Commonwealth Court Weighs in on Large RTKL Requests

Open records_logo stackedThis week, Commonwealth Court issued a ruling in Pennsylvania State System of Higher Education (SSHE) v. Association of Pennsylvania State College and University Faculties (APSCUF).

One of the issues was whether or not the original Right-to-Know Law request submitted by APSCUF to SSHE was specific enough under Section 703 of the RTKL. On that issue, the court upheld the OOR’s finding that the request was specific.

The court then discussed SSHE’s position that, because the request was for such a large volume of records, it couldn’t have responded within the time period established by the RTKL. (SSHE “contends that it was incapable of reasonably discerning whether any exemptions applied to this matter because it neither had the time nor resources to fully review the sizeable volume of records produced by Requesters’ requests in the time-period it was given to do so.”)

On that issue, the court held that:

Just because a request is for a large number of records does not mean that an agency is excused from its obligation to produce the requested documents. Section 1308(1) of the RTKL, 65 P.S. §67.1308(1), prohibits a policy or regulation that places “a limitation on the number of records which may be requested or made available for inspection or duplication.” Correspondingly, just because a request is large does not mean that an agency should be foreclosed from carrying out its statutory duty to determine whether exemptions apply when it is incapable of reviewing the requested documents within the time-period it is given.

In Section 708 of the RTKL, the General Assembly made a legislative determination that certain classes of records need not be made public. As our Supreme Court expressed in Levy v. Senate of Pennsylvania, 65 A.3d 361, 382 (Pa. 2013), although the legislative intent behind the RTKL resulted in “ensuring expanded and expedited transparency in our government,” it was also the “legislative intent to shield numerous categories and subcategories of documents from disclosure in order to protect, inter alia, the Commonwealth’s security interests and individuals’ privacy rights.” Levy, 65 A.3d at 382 (citing Sections 102, 305 and 708 of the RTKL, 65 P.S. §§67.102, 67.305, 67.708(b)). Reversing our decision in Signature Information Solutions, LLC v. Aston Township, 995 A.2d 510 (Pa. Cmwlth. 2010), where we held that if an agency does not give a reason why a document is exempt in the response that issue is waived, our Supreme Court reasoned “the Signature Information Rule undermines the specific legislative intent to shield these documents from disclosure, merely as a consequence of an open records officer’s failure to list a legitimate reason for nondisclosure on the agency’s initial written denial.” Levy, 65 A.3d at 382.

If the request is so large that an agency does not have the ability to process the request in a timely manner given the enormous number of records requested, it would similarly undermine the specific legislative intent that every record be reviewed so that free and open discussions can take place within government when a decision is being deliberated, and that agencies should be afforded a sufficient opportunity to conduct investigations to protect the Commonwealth’s security interests and the public’s privacy rights.

Nonetheless, just because an agency claims it neither has the time nor resources to conduct a document-by-document review within the time-period required by the RTKL does not make it so. The agency making such a claim has to provide the OOR with a valid estimate of the number of documents being requested, the length of time that people charged with reviewing the request require to conduct this review, and if the request involves documents in electronic format the agency must explain any difficulties it faces when attempting to deliver the documents in that format. Based on the above information, the OOR can then grant any additional time warranted so that the agency can reasonably discern whether any exemptions apply.

Accordingly, the OOR’s final determinations are affirmed to the extent that they determined [APSCUF’s] requests are sufficiently specific under Section 703 of the RTKL, but are vacated and remanded for it to make determinations in accordance with this opinion.

In other words, Commonwealth Court has held that an agency claiming “it neither has the time nor resources to conduct a document-by-document review within the time-period required by the RTKL” must provide the OOR with certain information and that the OOR must then decide whether or not to grant additional time.

At this point, it’s not known whether either party in this case will appeal to the Supreme Court. The OOR will analyze the decision and apply it to our current appeal process and procedure on a case-by-case basis.

EDITED TO ADD (Feb. 14, 2017): This week, the Supreme Court of Pennsylvania denied a petition for allowance of appeal in this case, so the Commonwealth Court ruling stands.

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