When a Pennsylvania agency receives a request for records under the Right-to-Know Law, it must take certain steps before responding. It is required to (1) promptly notify and advise each person who might have possibly responsive records, (2) obtain all such materials from those individuals and (3) review and assess the collected items to determine what is to be disclosed. Once that process is complete, its open records officer is in a position to issue the agency’s final response to the request.
A recent decision shows what can happen to an agency that does not fulfill these responsibilities. In Uniontown Newspapers v. Pennsylvania Department of Corrections,1 a newspaper asked for records about illnesses suffered by prison inmates exposed to fly ash from a nearby dump. The agency’s open records officer forwarded the request via email to a bureau within the agency, without explanation. A bureau representative told the officer that the request related to a specific agency investigation – even though the newspaper’s request did not say that. The officer did not ask to review any records to assess the representative’s conclusion. Nor did the officer ask for any records searches to be conducted. The officer simply denied the request as seeking records relating to an investigation (a type of record exempt under the Right-to-Know Law) based solely on the representative’s erroneous narrowing of the scope of the request.
The newspaper, apparently suspicious of the agency’s contention, appealed to the Office of Open Records, and even took the unusual step of filing an enforcement action in Commonwealth Court. The office and court each ruled against the agency and ordered full disclosure to the newspaper. But the agency only made a series of partial disclosures throughout the litigation. Almost four years had passed after the newspaper first submitted its records request, yet it still did not have all the records it had asked for.
The court decided the agency had acted in bad faith. The “primary problem” was that the agency failed to give specific and separate consideration to the request. Instead, the agency just presumed (incorrectly) that the newspaper was trying to obtain records from a particular investigation. Based on that assumption, the agency denied the request. It was not until “well into the litigation” that the agency actually searched for records. The court concluded that denying access without trying to obtain and evaluate any records constitutes bad faith. And even after the agency did start to look for documents, it made only a series of “piecemeal, incomplete disclosures” that failed to comply with the orders for full disclosure. This, too, was bad faith.
As a result of the agency’s transgressions, the court imposed the maximum statutory penalty of $1,500. The court also left open the possibility of a $500 per day fine for future noncompliance, as well as an award to the newspaper of its attorneys’ fees.
The proceedings in Uniontown Newspapers are ongoing, so it remains to be seen what might be forthcoming in the case. Regardless, the court’s decision shows that agencies must be mindful of their public records obligations, and need to treat requests with individualized attention by following each step required by the Right-to-Know Law.