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 :
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: December 22, 2020
I join Part I of the Court’s opinion in full. In denying a request for records under the
Right-to-Know Law1 (“RTKL”), an agency’s Open Records Officer (“ORO”) may rely upon
1 65 P.S. §§ 67.101-67.3104.
the averments of an appropriate custodian that the responsive records fall under the law’s
non-criminal investigatory exemption. See 65 P.S. § 67.708(b)(17). However, the agency
should provide a sworn statement to substantiate a denial on that basis when the ORO
does not perform the search in question. That did not occur here. In fact, the record
demonstrates that a representative of the Department of Correction’s Bureau of Health
Care Services, Cathy Montag, relayed her conclusion as to the applicability of the
exemption to the Department’s ORO, Andrew Filkosky, in person, thus depriving the
parties of a paper trail. Filkosky, in turn, reflexively accepted Montag’s view and
(erroneously) denied the request in full. Throughout this litigation, the Department
essentially has argued that Filkosky was correct to rely upon Montag’s assessment. But
that position elides the fact that Filkosky held out that assessment as his own. Without
an attestation from Montag—the individual who, according to the Department, actually
performed the requisite inspection—there is no way to credit the agency’s final response,
either before the Office of Open Records (“OOR”) or on appellate review.
Given the Commonwealth Court’s well-documented findings, it is beyond dispute
that the Department abdicated its duty to perform a good faith search for responsive
records. The Department now claims that the court imposed a burdensome requirement
that an ORO must perform a search personally. While it is true that denials of records
requests are issued on the ORO’s authority, see id. § 67.903(3), the Department’s
assertion is a red herring, as the court said no such thing about the scope of that officer’s
obligations. Rather, it correctly applied the duty of good faith to the agency as a whole,
and found that the duty was not satisfied here. No fewer than four Department employees
(Filkosky, Montag, Bureau Director Christopher Oppman, and Department counsel Chase
DeFelice)—some of whom apparently received little to no formal RTKL training despite
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 2
routinely handling requests for health records2—received the request for responsive
health records, properly redacted and anonymized. Yet each made the same erroneous
assumption about the records at issue despite the clear language of the request. They
then failed to perform a search for responsive documents and misinformed the requesters
about the results, baldly citing disclosure exemptions that plainly were inapplicable.
Consequently, the requesters incurred hundreds of thousands of dollars in legal expenses
to litigate the refusal to release presumptively public records. Six years on, the matter
remains unresolved.
Where an ORO does not personally conduct a search but instead relies upon the
efforts of other custodians within the agency in denying a request for responsive records,
those custodians should provide an affidavit or some sort of formal statement regarding
the parameters of the search they conducted and the grounds for denial. That formality
would help to avoid the situation here, where it appears that no one at the Department
made much effort to find what the requesters were asking for, where Department
representatives communicated in person seemingly to circumvent a written record, and
where the ORO simply passed off the Bureau representative’s conclusion as his own,
necessitating costly litigation. An agency should not be able to escape liability by claiming
that the ORO was just following the advice of others. Otherwise, the statutory duty of
good faith would be rendered nugatory.
That being said, I dissent from Part II of today’s opinion because the Majority
sustains the lower court’s award of attorney fees based upon a misreading of
Section 1304 of the RTKL. As the statute’s evolution makes clear, the RTKL’s drafters
erred when they amended the prior version of that section, then found in the Right-to-
2 See, e.g., Notes of Testimony, 8/28/2017, at 28-29 (Direct Examination of
Christopher Oppman).
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 3
Know Act (“RTKA”), in an attempt to conform it with the terms of art used throughout the
new law. Accordingly, I am constrained to agree with the Department that the
unambiguous language of subsection 1304(a) forecloses an award of attorney fees here.
A brief history of the RTKL’s genesis is necessary in order to understand the
significance of the General Assembly’s blunder in the context of the matter before us.
Prior to the adoption of the RTKL in 2008, agencies were required, “[u]pon receipt of a
written request for access to a record,” to “make a good faith effort to determine if the
record requested is a public record and to respond as promptly as possible under the
circumstances existing at the time of the request.” 65 P.S. §§ 66.3-3(a), 66.3-4(a)
(repealed). The RTKA directed agencies to issue “responses” via “written notice granting,
denying or partially granting and partially denying access to a record.” Id. § 66.1
(repealed). If a Commonwealth agency failed to issue a response “within ten business
days of receipt of the written request for access, the written request for access shall be
deemed denied.” Id. § 66.3-3(a) (repealed); see also id. § 66.3-4(a) (repealed) (deeming
record requests to non-Commonwealth agencies denied if no response is sent within five
business days). Responses denying access to a record, or requests that were “deemed
denied” by operation of law, were appealable under the RTKA upon the requester’s filing
of “exceptions with the head of the agency denying the request.” Id. § 66.3-5(a)
(repealed).3 That agency head, or his designee, then had thirty days to issue a “final
3 Section 66.3-5 (“Final agency determination”) of the RTKA provided:
(a) Filing of exceptions. If a written request for access is denied or deemed
denied, the requester may file exceptions with the head of the agency
denying the request for access within 15 business days of the mailing date
of the agency's response or within 15 days of a deemed denial. The
exceptions shall state grounds upon which the requester asserts that the
record is a public record and shall address any grounds stated by the
agency for delaying or denying the request.
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 4
determination” based upon the requester’s grounds for exception. Id. § 66.3-5(b)
(repealed).
If an agency’s final determination was adverse to the requester, the requester then
could seek judicial review in the courts of common pleas or in the Commonwealth Court,
depending on whether the agency in question was a “Commonwealth agency” or a “non-
Commonwealth agency.” Id. § 66.4(a)-(b) (repealed). Reasonable attorney fees and
litigation costs were awardable under the RTKA, in the court’s discretion, if the court
“reverse[d] an agency’s final determination,” and found either of the following
circumstances:
(1) the agency willfully or with wanton disregard deprived the requester of
access to a public record subject to access under the provisions of this
act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its
final determination were not based on a reasonable interpretation of law.
Id. § 66.4-1(a)(1)-(2).
With the adoption of the RTKL, the General Assembly removed the authority to
review an agency’s response from the “agency head” and instead created a quasi-judicial
administrative appeal mechanism, by which a neutral “appeals officer” designated by the
Office of Open Records (for Commonwealth and local agencies), or by a judicial,
legislative, or law enforcement agency pursuant to Section 503 of the RTKL, reviews the
(b) Determination. Unless the requester agrees otherwise, the agency head
or his designee shall make a final determination regarding the exceptions
within 30 days of the mailing date of the exceptions. Prior to issuing the
final determination regarding the exceptions, the agency head or his
designee may conduct a hearing. The determination shall be the final order
of the agency. If the agency head or his designee determines that the
agency correctly denied the request for access, the agency head or his
designee shall provide a written explanation to the requester of the reason
for the denial.
65 P.S. § 66.3-5 (repealed).
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 5
underlying denial and “[i]ssue[s] a final determination on behalf of the Office of Open
Records or other agency.” Id. §§ 67.1101(a)-(b), 1102(a)(4). Like an agency’s final
determination under the RTKA, a final determination issued by the appeals officer also is
subject to judicial review under the RTKL. See id. § 67.1301.
As far as court costs and fees are concerned, however, the General Assembly
amended the statutory prerequisites for receiving an award. Section 1304 now provides:
(a) Reversal of agency determination.--If a court reverses the final
determination of the appeals officer or grants access to a record after a
request for access was deemed denied, the court may award reasonable
attorney fees and costs of litigation or an appropriate portion thereof to a
requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with
wanton disregard deprived the requester of access to a
public record subject to access or otherwise acted in bad
faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the
agency in its final determination were not based on a
reasonable interpretation of law.
65 P.S. § 67.1304(a)(1)-(2). By its plain terms, before a reviewing court may entertain an
award of attorney fees to a requester pursuant to Section 1304 of the RTKL, the court
must either “reverse[] the final determination of the appeals officer or grant[] access to a
record after a request for access was deemed denied,” 65 P.S. § 67.1304(a) (emphasis
added). In this case, because the Department’s erroneous denial of the original request
for access to inmate health records was reversed by an OOR-appointed appeals officer
and not by the Commonwealth Court, neither of those conditions were satisfied. Thus,
the requesters were not entitled to an award of litigation costs and attorney fees.
Notwithstanding the clear language of subsection 1304(a), the Commonwealth
Court and today’s Majority point to the alternative usage of the phrase “final
determination” in subsection 1304(a)(2) to find ambiguity in the former provision.
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 6
Significantly, the language that appears in subsection 1304(a)(2) is identical to the
language employed in subsection 66.4-1(a)(2) of the RTKA, and it is the only provision of
the RTKL that still retains a reference to the final determination of an “agency.” This is
particularly noteworthy because agencies no longer issue final determinations. Rather,
with the RTKL’s promulgation, the decision to be issued by an agency’s open records
officer to grant or deny a request for access to records was designated as a “final
response.” 65 P.S. § 67.502(b)(1). With that in mind, it is evident that the Legislature
simply failed to revise subsection 1304(a)(2) so that it conformed with the new terms of
art employed throughout the RTKL, the remainder of which accurately refer to the final
determination of an appeals officer.4
This legislative oversight is confirmed by subsection 1304(a)(2)’s contemplation of
an agency’s “assert[ion]” of “exemptions, exclusions or defenses . . . in its final
determination.” 65 P.S. § 67.1304(a)(2). For Commonwealth agencies like the
Department of Corrections, the appeals officer who issues a final determination is
selected by the OOR. As a neutral arbiter, that officer would not be “asserting”
exemptions, exclusions, or defenses on behalf of the agency. To the contrary, the agency
makes the assertions; the appeals officer merely decides if they are applicable. That the
appeals officer is not synonymous with “the agency” throughout the RTKL is further
evidenced by the fact that the former is not a party to an appeal in the Commonwealth
Court or the courts of common pleas. The appeals officer’s only role at that point is to
4 See, e.g., id. §§ 67.502(b)(2)(iii) (requiring open records officers to maintain copies
of written requests “for 30 days or, if an appeal is filed, until a final determination is issued
under section 1101(b) or the appeal is deemed denied”); 1101(b)(1)-(3) (outlining
procedures governing an appeals officer’s final determination); 1102(a)(4) (defining the
duty of an appeals officer to “[i]ssue a final determination on behalf of the Office of Open
Records or other agency”); 1301(a) (“Within 30 days of the mailing date of the final
determination of the appeals officer relating to a decision of a Commonwealth
agency . . .”); 1302(a) (“Within 30 days of the mailing date of the final determination of the
appeals officer relating to a decision of a local agency . . .”).
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 7
certify and transmit the record, evincing that officer’s quasi-judicial function. The agency
itself is tasked with defending the denial of access. That is why the appeals officer for a
Commonwealth agency ultimately issues a final determination “on behalf of the Office of
Open Records.” See id. § 67.1102(a)(4).
In the face of this, the Majority resorts to various tools of statutory construction,
even wandering briefly into the thickets of the RTKL’s legislative history as it journeys
toward its conclusion that the most natural reading of subsection 1304(a) produces “an
absurd result.” See Maj. Op. at 21, 24. But to be clear, the Legislature’s readily apparent
drafting error in subsection 1304(a)(2) could not render subsection 1304(a)’s operative
phrase—“the final determination of the appeals officer”—ambiguous. Here, the
Commonwealth Court did not reverse the final determination of the Department’s OOR-
appointed appeals officer. Consequently, no attorney fees or costs were available. While
I agree that the effect here is unusual—i.e., that a requester can receive an award of court
costs and attorney fees if an agency denies a record in bad faith and the OOR affirms the
denial (or a record is deemed denied), but that no awards are available if the OOR
reverses a bad faith denial and thereby removes the need for a reviewing court to “reverse
[the appeals officer’s] final determination”—that result is not due to any ambiguity in the
RTKL whatsoever. Instead, it is precisely what the statute now commands. As such, this
is not a case where this Court needs to, or even can, resort to canons of construction.
We simply must highlight this patent mistake and leave it to the General Assembly to
correct its own oversight. Our role allows us to go no further.
Accordingly, I would affirm the Commonwealth Court’s finding of bad faith, reverse
the award of fees and costs, and remand for further proceedings on the requesters’
unaddressed alternative grounds for sanctions.
Justice Todd joins this concurring and dissenting opinion.
[J-49A-2020 and J-49B-2020] [MO: Mundy, J.] - 8