Commonwealth Court Reins in OOR

As more and more appeals from the Pennsylvania Office of Open Records (OOR) make their way to Commonwealth Court, the ability of OOR to expansively order the release of records is becoming more limited.  Several recent Commonwealth Court decisions have established parameters which impact public access to school district records. 

In a January 6, 2011 decision, the Commonwealth Court ruled that e-mails from an individual Township Commissioner’s home computer were not public records.  In Silberstein v. Commonwealth, the Court reasoned that one official is not a local agency and has no authority to make decisions binding upon the local agency.  As an individual public official, the Township Commissioner in that case had no authority to act alone on the Township’s behalf.  Therefore, information located on an individual public official’s personal computer does not fall under the Right-to-Know Law’s (RTKL) definition of a public document because it is not a record of the Township’s activity.  As a caution against potential abuse, the Court noted that the current RTKL has effectively established safeguards to protect against the possibility that an agency may attempt to shield public records from disclosure by simply storing the records on a computer that is not in the physical possession or control of the agency.  The Open Records Officer of the agency must inquire of each public official as to whether they have possession, custody or control of a requested record that could be deemed public.  The Open Records Officer must then determine whether the record is public, whether the record is subject to disclosure, or whether the public record is exempt from disclosure.  After making these inquiries in Silberstein, the Court determined that the Township Commissioner’s e-mails were personal and not public records.

Another Commonwealth Court decision issued on January 6, 2011 did not directly arise from an appeal from an OOR decision.  In Millford Township v. McGogney, although the Township Solicitor instructed the Township’s Open Records Officer not to release unredacted legal invoices which had been requested, especially when the requester had pending litigation against the Township, the Open Records Officer nevertheless released unredacted legal invoices.  This necessitated an injunction filed by the Solicitor to prevent the requester from releasing the unredacted records to others and also to return the records to the Township.  The requester relied upon the RTKL and argued that the Open Records Officer had the authority under the RTKL to determine whether or not to release the records and refused to return the documents.  The Commonwealth Court held that the attorney/client privilege trumped the ministerial duties of the Open Records Officer under the RTKL.  Since the attorney/client privilege is “owned” by the client, in this case, the Township, the Open Records Officer had no individual authority to waive the attorney/client privilege, and therefore, did not have the statutory authority to override the Solicitor. 

On January 31, 2011, the Commonwealth Court in Honaman v. Township of Lower Merion put an end to the growing practice that had developed in the real estate settlement business since the RTKL went into effect.  Settlement companies had been using the RTKL as a means to avoid no lien letter and tax certification fees which pre-dated the RTKL.  Almost from its first decision, OOR consistently ruled in favor of the settlement businesses and ordered local municipalities and school districts to obtain the records from their tax collectors and turn them over to the settlement companies, all at only $0.25 per page rather than the previous fees for no lien and tax certification letters.  This opened the floodgate for similar-type requests.  The Commonwealth Court has now ended this practice.  In fact, the Court went further to hold that records of the tax collectors are not accessible through the RTKL at all.  Put simply, if someone desires to obtain those records, they must contact the respective tax collectors and submit the required no lien and tax certification fees. 

Finally, in a recent decision issued on April 4, 2011, the Commonwealth Court addressed a request for records and reports of academic honor code violations in Sherry v. Radnor Township School District.  Procedurally, the requester asked permission from OOR to depose two witnesses or require OOR to conduct a hearing.  The Commonwealth Court specifically held that a requester had no right to discovery as part of the right-to-know process or any specific due process protections.  Further, the Commonwealth Court held that the requested records were exempt as non-criminal investigation records and that release of the records was also precluded by the Family Educational Rights and Privacy Act (FERPA). 

Our office will continue to monitor new Commonwealth Court decisions and periodically report on those having significant impact on school district operations. 

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