As we look back at the 14th year of Pennsylvania’s ‘new’ Right-to-Know Law (RTKL) (effective Jan. 1, 2009), we see again, for the third year in a row, a decrease in the number of appellate decisions addressing the law. Another trend is the large number of decisions that are unpublished (4 of the 10 below), thus not binding precedent. This is likely a product of the reality that the appellate courts are having to deal with cases that involve more fact-specific or procedural issues as the substantive law becomes somewhat more settled. There were slightly more than 25 appellate decisions in 2022 from the Commonwealth Court and only one Supreme Court decision.
The Supreme Court’s decision discussed below dealt with the issue of a school bus video and whether FERPA barred its release. Other decisions from the Commonwealth Court addressed the standard to apply when a requester seeks attorneys’ fees or civil penalties under the law, the potential protections of an agency’s record retention policy and the pitfalls of failing to follow the statutory appeal deadlines.
2022 saw several bills introduced in the General Assembly to amend the law to expand its reach to additional records of state-related universities and to address ‘vexatious requesters.” However, as in previous years, none of these proposals made it to the Governor’s desk. It is anticipated that 2023 will see these same or similar proposals reintroduced. Time will tell if any gain traction.
So, below are this author’s selection of the Top Ten Significant Right-to-Know Cases of 2022:
- Central Dauphin School District v. Hawkins/Fox 43, 286 A.3d 726 (Pa. 2022) [*]
The Supreme Court held that a video recording of an altercation between a high school student and an adult which occurred both on and off the bus was a public record which the District had to release with student faces and other identifiers redacted. The Court held that, with the student identifiers redacted, the video was no longer potentially subject to the Federal Education Protection Act (FERPA). The Court also rejected the District’s claim it was ‘unable’ to do the redactions electronically pointing out the ready availability of free on-line programs for doing so. This decision was an extension and clarification of the Court’s 2020 decision in Eaton Area School District v. Miller, 232 A.3d 716 (Pa. 2020). It is also interesting to note that every tribunal that had reviewed the request from the OOR to the Dauphin County Court of Common Pleas to the Commonwealth Court (twice) had found the video to be a public record and must be disclosed.
2. Pennsylvania Department of Health v. Mahon, 283 A.3d 929 (Pa. Commw. 2022)
Court held that the aggregate number of medical marijuana certifications for each eligible medical condition and the policies or procedures of the Department in determining those certifications were public records and not exempt under the provisions of the Medical Marijuana Act due to the Act’s narrow definition of what types of patient information were confidential.
3. Real Alternatives v. Department of Human Services, 279 A.3d 96 (Pa. Commw. 2022)
Court affirmed OOR which held that agreements between a third-party contractor (Real Alternatives) and entities to which it provided services were not accessible under 506(d)(1) even though the third-party had a grant agreement with Department of Human Services because those agreements were not directly related to Real Alternatives’ performance of its grant agreement. However, invoices from those entities, with certain redactions, were public records to be disclosed.
4. Montgomery County v. Brock, No.228 C.D. 2022, 2022 WL 4490864 (Pa. Commw. Sept. 28, 2022)
In response to a request for County records of contacts with Department of Health, County estimated duplication charges would exceed $36,500 and wanted payment in advance. OOR ordered production since County had not reviewed documents to see if this was total to produce non-exempt documents. County failed to file a timely appeal from the OOR decision. County then attempted to file an untimely appeal and requested nunc pro tunc relief to do so which was denied as County failed to prove its failure to timely file was due to any factor other than its own negligence and staffing, and administrative issues allegedly due to COVID-19 pandemic were insufficient to justify nunc pro tunc relief in this instance. Requester’s claim for legal fees and costs was denied as waived due to Requester’s failure to file a cross appeal. The Court also found no bad faith which would justify statutory penalties on County under Section 1305.
5. Haverstick v. Pennsylvania State Police, 273 A.3d 593 (Pa. Commw. 2022)
On the day before the record at the OOR was to close, agency provided additional records not previously seen by requester. PSP had also indicated it had redacted ‘nonresponsive’ materials from the records produced. Less than 15 business days later, the OOR issued its Final Determination holding that the appeal on the issue to which those records pertained was moot. The Court held that the belated production of records and OOR’s premature decision on that issue deprived requester of any meaningful opportunity to analyze and contest any redaction or other issues regarding those records. The Court also held that ‘nonresponsiveness’ was not a permissible basis of exemption under the RTKL.
6. School District of Philadelphia v. Calefati, No. 1285 C.D. 2020, 2022 WL 108455 (Pa. Commw. Jan. 12, 2022) [*]
The District was ordered to produce student attendance records with certain identifiers redacted. Court rejected District’s arguments that release of these records would violate FERPA or that District was incapable of redacting the identifiers. The District was also required to produce the records in CSV format or other machine readable or electronic format.
7. Bethke v. City of Philadelphia, 282 A.3d 884 (Pa. Commw. 2022)
City failed to respond to request which was deemed denied. Requester eventually filed mandamus to compel turnover of the records and a motion for peremptory judgment. City then sought leave to file an appeal nunc pro tunc which trial court granted. Requester timely appealed this order to the Commonwealth Court and sought a stay of trial court actions pending his appeal on the grant of the nunc pro tunc appeal. The Court granted the motion for stay as Requester was placed in the awkward position of having to defend an action upon which he was challenging jurisdiction. Appeal was allowable as a collateral order under PRAP 313, as Court found Requester had a reasonable likelihood of success on the merits, irreparable harm was possible if the stay was not granted and no public interest would be harmed by the grant of the stay.
8. Brown v. Monroe County, No. 1300 C.D. 2022, 2022 WL 1539068 (Pa. Commw. May 13, 2022)
Court affirmed trial court denial of request when county proved it had destroyed the records requested pursuant to its record retention policy under Section 507.
9. McFalls v. Municipality of Norristown, No.737 C.D. 2022, 2022 WL 1553720 (Pa. Commw. May 17, 2022 )
Although the Court affirmed the OOR’s denial of attorneys’ fees under Section 1304, it remanded to the trial court to determine if civil penalties were in order under Section 1305 based on a finding that the trial court had applied the wrong standard. “The appropriate inquiry in a determination of bad faith for the purposes of imposing a penalty under Section 1305(a) of the RTKL is not on the motivation of the requester in requesting documents, but on the actions and behavior of the agency to which the request is made. To that end, while we acknowledge that the imposition of sanctions under Section 1305(a) of the RTKL requires evidence of bad faith and that the burden of proving an agency’s bad faith is on the requester, we observe that “[e]vidence of an agency’s failure to perform its mandatory duties[ ] may suffice” citing Uniontown Newspapers.
10. Haverstick v. Office of the Attorney General, 273 A.3d 600 (Pa. Commw. 2022)
The Court held that ex parte communications between OAG appeals officer and OAG counsel, although unclear as to whether appeals officer is ‘internal’ or ‘external’ as to the agency under Section 708(b)(10)(i)(A), were ill-advised and should be avoided. The determinative factor, however, the Court announced was that such communications, particularly as described in the OAG’s own filings as ”logistical,” did not fit the definition of “internal predecisional deliberations” and thus were not exempt as such.
[*] Designates that a member of Nauman Smith’s Right-to-Know/Media Practice Group represented a party in that appeal. If you would like more information on the cases cited or on a Right-to-Know or Sunshine Act issue, please call our office at (717)236-3010.