Improving Transparency in Pennsylvania

The Pennsylvania Bar Association Quarterly recently published “Six Ways to Make the Right-to-Know Law Work Better,” by attorney Zachary Gordon, based on his years of experience litigating transparency issues before administrative agencies and trial and appellate courts across Pennsylvania.

A threshold issue under the Right to Know Law (“RTKL”), is the timing for appeals from agencies denying access to records.  Those deadlines are frequently misunderstood causing requesters to miss their time to appeal. Attorney Gordon recommends amendments to the RTKL to extend the time for requesters to file an appeal.  Absent such changes, requesters must have counsel knowledgeable of the process and timelines.

When a requester appeals from an agency’s denial of access to records, the appeal is first resolved by an administrative appeal usually before the Office of Open Records. Agencies may raise new issues during this administrative appeal, and one problem that frequently arises is that agencies wait until the final day for submissions to raise new issues preventing the requester from responding. The appeals officer already has discretion to set deadlines for an appeal, so the article recommends that they include a deadline for replies into the appeal schedule.

Another problem Courts struggle with is what to do with requests that seek a large quantity of records. The article reviews Commonwealth Court decisions interpreting Section 703 of the RTKL, which details how specific a request must be. If a request is found to be specific, agencies must respond according to the prompt deadlines in the law. If a request is found to be insufficiently specific, then the agency does not have to respond. The article suggests that a better way to address large requests would be to amend the RTKL by providing agencies additional time for large requests, instead of considering them insufficiently specific.

Normally, an administrative appeal must be resolved within 30 days. This expedited appellate process is a feature of the RTKL, but sometimes this rigid deadline causes problems, such as when third parties are not properly notified of a request and lack a meaningful opportunity to participate in an appeal. The article recommends amending the law to grant the appeals officer discretion to extend this time in appropriate cases.

After the administrative appeal is resolved, the next stage in the RTKL process is litigation. Depending on which agency is involved, the litigation occurs before the Court of Common Pleas or the Commonwealth Court. The Commonwealth Court resolves cases as a typical appeal, but the Courts of Common Pleas use many different procedures, including holding a hearing. If the Courts of Common Pleas hold a hearing, the agency may be permitted to raise new evidence or new arguments. In contrast, the Commonwealth Court usually rejects efforts to raise new issues on appeal. To avoid the differing standards for raising new issues on appeal and to promote uniform procedures in RTKL litigation, the article recommends adopting a Rule of Procedure that would have Courts of Common Pleas resolve appeals using the same procedure as the Commonwealth Court.

Finally, the article reviews the current fee and penalty provisions of the RTKL and decisions interpreting those provisions and shows that it is difficult to obtain an award of fees or penalties under the RTKL. The article proposes that the RTKL be amended so that requesters be awarded fees if they substantially prevail in litigation. This is the same standard used in the Freedom of Information Act.

To read more about these issues and potential solutions, you can find Attorney Gordon’s article here.

According to the Pennsylvania Bar Association’s website, “The Pennsylvania Bar Association Quarterly is a publication of analysis and opinion regarding substantive legal issues and developments. Published in January, April, July, and October as a service to the members of the Pennsylvania Bar Association and the legal profession at large, it has a circulation of approximately 28,000 and is distributed to members of the PBA, the news media, and law and community libraries.”