Pennsylvania’s Right-to-Know Law:

Practical Tips for Reporters and Editors

 

By Jonathan Skowron, Esq.
Chair, Communications and Media Industry Group
Schnader Harrison Segal & Lewis LLP

 

Pennsylvania’s Right-to-Know Law (65 P.S. § 67.101 et seq.) is the most recent in a series of laws granting public access to a wide range of state and local government documents and information. Under the law, all government records in the possession of an agency are presumptively public, and the government generally bears the burden of proving that its records are exempt from disclosure. Further, even records in the possession of non-government third parties can be reached under the law in certain circumstances—for example, if the document in question directly relates to a government function performed by that third party.

As a result, the Right-to-Know Law can be a very powerful tool for reporters and other media personnel in the never-ending quest to hold officials accountable to the public. That said, the law is not a model of clarity, and requesters often find their requests denied due to procedural missteps and inartfully drafted requests. Here are a few tips to help you draft and file effective and successful Right-to-Know Law requests and appeals.

 

1. Try informal requests first.

Always try to get access to the information you are seeking informally before filing a Right-to-Know Law request. Is the information already available online, or in person at the agency’s office? Can you call and make an informal request to a contact you may have at the agency? Very often, informal requests can provide access to what you need without the possible time, expense, and headache of dealing with the formal Right-to-Know process.

 

2. Use the agency’s form.

Many agencies have their own Right-to-Know form on their website. If so, use it. The Pennsylvania Office of Open Records (“OOR”) also has a form on its website that must be accepted by any agency, but each agency will of course always be more familiar with its own paperwork. Your goal should be to make it as easy as possible for the agency to produce the records you want, so if they have their own form, use theirs, instead of the OOR’s form.

 

3. Be as specific as you can in your request.

The Right-to-Know Law includes many grounds for denying a request, but one of the most common is a denial for lack of specificity under 65 P.S. § 67.703. Basically, if the request is too broad, or if the agency cannot tell what records you are actually seeking in your request, they can deny on this ground alone. To avoid this, follow these tips: First, do not ask for the answers to questions (e.g., “how much did the agency spend on X?”), but for documents that are likely to provide that information (e.g., “documents showing total agency expenditures on X”). Second, identify a specific set of documents by type and/or recipient. For example, do not just ask for “reports,” but “expense reports,” or do not just ask for “emails,” but “emails sent to or received by Official X.” Third, make sure to identify the specific transaction or activity of the agency in which you are interested. Thus, do not just ask for “all emails sent by Official X,” but rather, “all emails sent by Official X regarding topic Y.” Fourth, limit the time period of the request as much as possible, and avoid broad phrases such as “any and all” or “including but not limited to.” Finally, and to summarize, give serious thought to the documents you are actually seeking before drafting a request, and do not use requests simply to go on “fishing expeditions.”

 

4. Keep track of deadlines.

The agency must respond to your request within five business days under 65 P.S. § 67.901, but they can then extend that time period by another thirty calendar days under 65 P.S. § 67.902 if necessary—for example, if the records are located off-site, due to staffing limitations, the need for legal review, or if the request as filed failed to follow agency policy. You should keep track of these time limits carefully. If the agency fails to respond by the deadlines, the request will be “deemed denied,” which starts the clock running on the 15 business day deadline for you to appeal under 65 P.S. § 67.1101. In other words, if the agency simply ignores your request, and you don’t keep track of the deadlines, you could very easily miss your chance to appeal to the OOR and thus have to start all over with a new request.

 

5. Tips on appeal to the OOR.

If your request is denied outright, or the agency does not respond to your request and you appeal to the OOR, be sure to provide copies of all agency correspondence as part of your appeal packet, as this will be important to show that your appeal is timely. On appeal, the agency will bear the burden of showing that the documents in its possession are exempt from disclosure, so technically the requester need not provide any legal argument or evidence. That said, if you have legal arguments, include them, and if you have any relevant evidence (for example, if the agency has produced similar records for you in the past), include that as well. Although the OOR can hold evidentiary hearings, it rarely does, so make sure that any evidence you submit is supported by an affidavit. Also, all previous OOR decisions are available on their website, so read the decisions in similar cases to help craft any arguments in your appeal. Finally, under the Right-to-Know Law, agencies are permitted to raise new grounds for denial before the OOR that were not raised in their original response letter. If this happens, ask the appeals officer in your case for more time to respond to these new issues, as such extensions are frequently given as a matter of course.

After the OOR issues its appeals decision, either party may seek further review by the local Court of Common Pleas or the Commonwealth Court (depending on the agency at issue). Although requesters can (and often do) represent themselves at the OOR level, once an appeal reaches the courts, it is always advisable to seek professional legal representation.

This list of tips is by no means exhaustive, but if followed, it will help you avoid many of the most common pitfalls requesters face in filing and pursuing Right-to-Know requests in Pennsylvania.

 

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BIO:

Jonathan B. Skowron, Schnader Harrison Segal & Lewis LLP, jskowron@schnader.com, is the Managing Partner of Schnader’s Pittsburgh office, a partner in the Litigation Services Department, and the chair of the Communications and Media Industry Group. He has significant experience in media-related cases, as well as in professional liability, product liability, insurance, business tort and contractual litigation. Mr. Skowron is also active in pro bono work at Schnader, including prisoners’ rights cases, First Amendment litigation, immigration matters, and criminal defense.