On December 22, 2020, the Pennsylvania Supreme Court decided the case of Uniontown Newspapers, Inc. v. Pennsylvania Department of Corrections, upholding the largest monetary sanction ever imposed against a governmental entity in Pennsylvania history under the Pennsylvania Right to Know Law (“RTKL”). The state Supreme Court upheld a lower court decision awarding a records requester $118,458.37 in attorneys’ fees and $1,500.00 in sanctions. In addition to holding that an award of attorneys’ fees was reasonable based on the actions of the government agency in this case, the Supreme Court also provided additional clarification regarding the duties of an agency’s Open Records Officer and their requirement to act with diligence in responding to a request for records.
In Uniontown, a newspaper reporter sent a records request to the Pennsylvania Department of Corrections seeking certain health-related information of inmates and staff at a prison facility in Fayette County. Ultimately, the Court found that the Department of Corrections (“DOC”) did not make a good faith effort to establish whether it possessed or controlled records responsive to the request. The Court held “[s]pecifically…the DOC made no search for responsive records at the request stage, instead identifying the existence of responsive records only after litigation had begun.” The Court also clarified the role of the governmental agency’s Open Records Officer and criticized the Open Records Officer for the Department of Corrections for “slavishly relying” on representations made by other officials within the Department. The Court specifically held that an Open Records Officer fails to fulfill their obligations under the Right to Know Law “simply by relying on the representations of others without inquiring as to what investigation was made and without reviewing the records upon which the individual responding to the request relied.” Additionally, the Court reiterated that the RTKL does not contain any exceptions for refusing to search for records because it would be too burdensome to do so based on the size of the agency. Thus, the Court concluded, the Department of Corrections “acted in bad faith at the request stage, in significant part because the open records officer failed to act with diligence in response to [the newspaper’s] request.”
The Court also held that an award of attorneys’ fees was reasonable in this matter because the Office of Open Records reversed the Department of Corrections’ determination and the DOC acted in bad faith. Acknowledging that there was an ambiguity in the language of the Right to Know Law, the Court agreed with the interpretation of the Commonwealth Court in finding that the best reading of the law is to authorize attorneys’ fees when an agency determination is reversed. The DOC advanced the position that sanctions were only appropriate where a Court reversed the final determination of an appeals officer. The DOC argued that in this case, the appeals officer found in favor of the requester, and that decision was not overturned. The Supreme Court noted that if it accepted the position of the DOC, a requester whose request was denied (even in bad faith) by an agency would have no recourse to seek sanctions against an agency which denied a request and had that decision overturned by an appeals officer. This could lead to absurd results, in that the effect of the Department’s interpretation of the law meant that “a requester who is successful at the OOR is prevented from seeking attorney fees and costs if an agency does not file an appeal…the practical effect of DOC’s position is to limit a requester to a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.” The language of the Uniontown case should clearly signal to governmental agencies that they could be subject to the imposition of sanctions and attorneys’ fees upon an adverse determination by an open records appeals officer, and not only after that decision is overturned by a Court.
Governmental agencies should realize two key points from the Uniontown case. First, open records officers cannot merely rely on representations from other agency employees or officials that requested documents do not exist or are subject to the Right to Know Law’s disclosure exceptions. Open Records Officers must conduct an independent search for records or clearly document the search efforts of other agency members. It is highly recommended that an agency establish (or update) search protocols to best protect itself against any claims of bad faith on the part of the agency. Second, agencies must understand that they are subject to the imposition of sanctions and fees upon an adverse determination at the appeals officer level. Potentially, this could extend to the reversal of deemed denials where agencies fail to timely respond to a records request if a Court were to find that the agency’s failure was particularly egregious.
Maiello Brungo and Maiello’s public sector attorneys are experienced in the intricacies of the Right to Know Law and can assist your governmental entity in ensuring compliance. Proper analysis of a request will ensure that your agency is complying with the law, retaining those documents which are excepted under the law, and avoiding claims of bad faith.
