Commonwealth Court Weighs in on New RTKL

The Right-to-Know Law which was amended in 2008, permits with certain exceptions, broad access by the public to governmental agency records.  When an individual’s request is denied, a requester may file an appeal with the Office of Open Records (OOR).  The reviewing officer must then review the government agency’s decision and issue an opinion and order disposing of the appeal.  If either party is dissatisfied with the OOR decision, an appeal can be taken to the Commonwealth Court or the court of common pleas depending on the type of agency.  Recently, the first Right-to-Know Law appeal was decided by Pennsylvania Commonwealth Court.

In the case of Bowling v. Office of Open Records, Requester, a reporter for the Pittsburgh Tribune-Review, filed a request with the Pennsylvania Emergency Management Agency (PEMA) seeking all invoices and contracts for first responder equipment and services that were purchased with Homeland Security funds.  PEMA provided the requested records but redacted the names of all recipients of the goods and services and also redacted information regarding the Buffer Zone Protection Program (which identifies sites within the Commonwealth that the Department of Homeland Security designates as “critical infrastructure”).  Requester appealed this determination with the Office of Open Records which sustained PEMA’s determination.  Requester filed an appeal with the Commonwealth Court.  The Court addressed the manner of judicial review of an OOR determination and (1) whether the records which identified the recipients are public records and (2) whether the records are exempt because their release would threaten public safety.

With respect to the standard of review of an OOR determination, the Court held that an appellate court may substitute its own findings of fact for that of the agency.  In addressing the merits of the case, the Court found that because there was no dispute between the parties as to whether the information was a “record’ pursuant to the Law, the information was deemed to be a record. Of most importance to governmental agencies, the Court acknowledged that PEMA records can be exempted if production of the same would threaten the public safety.  Nevertheless, the Court found that PEMA’s overall redaction was too broad.  The Court held that PEMA must differentiate between those goods and services which are likely to threaten public safety and those that would not.  The Court observed that it was unlikely revealing the recipient of bungee cords would harm public safety but revealing recipients of computer servers might. Although recognizing the “enormity of the task” before PEMA, the Court found that the amended Right-to-Know Law enacted by the Legislature evidences a commitment to providing greater access to public records.

What does this mean to a governmental agency?  Because the amended Right-to Know Law permits greater access, agencies have been required to carefully review requested records.  Now, after Bowling, the review must be even more in-depth. Bowling has increased the responsibilities of the open-records officer and the agency.  No longer can an agency rely upon blanket exemptions or redactions and cursory reviews will no longer be feasible.  A case by case, even a sentence by sentence, analysis and determination must be made as to the contents of the records to determine what falls within an exception and what must be disclosed.