Continuing a 2020 trend, courts issued less RTKL decisions in 2021 than in pre-pandemic years. Many of the Commonwealth Court’s decisions in 2021 were unpublished, which typically occurs when cases turn on fact-sensitive concerns rather than precedent setting legal issues. Nonetheless, as outlined in the top-ten list below, 2021 did see several momentous decisions that continue to change the public records playing field in Pennsylvania.
The most monumental decision of 2021 – the Pennsylvania Supreme Court’s decision in Chester Water Authority – will change the way public officials and employees communicate with private consultants. The Supreme Court held that agency communications with private consultants are not “internal” and therefore cannot be exempt as predecisional deliberations. As a result, public officials and employees must exercise caution in written communications with private consultants such as financial advisors, engineers, and lawyers.
Courts in 2021 continued to struggle to balance government transparency with individual privacy in cases involving applications to fill judicial vacancies (Bumstead), and identities of persons who purchased forfeited property from a county drug task force (Walker).
Another big issue in 2021 is security concerns arising from disclosure of videos in Wereschagin, Suber-Aponte, and Hawkins. Courts continue to issue mixed decisions in these cases, swinging largely upon the agency’s evidentiary submissions.
Finally, the top ten list includes other miscellaneous issues including the public nature of: (i) death statistics (PublicSource), (ii) social media posts (Penncrest School District), (iii) records related to municipal real estate purchases (Mountz), and (iv) applications for permits to manufacture and distribute medical marijuana (McKelvey).
Here are the Top Ten most significant RTKL cases of 2021:
1. Chester Water Auth. v. Pennsylvania Dep’t of Cmty. & Econ. Dev., 249 A.3d 1106 (Pa. 2021), reargument denied (June 17, 2021)
The Pennsylvania Supreme Court held the RTKL’s predecisional deliberation exemption does not apply to agency communications shared with independent contractors or vendors.
The case addressed a request to the Department of Community and Economic Development (DCED) for records related to the potential monetization or privatization of the Chester Water Authority. DCED denied access to: (1) portions of a report prepared by a private consultant appointed to implement the city’s economic recovery plan, and (2) an email from the consultant’s legal counsel.
The Supreme Court’s decision turned on the plain language of the RTKL, which exempts “internal, predecisional deliberations of an agency, its members, employees, or officials.” 65 P.S. § 67.708 (b)(10). Since the private consultant was an independent contractor, as opposed to a member, employee, or official of the agency, the communications were not “internal” to DCED.
In sum, DCED facilitated the transfer of public funds to a private entity to provide policy advice to a distressed city. By exposing the consultant’s communications to public scrutiny, the Chester Water Authority decision empowered the public to discover if the City’s economic recovery plan was rooted in sound policy.
2. Off. of Gen. Couns. v. Bumsted, 247 A.3d 71 (Pa. Commw. 2021)
The Commonwealth Court held that applications for judicial vacancies on Commonwealth Court are not exempt under 65 P.S. §§ 67.708 (b)(7)(iv) or 67.708 (b)(10)(i). The court remanded the matter to the OOR so that individuals who were not appointed to fulfill the judicial vacancies could receive notice and opportunity to object to disclosure of personal information contained in their applications.
Certain personnel records of government employees are not public (e.g., reference letters, performance ratings or reviews, written criticisms, and grievance materials). 65 P.S. § 67.708(b)(7). Likewise, employment applications from individuals who are not hired by an agency are not public records. 67.708(b)(7)(iv). The inverse is that job applications for individuals who secure government employment are public records.
The court determined the personnel exemption for individuals “not hired by an agency” did not apply to individuals seeking appointment to fill a judicial vacancy on the Commonwealth Court. The court examined the process by which judicial vacancies are filled upon appointment by the Governor, subject to advice and consent of the Senate. Once appointed, the judge is not employed by the Governor but rather holds public office on the Commonwealth Court.
3. McKelvey v. Pennsylvania Dep’t of Health, 255 A.3d 385 (Pa. 2021)[*]
The Pennsylvania Supreme Court addressed whether the Department of Health could withhold business information received from private entities who applied for permits to manufacture and distribute medical marijuana. The Department allowed each applicant to redact their own applications, which resulted in vast disparity between the amount of information publicly available from applicant to applicant. Some applicants went as far to redact the names of their owners and financial backers, the locations where they intended to open dispensaries, and their diversity plans. The Supreme Court ruled the Department erred by allowing these private entities to redact large portions of their applications with no evidence that such information qualified as trade secrets or confidential proprietary information under the RTKL.
The decision empowers the public to scrutinize if medical marijuana is manufactured safely and dispensed in a secure manner. Although it involved the medical marijuana industry, the McKelvey decision has broad implications for any private entity that is regulated by or contracts with government agencies. Government agencies may no longer place private interests ahead of public transparency. Under the RTKL, any sensitive business information in the possession of an agency is presumed public and must be disclosed, unless the private entity timely produces actual evidence to the contrary.
4. Allegheny Cty. Dist. Attorney’s Off. v. Wereschagin, 257 A.3d 1280 (Pa. Commw. 2021)
The Commonwealth Court affirmed the District Attorney may withhold records related to office surveillance cameras, including the make and model as well as the identity of the third-party monitoring service. In a hearing before the Allegheny County Court of Common Pleas, the District Attorney presented expert testimony that disclosure of the requested information would allow malicious actors to hack into the surveillance system. Although the requester presented conflicting expert testimony, the trial court credited the District Attorney’s testimony and found the requested information was exempt under the RTKL’s public safety and infrastructure security exemptions. 65 P.S. § 67.708 (b)(3) & (4). The Commonwealth Court would not disturb the trial court’s credibility determinations.
5. Cent. Dauphin Sch. Dist. v. Hawkins, 253 A.3d 820 (Pa. Commw. 2021), review granted in part, No. 287 MAL 2021, 2021 WL 5576763 (Pa. Nov. 30, 2021)*
The Commonwealth Court held the Federal Family Educational Rights and Privacy Act (FERPA) does not preclude public disclosure of school bus surveillance video depicting altercation between adult and student and that the District was required to redact the video to protect student identities.
The School District has appealed to the Pennsylvania Supreme Court, seeking a ruling that all education records are categorically exempt from public disclosure, even if de-identified to protect student identities. Argument is scheduled for April 2022.
6. Campbell v. Pennsylvania Interscholastic Athletic Ass’n, ___ A.3d ____, No. 107 C.D. 2021, 2021 WL 5571177, (Pa. Commw. Nov. 30, 2021)*
After an open-government activist filed a RTKL request seeking to discover how the Pennsylvania Interscholastic Athletic Association (PIAA) uses millions of dollars in membership dues received from public schools, PIAA sued the OOR to enjoin disclosure of its financial records. The Commonwealth Court rejected PIAA’s argument that its inclusion in the RTKL is unconstitutional regulation of a “private” entity. The court noted PIAA is the de facto regulator of high school athletics and wields tremendous power over the lives of student athletes. The court retained jurisdiction to ensure PIAA did not redact non-privileged information from responsive financial records. PIAA has petitioned the Pennsylvania Supreme Court seeking to overturn the Commonwealth Court’s decision.
7. Mountz v. Columbia Borough, 260 A.3d 1046 (Pa. Commw. 2021).
Where Borough entered conditional agreement to purchase real estate, but later cancelled agreement after commissioning and reviewing environmental assessment reports, such reports were non-public under 65 P.S. § 67.708(b)(22)(i), since Borough never closed real estate transaction.
8. Lancaster Cty. Dist. Attorney’s Off. v. Walker, 245 A.3d 1197 (Pa. Commw. 2021).
Names of persons who purchase forfeited property at drug task force auction are public subject to redaction of their driver’s license numbers and address information.
9. PublicSource v. Pennsylvania Dep’t of Health, No. 1021 C.D. 2020, 2021 WL 5183567 (Pa. Commw. Nov. 9, 2021) (unpublished memorandum decision).
The Commonwealth Court held the Department of Health properly denied access to pneumonia and influenza death statistics for 2019 and 2020. Although the same statistics for prior years are publicly available in CDC and EDDIE databases, the Pennsylvania Vital Statistics Law of 1953 (VSL) exempts public disclosure of raw data before the Department analyzes and communicates the data to the CDC. Republicans in the Pennsylvania General Assembly have introduced legislation (e.g., HB 1893 of 2021) to prevent the Department from using the Disease Control and Prevention Law of 1955 to block access to similar aggregated data for research purposes.
10. Pennsylvania Dep’t of Educ. v. Wing, 146 C.D. 2020, 2021 WL 3720087 (Pa. Commw. 2021).
Department of Education properly denied request for teacher scores in Pennsylvania Value Added Assessment System (PVAAS), which make up part of teacher effectiveness rating, as “performance rating[s] or review[s]” under 65 P.S. § 67.708(b)(7)(ii).
- Energy Transfer v. Friedman, 265 A.3d 421 (Pa. 2021)
Public Utility Commission (“PUC”) has exclusive authority to review requests for records containing “confidential security information” under the Public Utility Confidential Security Information Disclosure Protection Act, 35 P.S. §§ 2141.1–2141.6 (“CSI Act”).
- Borough of Pottstown v. Suber-Aponte, 1416 C.D. 2019, 2021 WL 1828442 (Pa. Commw. May 7, 2021).
The Commonwealth Court reversed the trial court’s determination that disclosure of surveillance video of incident at police station was exempt under 65 P.S. §§ 708(b)(1)(ii)(2) & (3), where footage was disclosed to requester during criminal discovery and where trial court reviewed footage in open court during RTKL proceedings.
- Penncrest School District v. Cagle, A.D. No. 2021-486 (Crawford County Court of Common Pleas, Dec. 16, 2021) (available at https://www.openrecords.pa.gov/Appeals/DocketGetFile.cfm?id=84346).
Facebook posts by two school board members discussing display of books about sexual orientation in school library were public records even though that subject matter was not an agenda item and the posts were published on private Facebook accounts.
[*] Nauman Smith’s Right-to-Know Law Practice Group represented a party in the appeal.