Likely due to the COVID 19 pandemic, 2020 saw a large decline in the number of appellate decisions interpreting the Pennsylvania Right-to-Know Law (RTKL). Interestingly, the number of Sunshine Act cases increased, likely the result of Act 15 of 2020, which allowed political subdivisions to hold public meetings remotely.
The biggest case of the year saw the Pennsylvania Department of Corrections walloped with a huge $118,000 plus attorney fee sanction for failing to conduct a good faith search for public records. This stems all the way back to the Supreme Court’s decision in Levy v. Senate of Pennsylvania, 65 A.3d 361 (Pa. 2013), which abrogated the Signature Information rule. Prior to Levy, agencies had to raise all reasons for nondisclosure in their initial denial letter. The abrogation of the Signature Information rule allowed agencies to become lax when processing RTKL requests, waiting to see if the requester pursued legal remedies before conducting a full search for responsive records. Although agencies remain under no obligation to raise every possible legal defense at the request stage, they face serious sanctions if they do not conduct a good faith search for all responsive records as soon as they receive a request.
Like in other years, most of the top cases required courts to struggle with procedural ambiguities in the RTKL. Proposed legislation to resolve issues, such as fees for commercial requests, remained stalled despite frequent admonitions from the courts. Other recurring procedural issues included appellate in camera review and sufficient opportunity for participation by third parties in OOR proceedings.
Two cases in the Top Ten involved the Sunshine Act, both finding that the respective agency failed to provide meaningful opportunity for public participation.
2020 was the last year of Erik Arneson’s six-year term as the Executive Director of the Office of Open Records (OOR). During his tenure, the OOR significantly improved its website and set up numerous databases increasing access to public records determinations. Mr. Arneson appeared at many trainings throughout Pennsylvania and ran a blog to raise awareness of public records and Sunshine Act issues. He will remain a significant voice for transparency in Pennsylvania.
The newly appointed Executive Director, Liz Gerloff Wagenseller, former chief of staff for ex-Auditor General Eugene DePasquale, has announced a priority of adopting regulations to simplify the OOR appeals process and address steps agencies must take at the request stage to properly prepare for appeal. Agencies and public officials should keep abreast of these developments to avoid becoming the next agency to be hit with Uniontown Newspapers level sanctions.
Here are the Top Ten most significant RTKL cases of 2020:
- Uniontown Newspapers, Inc. v. Pennsylvania Dep’t of Corr., ___ A.3d ____, No. 76 MAP 2019, 2020 WL 7502321, (Pa. Dec. 22, 2020) (Majority Opinion by Justice Mundy; joined by Saylor, C.J.; Baer, J.; and Donohue, J.) (Concurring and Dissenting Opinion by Justice Wecht; joined by Todd, J) (Dissenting Opinion by Justice Dougherty).
The Supreme Court affirmed a $118,000 attorney fee against the Department of Corrections for failing to conduct a good faith search for public records. As explained by Right-to-Know Practice Group Chair Craig Staudenmaier, “the Supreme Court’s affirmance put much needed ‘teeth’ into the penalty provisions of the RTKL.” Agencies are on notice that stalling or trying to outlast a legitimate requester making a bona fide request for public records will result in serious financial consequences.
- Easton Area Sch. Dist. v. Miller, 232 A.3d 716 (Pa. 2020) (Opinion and Judgment of the Court by Justice Dougherty (Concurring and Dissenting Opinion by Chief Justice Saylor; joined by Mundy, J.) (Concurring and Dissenting Opinion by Justice Baer; joined by Wecht, J.)
The Supreme Court held that the Federal Education Rights and Privacy Act (FERPA) does not preclude release of school bus surveillance video with the faces of students blurred. In any other year, this likely would have been the top decision of the year, as this case shows that school districts have widely misapplied FERPA to preclude the release of public records.
Prior to the Supreme Court’s decision, school districts frequently argued that “education records” as defined by FERPA were categorically exempt under the RTKL. In a deeply divided opinion, a majority of the Justices agreed that school districts may only withhold education records if disclosure will result in the loss of federal funds. A majority of justices also agreed, albeit for different reasons, that the disclosure of a school bus surveillance video was not precluded by FERPA because the identify of the students could be protected by blurring their faces.
The Supreme Court’s decision has broad implication for other agencies beyond school districts because it shows that agencies must use redaction techniques such as blurring or pixelating videos and that agencies cannot assert that doing so constitutes the creation of a record.
- Am. Civil Liberties Union of Pennsylvania v. Pennsylvania State Police, 232 A.3d 654 (Pa. 2020) (Opinion by Justice Wecht; joined by Baer, J.; Todd, J; and Donohue, J.) (Concurring opinion by Chief Justice Saylor; joined by Dougherty, J.) (Dissenting opinion by Justice Mundy).
Perhaps the biggest procedural case of the year, the Pennsylvania Supreme Court ruled that the Commonwealth Court cannot overturn an OOR decision based on in camera review without conducting its own independent in camera review. This case involved the Pennsylvania State Police’s (PSP) social media monitoring policy. PSP alleged via affidavit that disclosure of the policy would allow criminals to avoid detection. Based on an in camera review of the actual policy, the OOR held PSP failed to meet its evidentiary burden. The Commonwealth Court reversed based solely on PSP’s affidavit without reviewing the policy in camera. The Supreme Court vacated the Commonwealth Court’s decision and directed the Commonwealth Court to redecide the case after looking at the policy in camera.
- McGrath v. Board of Directors of City of Scranton and the School District of the City of Scranton, No. 20 CV 3698 (Oct. 4, 2020, Lackawanna County CCP, Opinion by Nealon, J.)
Judge Nealon found that the school district violated the post-COVID 19 amendments to the Sunshine Act by proceeding with a virtual meeting despite knowing that the meeting technology had failed. This invalidated the school district’s decision to furlough 200+ employees and cancel their healthcare without public input.
- Payne v. Pennsylvania Dep’t of Health, 240 A.3d 221 (Pa. Commw. 2020) (Opinion by Leadbetter, S.J; joined by McCullough, J; and Wojcik, J).
The legalization of medical marijuana in 2017 has generated numerous public records decisions. The Department of Health has lost decision after decision trying to keep the medical marijuana permitting process secret. Here, the Commonwealth Court rejected the Department of Health’s contention that medical marijuana permit application scores are exempt from public disclosure. This case also presents another example of the over-application of the predecisional deliberation exemption—one of the most misapplied bases for denial of public records.
- Pennsylvania Dep’t of Labor & Indus. v. Darlington, 234 A.3d 865 (Pa. Commw. 2020) (Opinion by Cohn Jubelirer, J.; joined by Fizzano Cannon, J.; and Leadbetter, S.J.).
Second only to the predecisional deliberation exemption, as discussed in the prior case, the non-criminal investigation exemption is one of the most over-applied reasons to deny access to public records. Here, the Commonwealth Court held that routine boiler inspection reports, as opposed to investigative reports of incidents such as boiler explosions, are public records.
- Highlands Sch. Dist. v. Rittmeyer, ___ A.3d ____, No. 163 C.D. 2020, 2020 WL 7061810 (Pa. Commw. Dec. 3, 2020) (Opinion by McCullough, J.; joined by Brobson, J. and Wojcik, J.).
The school board improperly withheld the names of two employees placed on administrative leave at a public meeting. The School Code and the Sunshine Act access provisions trumped the RTKL’s personnel exemption.
- Smart Commc’ns Holding, Inc. v. Wishnefsky, 240 A.3d 1014 (Pa. Commw. 2020) (Opinion by Cohn Jubelirer, J.; joined by Covey, J. and Leadbetter, S.J.).
The statement of work attached to agreement between communications company and Department of Corrections was a financial record subject to unredacted disclosure under RTKL.
- Pennsylvania Tpk. Comm’n v. Elec. Transaction Consultants Corp., 230 A.3d 548 (Pa. Commw. 2020) (Opinion by McCullough, J.; joined by Wojcik, J. and Leadbetter, S.J.).
The OOR violated a third-party’s due process rights by requiring third-party to make full evidentiary submission within two days of receiving notice of appeal.
- Mid-Mon Valley Publishing Company LLC, d/b/a Mon Valley Independent and Tina O’Dell v. City of Monessen, No. 581 of 2020 (Dec. 11, 2020, Westmoreland CCP, Smail, Jr., J.).
Judge Smail ordered Monessen City officials to attend Sunshine Act training after the officials terminated and replaced the city solicitor and the city administrator at a public meeting without providing opportunity for public comment.