that the good faith requirement of the RTKL and the statutory obligations of the ORO do not allow abdication of those obligations to others.
The ORO, on behalf of the agency, must act with diligence when directing RTK requests to others both inside and outside the agency. When receiving information from others on a request from others, the ORO must inquire as to the investigation done by that individual and review the records relied upon to determine if that individual’s conclusion is correct. It should also be noted that the Supreme Court endorsed the Commonwealth Court’s finding that a finding of bad faith does not require a finding of corruption or fraud, but an abnegation of a mandatory duty under the RTKL is sufficient.
On the issue of awarding fees under Section 1304, the Court’s analysis centered on whether the Commonwealth Court had properly relied upon principles of statutory construction after finding Section 1304 to be ambiguous. The issue centered on whether the court could award fees where there was no reversal of an appeals officer’s final determination, as the language of 1304(a) seems to require, as opposed to an agency’s denial which was the case here. The Supreme Court agreed with the finding of Judge Simpson that the term “final determination” appearing in the heading to 1304(a) seeming to refer to the agency’s decision and then its use in the section referring to the “final determination of the appeals officer” and then later in subsection (b) again referring to “the agency in its final determination” was ambiguous. Thus, principles of statutory construction needed to be applied to determine if fees under 1304(a) could be awarded when the court was not reversing an appeals officer’s final determination (which here was in favor of the newspaper) but of the agency itself (DOC).
The Court agreed that the “final determination” language was ambiguous and that the Commonwealth Court had correctly applied the principles of statutory construction to find that attorneys’ fees may be awarded under 1304 when the court was reversing a denial of an agency. Justice Mundy, writing for the majority, found that to hold otherwise would run contrary to the legislative intent of the RTKL to make agency records more accessible. In addition, the Court agreed with Judge Simpson’s finding that to hold otherwise would yield an absurd result. That absurdity would arise from a requester, who was successful in an OOR appeal, being unable to collect fees in a bad faith situation, since the OOR may not award fees and only courts can. Also, an agency accused of bad faith could simply not appeal an adverse OOR decision and avoid a potential fee assessment. The Court observed that this could permit the most egregious conduct by an agency in denying access to go unchecked.
Justice Wecht filed a concurring and dissenting opinion. He agreed that the finding of bad faith was supported by the record. He highlighted that when an ORO relies on the investigation or conclusions of others, the basis of those conclusions should be supported by affidavit, which was not done by DOC. He pointed out that the obligation of a good faith search extends to the agency ‘as a whole’ and not just to the ORO. He dissented, however, from the award of fees. He opined that no ambiguity exists which would support fees here. He believed the General Assembly committed a drafting error in the language of Section 1304, and that it should remedy that error, not the courts. Justice Dougherty dissented as well. He would have found that DOC acted in good faith in handling what he states was a vague request and did eventually produce enough documents to not qualify as acting in bad faith.
What does this mean then for requesters going forward? Although the facts and history of the case are somewhat unique, the opinion does provide a clearer pathway for requesters to successfully make claims of bad faith and for fees. It will not be easy, however, as courts still appear reluctant to assess fees under the RTKL. But the decision does provide guidance in situations where an agency is obstructive or dilatory or when it attempts to avoid or to shift the burden of making a meaningful, good faith search for records. This will be especially true where an agency drags out a matter and/or dribbles out records it previously denied having or claimed were exempt without a proper investigation or basis.
It also places a stricter burden on agencies to determine if it has records and whether they are properly exempt at the earliest stage (before the agency) and not wait until the appeals process to OOR or the courts is well underway. Requesters should assert a claim of bad faith as soon as such behavior becomes evident. Although the OOR cannot assess fees under the RTKL, it has shown a willingness to make a finding of bad faith where appropriate and requesters should be aware of this possibility. By the same token, requesters should be circumspect in making such an argument and not assert bad faith every time they are denied a record.
Both Judge Simpson’s decision and the Supreme Court’s affirmance put much needed ‘teeth’ into the penalty provisions of the RTKL. Agencies which try to stall or outlast a legitimate requester making a bona fide request for public records or which do not satisfy the requirement of a good faith search had better heed these two holdings. The current RTKL was enacted to correct the woefully inadequate prior open records law, to provide greater access to government records and to promote greater transparency to the inner workings of Pennsylvania agencies at all levels. These decisions will certainly foster an increase in claims of bad faith and for fees. After 11 years, these holdings signal that the consequences to agencies who do not comply with the statutory obligations to provide greater access will be severe.