Dec 23, 2020 4 min read

The state Supreme Court is requiring the state Department of Corrections to pay legal fees to the Herald-Standard after the justices found the agency acted in “bad faith and willful and wanton behavior” in its response to the newspaper’s open records requests several years ago.

The decision Tuesday upholds a previous lower court ruling from 2018 that the DOC should pay $118,458 in legal fees to Uniontown Newspapers Inc., the newspaper’s parent company, for costs associated with procuring documents associated with the open records request.

Michael Joyce, an attorney for the Pittsburgh-based law firm of Saul, Ewing, Arnstein & Lehr that represented the newspaper, called it an historic case for open records and the largest monetary sanction against a government agency in the state’s history.

“It’s really a gigantic win for open government and open records,” Joyce said. “I think it sends a message to government agencies in Pennsylvania and elsewhere in the country (that) if you ignore your basic duties under these open record laws, there are severe sanctions that can follow.”

The 6-1 ruling by the justices found that the DOC acted in bad faith in responding to the newspaper’s open record requests, while a narrower 4-3 decision ruled that the newspaper was entitled to the legal fees. The DOC must also pay a $1,500 civil penalty.

The legal fight stemmed from right-to-know requests filed by the newspaper in 2014 while reporting on whether a fly ash dump located near SCI-Fayette in LaBelle was causing higher cancer rates in inmates lodged at the state prison.

The state’s Office of Open Records determined the newspaper’s request fell under right-to-know law, but the DOC failed to disseminate all of the requested information. The newspaper was forced to go to Commonwealth Court to have the order enforced to retrieve all of the documents.

The newspaper later sued the DOC for repayment of $215,190 in legal fees due to the lengthy court process. A Commonwealth Court judge agreed last year that the DOC “acted in bad faith” and should be required to pay the newspaper $118,458, a little more than half of the request.

The DOC appealed that ruling, which brought the case before the state Supreme Court. The state’s Right-To-Know Law that went into effect in 2009 allows for a requestor’s attorney fees to be paid by a government agency, along with a civil penalty if it was determined it purposefully withheld the requested documents.

Herald-Standard publisher Michael Scott called the decision a victory for open records, regardless if they’re requested by journalists or concerned citizens.

“This has been a long road for the Herald-Standard, but Tuesday’s decision will have far-reaching impacts that will protect requests for anyone who makes a right-to-know request in Pennsylvania,” Scott said. “We have always believed we were entitled to the information requested under state law, and are thankful to have a company behind us that realized the importance of this fight.”

DOC spokeswoman Sue McNaughton said they do not discuss legal matters.

“It’s been an incredible battle over the past six years,” Joyce said of the longest running open records case in the state’s history. “It shows you won’t have to bear the whole cost (of requesting records).”

Justice Sallie Updyke Mundy wrote the opinion, and was joined by Chief Justice Thomas Saylor and Justices Max Baer and Christine Donohue. The opinion states that the “fee shifting provision” in the Right-To-Know Law allows for reasonable attorney fees and legal costs when a court reverses a government agency’s decision.

“If we were to accept DOC’s position that Section 1304 only permits recovery of attorney fees and costs where the court reverses the determination of the appeals officer or the agency deems the request denied, a requester would have less rights under the RTKL than under the repealed Right to Know Act,” the opinion states.

Justice David Wecht wrote concurring and dissenting opinions and was joined by Justice Debra Todd, while Justice Kevin Dougherty wrote a dissenting opinion expressing doubt that DOC acted in bad faith.

“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,” he wrote.