Public Records: Avoiding the Insufficient Specificity Denial
Section 703 of the Right-to-Know Law (RTKL) requires a requester when submitting a written request for public records to an agency to “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.” This language gave rise in the early years of the RTKL’s existence to denials lodged by agencies to requests because they were “insufficiently specific.” Challenges to these denials by requesters centered on the remedial nature of the RTKL, its transparency thrust and the presumption of openness the ‘new law’ brought to Pennsylvania. In addition, requesters asserted that, in many instances, they had very little information on what records the agency had that were responsive to their requests and that they should get substantial leeway in the ‘specificity’ of their requests.
In one of the earliest cases to address this issue, a requester had filed a RTK request and, among other records, requested “[A]ny and/or all e-mails between any and/or all of the Supervisors and any and/or all Township employees regarding any Township business for the past 5 years.” He made a similar request for the same records for a 1-year period. In response, the agency denied the requests “because the request was vague, overly broad, and did not identify any document with sufficient detail, as required by Section 703 of the RTKL.” In short, the requests framed in this manner were insufficiently specific in violation of Section 703.
On appeal the Office of Open Records found that the requests met the basic requirements of Section 703, but ordered the agency to provide a ‘sampling’ of potentially responsive emails to the requester, so that the requester “could craft a more specific request, which shall be more limited in type, subject-matter, time-frame and scope.” However, on appeal by the agency, the trial court reversed the OOR on this point, and the Commonwealth Court affirmed the lack of specificity basis as a proper denial of these requests. The Court stated that without some indication of what ‘business or activity’ of the agency the records sought pertained to, it would place an unreasonable burden on the agency to determine what records may be responsive.
These decisions led to a flurry of denials by agencies asserting lack of specificity as a basis to deny access to public records. It became common place for agencies to assert this as a denial basis along with whatever other exemptions they thought applicable.
To stem the tide of this denial basis, the Commonwealth Court announced a 3-part test to determine whether a request was sufficiently specific under Section 703. The test for sufficient specificity requires that the request be examined to determine if it identifies 1) the subject matter of the records sought, i.e. what business or activity of the agency is involved, 2) the scope of the records requested, i.e what types of records are asked for, and 3) is there a timeframe set forth. The Court noted it is a balancing test since all three of the prongs must be considered and weighed in the context of sufficiently identifying the records sought so that the agency may ascertain if it possesses responsive records and whether they may or may not be publicly released.
Although the test may seem straightforward at first glance, other decisions applying the test have led to mudding the waters as to what language of a request is sufficient. For example, the courts have held that it is not fatal to a request if a specific timeframe is not listed if the subject and scope are sufficiently specific. However, even though a shorter timeframe may help a request that is not specific in its scope, a short timeframe alone will not rescue a request with a vague or overly broad subject or scope. Also, although the fact that a request may result in a potentially large number of records is not a reason alone to find insufficient specificity, this fact coupled with claims of lack of clear subject matter and a longer timeframe has provided support for a specificity denial. Finally, the use of keywords has become more popular lately. Again, although the courts have held that the use of keywords alone instead of a specific subject is not automatically fatal to a request, general or overly broad keywords without other limiting factors, scope and/or time, will be fatal.
The state of the law can be confusing to the average requester especially one who is faced with a specificity denial. Compounding the problem is the fact that, in most situations, the requester has no idea what responsive records the agency may have or who may have them. Along with this may be a lack of knowledge of when the activity or transaction of the agency took place or what precise subject matter was involved.
Faced with this dilemma, how is a requester to frame a request so as to best avoid a denial by the agency for lack of specificity? The following tips are offered to assist with crafting a request that has sufficient specificity:
- In advance of submitting your request, find out as much as you can as to which agency members were involved in the activity or transaction you wish to inquire about, when it occurred and what records may exist regarding it
- Avoid the use of terms like ‘any and all.’ If you must take a broad approach, be sure to identify, to the extent you can, the subject matter and the type of record most likely to yield the information sought (e.g. emails, text messages, contracts, memos, etc.)
- Keep your timeframe as short as possible to cover the period of time most likely to involve the subject matter of your request
- Keep the number of people from whom you seek records as small as possible. In some instances, it may be best to start with a key group and after receipt of those records, if they reveal others involved, file additional requests
- If you are significantly unsure of what records may be involved, favor a more specific subject matter and scope over timeframe
- If you choose to use keywords over specific subject matter topics, use as specific ones as you can, e.g. instead of listing “development activities” as a keyword, say “commercial development of retail establishments”
- To the extent you can, refer to the activity or event that led you to make the request: e.g. “The purchase agreement for the new police department vehicles discussed by Commissioner Smith at the monthly meeting on August 18, 2021”
- Remember to request records and not ask questions
- If you receive a specificity denial, before submitting another request or considering an appeal to the OOR, reach out to the Open Records Officer and see if you can learn what may be done to modify your request to make it able to be responded to by the agency
The law in this area will continue to evolve and the courts will continue to review specificity challenges with the test discussed above as the primary yardstick to determine if an agency’s denial is correct or not.