Uniontown Newspaper v. PA Dept of Cor, Aplt ( 2020 )

[J-49A-2020 and J-49B-2020] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
UNIONTOWN NEWSPAPERS, INC., D/B/A : No. 76 MAP 2019
THE HERALD STANDARD; AND :
CHRISTINE HAINES, : Appeal from the Order of the
: Commonwealth Court at No. 66 MD
Appellees : 2015 dated March 23, 2018.
:
: ARGUED: May 21, 2020
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS, :
:
Appellant :
UNIONTOWN NEWSPAPERS, INC., D/B/A : No. 77 MAP 2019
THE HERALD STANDARD; AND :
CHRISTINE HAINES, : Appeal from the Order of the
: Commonwealth Court at No. 66 MD
Appellees : 2015 dated October 29, 2018.
:
: ARGUED: May 21, 2020
v. :
:
:
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS, :
:
Appellant :
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: December 22, 2020
In my view, the record does not support the determination that appellant,
Department of Corrections (DOC), acted in bad faith in replying to requests for documents
by appellees, reporter Christine Haines and The Herald Standard. Accordingly, I
respectfully dissent.
The record shows the email request by appellees was “inspired by” a report issued
by the Abolitionist Law Center entitled, “No Escape: Exposure to Toxic Coal Waste at
State Correctional Institution Fayette” (the report). Uniontown Newspapers, Inc. v. Pa.
Dep’t of Corr., 151 A.3d 1196, 1200 (Pa. Cmwlth. 2016) (Uniontown I). The report
described, inter alia, SCI-Fayette inmates’ complaints of cancer, pulmonary, and
gastrointestinal disease, and linked the complaints to the penitentiary’s geographical
proximity to a fly-ash dump site. Haines’s request for documents, dated several weeks
after the report’s publication, was vague. It did not mention the report or expressly seek
documentation relating to the claims in the report. Rather, it sought documentation of
“illnesses” generally, the numbers of persons with “those illnesses,” and expressed
“particular” interest in “various types of cancer” and “respiratory ailments” reported at SCI-
Fayette.1
At the time DOC received the request, it was jointly involved in an investigation
regarding the report with the Department of Health (DOH). DOC’s Open Records Officer
(ORO), Andrew Filkosky, to whom the records request was addressed, relayed the
request to DOC’s Health Care Bureau, which advised him the requested records related
to the investigation. Accordingly, DOC denied the request in partial reliance on the non-
criminal investigation exception contained in Section 708(b)(17) of the Right to Know Law
1 The email request stated: “I am seeking documentation of illnesses contracted by
inmates and/or staff members at SCI-Fayette. I am not seeking identifying information,
only the types of reported contracted illnesses and the number of inmates or staff
members with those illnesses. I am particularly interested in various types of cancer
reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If
there is also information comparing the health at SCI-Fayette with the health at other state
correctional facilities, that would be helpful.” RTKL Request, 9/25/14; Uniontown I, 151
A.3d at 1200.
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 2
(RTKL). See 65. P.S. §67.708(b)(17) (excepting “[a] record of an agency relating to a
noncriminal investigation”).
Appellees appealed the denial to the Office of Open Records (OOR) which
determined the non-criminal investigation exception did not apply. DOC did not appeal
from the OOR order; instead, DOC timely turned over fifteen pages of charts and data,
which identified the number of inmates treated for various forms of illness, showing rates
of cancer, pulmonary and gastrointestinal disease at SCI-Fayette from 2010-2014,
including a comparison across institutions, comparisons of deaths from natural causes to
cancer deaths, and a spreadsheet of cancer deaths by type of cancer from 2003-2013.
In response to the appellees’ request to verify DOC’s disclosure was complete, DOC
additionally disclosed a press release, a water analysis of SCI-Fayette, an investigative
summary by a physician, a redacted medical records review by a physician, a redacted
list of cancer patients at SCI-Fayette, statistics regarding oncology treatments and
internal emails discussing the investigation. DOC also averred it had no data comparing
overall SCI-Fayette illness rates with other SCIs, and it did not maintain health records of
its staff.
Importantly, in my view, in a later fact-finding stage pertaining to appellees’ petition
for sanctions, the Commonwealth Court determined DOC’s initial “construction” of the
request as pertaining to documents related to the investigation “alone does not evince
bad faith.” Uniontown Newspapers v. Pa. Dep’t of Corr., 185 A.3d 1161, 1171 (Pa.
Cmwlth. 2018) (Uniontown II) (emphasis added). The court instead determined the
problem was “that DOC did not give any specific, separate consideration to the [r]equest
at all.” Id. (emphasis in original). However, the record clearly shows, when OOR informed
DOC that the non-criminal investigation exception did not apply, DOC searched its
records and timely disclosed the documents described above. Indeed, the
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 3
Commonwealth Court, despite determining there was no “separate consideration to the
[r]equest at all,” described DOC’s request-responsive disclosure as consisting of “charts
depicting the following: the number of patients with pulmonary conditions in all SCIs (from
Chronic Care Clinic records); the number of inmates with cancer in all SCIs (2010-13);
inmate cancer deaths by institution (2010-13); inmate cancer deaths at SCI-Fayette
(2003-13); the number of inmates treated by Pharmacy Contractor for pulmonary ailments
(2010-14); and the number of inmates treated by Pharmacy Contractor for gastrointestinal
ailments (2010-14).” Id. at 1165. The court also noted that, when asked to verify the
completeness of its disclosure, the DOC advised appellees additional review was
necessary to “see if other records existed that were responsive[,]” id. at 1165, and
thereafter disclosed memos and emails from physicians involved in the investigation, as
well as “cancer patient tracking charts from the Oncology Database for DOC as of
November 2014, and for SCI-Fayette as of January 2015.” Id. at 1166.
In light of these circumstances, the single-judge Commonwealth Court’s
determination DOC acted in bad faith is incongruous. The original request was arguably
ambiguous, as it sought documents regarding “illnesses contracted by inmates” generally,
with a “particular[ ] interest[ ]” in “various types of cancer” and “respiratory ailments
reported.” And, not surprisingly, the court held DOC did not act in bad faith by presuming
the request related to documents pertaining to the investigation. But, after DOC was
informed the Section 708(b)(17) exception did not apply, and in the face of DOC’s
subsequent disclosure of the documents responsive to the request, the court
nevertheless determined DOC acted in bad faith by giving the request no “separate”
consideration. Uniontown II, 185 A.3d at 1171. The learned majority observes the court
“by implication” faulted Mr. Filkosky “for his slavish reliance on the Health Care Bureau’s
conclusion that the only responsive records related to the . . . [i]nvestigation.” Majority
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 4
Op. at 14. But from my perspective, after DOC was informed the non-criminal
investigation exception did not apply, it did conduct a search, which resulted in its
disclosure of numerous responsive documents.
Moreover, if there were other “responsive records” that fell outside the oblique
initial request for “illnesses” generally, perhaps unrelated to the investigation, any
responsive “search” for them would indeed be burdensome, as the request was so ill-
defined that the DOC’s Health Care Bureau and ORO would have little idea regarding
what records precisely were being sought and would satisfy the request. Thus, it seems
to me, when informed the non-criminal investigation exception was inapplicable, DOC
disclosed the data pertaining to the imprecise request as fully as it reasonably could.
There appears to be no dispute the documents disclosed at that time were responsive to
the request, but it appears the court nevertheless determined there was bad faith in failing
to disclose additional documents. Even beginning, as we must, from a presumption of
transparency when resolving disputes regarding the disclosure of government records
under the RTKL, see ACLU of Pa. v. Pa. State Police, 232 A.3d 654, 656 (Pa. 2020), I
view the documents DOC disclosed as responsive enough to overcome a claim of bad
faith, given the nature and timing of the request, and the salience of the documents
actually produced.
I also note that before the OOR, DOC asserted it possessed records it deemed
exempt based on the advice of counsel, who “[c]ritically,” submitted a verification to the
OOR, “without ever obtaining or reviewing the records.” Majority Op. at 6, citing
Uniontown II, 185 A.3d at 1173. On that basis, the Commonwealth Court concluded “‘by
contesting access during the appeal, without obtaining all records and assessing the
records’ public nature, DOC acted in bad faith.” Id., quoting Uniontown II, 185 A.3d at
1173. I question whether a party’s reliance on counsel’s advice in an adversarial
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 5
proceeding under the RTKL may be seen as acting in bad faith even under the RTKL’s
somewhat lenient bad faith standard designed to root out governmental lack of
transparency.2 Given the indefinite nature of the request for documents, I respectfully
disagree DOC’s search was lacking in the detail necessary to show bad faith under the
applicable standard.
2 I agree with the majority’s observation that the RTKL is remedial legislation designed to
facilitate transparency and as such, proof of bad faith under the RTKL does not require
establishing fraud or corruption. See Majority Op. at 9, citing Uniontown II, 185 A.3d at
1170 (citing Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010)).
Rather, a finding of bad faith can be supported by the showing of an abnegation of
mandatory duties by an agency, including performance of a detailed search and review
to ascertain if the requested material exists or if any exclusions apply, prior to denial of
the request. Id.[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 6