State organizations support DOC in open records fight with Herald-Standard
Herald-Standard
The State Correctional Institution at Fayette in Luzerne Township is pictured in this file photo.
Melissa Melewsky
Erik Arneson
Attorneys representing the interests of government agencies across the state filed a joint brief supporting the state Department of Corrections in its ongoing legal battle with the Herald-Standard.
The brief argues that asking a government agency’s open records officer (ORO) to determine whether a right-to-know request has been adequately filed would unfairly burden them, delaying responses. The filing also argues that agencies do not have to determine if requested records actually exist before denying access.
It was filed on behalf of the County Commissioners Association of Pennsylvania, the Pennsylvania State Association of Township Supervisors, the Pennsylvania School Boards Association and the Pennsylvania Municipal Authorities Association. The organizations represent the interests of nearly 2,700 government agencies, according to the brief.
“I respectfully disagree with their legal position,” said Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association. “If the court rules with them, it will have a significant and negative impact on the public’s right to access records in Pennsylvania.”
The filing takes issue with a 2018 opinion in which Commonwealth Court Judge Robert Simpson found that the ORO and others within the DOC acted in bad faith when they failed to search for and turn over requested information about inmate illnesses in the state’s prisons to the Herald-Standard, despite being ordered to do so.
He also found the DOC, which initially denied the open records request, didn’t look for records until the paper took the case to court.
Simpson ordered the DOC to pay nearly $120,000 of the paper’s legal fees incurred during the three-year fight, which the DOC has appealed to the state Supreme Court.
The supporting brief, filed by Lancaster-based attorneys Crystal H. Clark and Rachel R. Hadrick, contended an ORO doesn’t have to look for records before denying a request, calling it an “unnecessary burden.” The attorneys argued requiring that would be “virtually impossible for smaller government organizations to comply with.”
Instead, they wrote, the law only requires an agency to make a good faith effort to determine if the record is public.
“A prompt denial with an explanation of the agency’s position that the documents are not public records gives the requestor an opportunity to adequately address the agency’s position on appeal before the (Office of Open Records) – and whether or not it’s even worthwhile to appeal the denial,” they wrote.
In the Herald-Standard’s case, the newspaper did eventually get the records, but only after taking the case to Commonwealth Court.
But Melewsky said checking to see if a record exists when a request is made is “a basic, core function of the Right-to-Know Law.”
“If that aspect of the law goes away, what’s left? Are agencies guessing if they have the records or not? The public has to have faith in the functions of the law and in the mechanisms of the law,” Melewsky said.
It could also create concerns for those making requests, she said.
“If they can’t trust the agency is looking (for the records) … that undercuts the purpose and the remedial intent of the law,” Melewsky said. “It’s a very simple requirement. An agency gets a request, they locate responsive records as a result. The law doesn’t work if that doesn’t happen.”
Erik Arneson, executive director of the state’s Office of Open Records, estimated upward of 100,000 right-to-know requests are made annually across the state. His office is the first step for someone appealing a denial of an open records request. Further appeals of that office’s ruling must go through the court system, likely forcing both sides to expend money to argue the case before a judge.
Arneson, on Thursday, said Simpson’s 2018 opinions and sanctions didn’t focus on what happened directly after the Herald-Standard’s initial RTK request to the DOC.
“Instead,” said Arneson, “the bulk of his orders focused on the Department of Corrections’ continued failure to provide responsive public records even after being ordered to do so by the Office of Open Records and the Commonwealth Court.
“In other words, the sanctions were not really tied to the department’s conduct during the request stage – the sanctions were awarded primarily based on the department’s conduct during and after the appeal stage of the right-to-know process,” he said.
He called Simpson’s decision “well-reasoned and appropriate.”
“The Supreme Court should uphold it,” Arneson said.