Jan 26, 2020 4 min read

The Pennsylvania NewsMedia Association, representing more than 300 newspapers and other media organizations, and the state Office of Open Records, tasked with handling appeals in Right-to-Know cases, have supported the Herald-Standard in its fight to recoup legal fees in a years-long open records battle with the state Department of Corrections.

“Requestors (of open records) should not be forced to litigate for access and bear the entire financial burden of the same, especially when access is presumed for public records under the RTKL,” attorney Melissa Melewsky wrote in the PNA brief.

At issue in the case is Section 1304(a) of the Right to Know Law, which provides the ability to recoup legal fees expended to get open records when an agency acts in bad faith in withholding them. In October 2018, Commonwealth Court Judge Robert Simpson found that the DOC repeatedly withheld records about inmate illness requested by the Herald-Standard, despite multiple orders to turn responsive information over.

He awarded the newspaper just over $118,000 of the $215,000 spent over three years to get the information. The DOC appealed the award to the state Supreme Court, contending Simpson misconstrued that section of the RTKL, and asking the state’s highest court to reverse his decision.

Newspaper attorneys have argued the award should stand, contending the DOC “ignored its most basic duties under the Pennsylvania RTKL.”

“Instead of receiving a RTKL request from the newspaper targeted at a potential health crisis in Fayette County, giving due consideration to the nature and scope of the request, performing a good faith search for documents … and determining whether these records were public and subject to disclosure, the DOC blocked access (from the beginning),” wrote Herald-Standard attorney Charles Kelly.

“In fact,” Kelly wrote, “the DOC did not perform any search for responsive records and denied the request multiple times without even understanding what responsive information it had.”

Both Melewsky and OOR attorneys Charles Rees Brown and Joy Baxter Ramsingh, in their supporting court filings, said the ability to sanction agencies who ignore their duties under the RTKL is paramount to ensuring the law is followed.

The OOR brief noted that state courts have frequently stated that the purpose of the RTKL is to “empower citizens by affording them access to information concerning the activities of their government.”

“The Legislature determined that providing litigants with attorney’s fees when an agency withholds records in bad faith is best way to fulfill that objective,” OOR attorneys wrote.

They argued that “the law will never succeed in its transparency mission without a working enforcement mechanism.”

State lawmakers revised the RTKL in 2008, removing criminal penalties for not turning over open records and replacing them with civil penalties, including the ability to recoup legal fees when an agency acts in bad faith.

DOC attorneys have argued that Section 1304(a) of the law limits legal fees to two instances: reversal of an (OOR) appeals officer’s decision or grant of a deemed denial.

“This interpretation cannot be squared with the legislative intent of the RTKL,” Melewsky wrote.

“If the court were to adopt the DOC’s position in this case, the public would have fewer and more restricted enforcement rights under the remedial law than under the prior, more restrictive version. This would be an absurd and unreasonable result of remedial legislation, and in conflict with the rules of statutory construction,” she argued.

“Under the DOC’s position, as long as the agency responds in some fashion to a RTKL request … or loses at the Office of Open Records, the only downside it faces if a requestor chooses to pursue an appeal to the judiciary (which, of course, are expensive and relatively rare when compared to the number of appeals handled by the OOR), is a potential order of access and $1,500 fine,” she wrote.

The Observer-Reporter is asking a state appellate court to award the newspaper that amount in sanctions from the California University of Pennsylvania. That request stems from Cal U.’s handling of a request from the O-R that ended when the school finally saying it had established that it didn’t have the requested records, following an unsuccessful bid to appeal a Commonwealth Court decision to the state Supreme Court. The newspaper is also seeking to recover the costs from the roughly 15 months of litigation, which ended late last year.