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To keep you In the Know, each week we review select Office of Open Records Final Determinations and decisions issued by the Commonwealth Court or Supreme Court.
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Gaming Control Board v. Office of Open Records, 67 MAP 2013, November 10, 2014 - Reversed
- Section 703: Requests MUST be addressed to the agency open records officer
This case brings about a major change in how requests for records will be treated by agencies. The Supreme Court held "that requestors must address their written requests to an agency's designated open-records officer in order to trigger the five-day agency obligation, the deemed denial consequence, and the appellate provisions of the RTKL, and agencies are independently responsible for determining how to implement the provision requiring a direction that employees forward such records requests to the open-records officer."
The Court held that to comply with the RTKL a Requester need make "at least some positive indication that the intended recipient of the written request is the agency's open-records officer, whether that officer be identified by name or by title, whether the requestor sends his request to the open-records officer's specific email address or fax number, or whether the requestor actually places his request directly in the hands of the open-records officer." The Court notes that mere citation to the RTKL is not enough. An agency then has five business days after the Request is received by the open records officer to respond For more detail on this case, including an agency's obligation to forward Requests, visit our judicial decisions page
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Quarels v. Pa. Dept. of Correction, 901 C.D. 2014, November 10, 2014 - Affirmed: RTKL appeal is not the proper forum to seek release from prison
- Records do not exist
- Sentencing Order Requester, an inmate with the Department of Corrections, was denied access to a "Judgment of Sentence Order" that the Department asserts does not exist in the Department's possession. On appeal to the Commonwealth Court the Requester "abandoned his RTKL Request" and asked the Court to order his release from prison. The Requester contends that without a Judgment Order the Department cannot detain him. The Court found that the Requester sought relief beyond the scope of the appeal and affirmed the denial.
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Philadelphia Daily News v. Philadelphia Prison System - Denied: Complaints and statistics related to excessive use of force
- Section 708(b)(16) - criminal investigation
- Section 708(b)(17) - noncriminal investigation
The Request sought complaints and statistics. Initially, the agency denied the request as lacking specificity. The OOR disagreed finding that because the agency was able to identify and deny access to records it understood the request.
The OOR declined to exercise jurisdiction over those records the agency denied as relating to a criminal investigation advising the Requester to file an appeal with the Philadelphia District Attorney's Office. Quoting the Commonwealth Court, the OOR upheld the agency's denial of "complaints" under the noncriminal investigation exemption stating "all complaints are exempt from disclosure whether they caused [an] investigation to commence in whole or in part or not at all." The agency provided an affidavit attesting that it does not maintain the requested statistics.
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- Granted: Investigative exemption applies only to the records of the agency conducting the investigation - Section 708(b)(16) - criminal investigationThe Commission partially denied the Request asserting that certain records are protected by the criminal investigation exemption of the RTKL. The Commission attests that prior to the Request it was aware that Requester is the subject of a federal investigation regarding the unlawful possession of wild animals. The records withheld are those that would be used as evidence by the U.S. Fish and Wildlife Service in the upcoming federal case. The OOR ordered release of the records stating the investigation in this case is being conducted by an entity other than the Commission, the United States Fish and Wildlife Service, a federal law enforcement agency, which is not an "agency" under the RTKL.
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Question of the Week:
Am I allowed to audio or video record public meetings?
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The Pennsylvania Sunshine Act expressly provides meeting attendees with a right to record those meetings: Section 711(a) states: (a) Recording devices. Except as provided in subsection (b), a person attending a meeting of an agency shall have the right to use recording devices to record all the proceedings. Nothing in this section shall prohibit the agency from adopting and enforcing reasonable rules for their use under section 710 (relating to rules and regulations for conduct of meetings).
At the recent Office of Open Records' Annual Training on the RTKL and Sunshine Act held in Harrisburg, Charles Brown, chief counsel for the OOR, advised that members of the public who audio or video record public meetings should be aware that such recordings could be illegal. In a follow up conversation, attorney Brown advised that he mentioned this only because there is a Pennsylvania criminal statute that places restrictions on recording another's voice. Attorney Brown confirmed that he is not aware of any cases where an individual has been charged under the Wiretap Act for recording public meetings as permitted by the Sunshine Act. If you need assistance with a Sunshine Act matter, contact us at 717-657-1597 or via email at info@recordslaw.com to see if we can help.
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IMPORTANT: The answers to these questions should not be deemed legal advice or be acted upon without prior consultation with appropriate professional advisors.
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Learn more about the RTKL and how it affects you, your agency or your business
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OOR Annual Training held Oct. 22, 2014
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If you missed the 2014 Annual Training presented by the Office of Open Records in Harrisburg, you can watch it courtesy of PCN TV here. |
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Got RTKL issues? We can help.
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Has a denial or failure to respond to a request resulted in an appeal or the necessity of an appeal to the Office of Open Records or beyond? The RTKL and OOR procedures establish a very rapid response period to appeals with little time to get up to speed on the status of the law. If you have a RTKL matter, it is important that you seek legal guidance as soon as possible. Audrey handles RTKL matters for private citizens, media, and government agencies in all Pennsylvania counties including appeals before the Office of Open Records, courts of common pleas and Commonwealth Court.
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Our goal is to help make your job as the Agency Open Records Officer responding to Right to Know Request as efficient and painless as possible. Giving the right response from the beginning helps to avoid protracted and costly litigation before the Office of Open Records or courts.
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Audrey offers consulting services to review your current policies, draft new policies or revise existing policies, and provide a detailed plan on how to manage records and respond to RTKL requests in an efficient and cost effective manner that increases public confidence in your agency.
Audrey is also available for customized training sessions or to speak at your upcoming meeting or conference.
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 | | Happy Fall! |
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