Pa's OOR and the Man Who Sees Dead People

Today, PA's Commonwealth Court released another Open Records decision on the very topical and very gripping issue of when the public is entitled to information from the Coroner related to his findings of cause of death.  In case you were desperately waiting for the answer to this one, apparently it is not until 30 days after the end of the year, just like it says in the Coroner's Act, but I really doubt anyone reading this blog cared too much about that issue.  So, I guess it is really not so topical.

The other issue discussed there was the dueling requests for counsel fees.  This is a much sexier (ok, maybe not sexy) and topical (this time it really is topical) issue.

The requester claimed counsel fees were owed because the Coroner's denial was "contradicted by the language [of the particular cited section] of the RTKL and undermine[d] the clear intent in the RTKL to promote timely access to public records," p. 11.

WGAL-TV lost on the initial issue dealing with the time of release, so one would think that as the non-prevailing party they would automatically lose on this issue, too.  Apparently not the case.  Instead, the court summed up the law in this area, noting the criteria required for a requester to get counsel fees following a denial.  The court pointed out that §1304 of the RTKL allows a court to award fees where:

(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.

p. 13, citing 65 P.S. § 67.1304. From there, the court (ignoring the claimed reasons why counsel fees should be awarded, and after pointing out that the TV station did not prevail) went on to examine the above criteria.  In doing so it found that "there is absolutely no evidence presented that the Coroner acted in bad faith or refused the Request based on an unreasonable interpretation of the law."  Of course, I would think that by prevailing, one obviously would not have denied a request "willfully" or with "wanton disregard" or "otherwise acted in bad faith," yet the court felt the need to actually mention it separately.

Regardless, it was good news for the Coroner, but I wonder whether winning was the key and the summary of the criteria was simply support, or is the court implying that a requester can get counsel fees under some theory even if he or she loses?

The case is Hearst Television, Inc. v. Michael L. Norris, 95 C.D. 2010, and can be found on the PA Courts' website here.

(For a short case where the applicable portion was even shorter, this post turned out to be longer than I expected.)

CCP Lackawanna and the Tax Collector

A reader asked me in the context of my prior article dealing with CCP Lackawanna v. OOR (see item from August 17) how that case might apply to the tax records in the hands of the Tax Collector.  It doesn't.  In fact, the CCP Lackawanna case is the exact opposite of that.

For the benefit of those unaware of this, the OOR has taken the position that where a Tax Collector performs his statutory duty on behalf of an agency, it remains the agency's duty to get his records and turn them over upon request.  This despite the statute making the Tax Collector exempt from the RTKL.  The OOR's position was successfully challenged in the Montgomery County CCP with the case on appeal to the Commonwealth Court.  (I wrote about this situation in an alert to the firm's clients back in January 2010 before Mr. Honaman took his appeal on behalf of Signature Solutions. CW Ct. argument is now scheduled for September 2010, so stay tuned).

Thus, where the CCP Lackawanna case involved judicial records (private non-RTKL records) in the hands of an agency with a duties under the RTKL, the Tax Collector situation involves a request for arguably public records sent to an agency that does not have the records to turn over. 

So I would not recommend relying upon the CCP Lackawanna case for issues dealing with the Tax Collector's records. For that issue, we will have to await the ruling of the courts.  That being said, were I deciding the case, I would side with Judge Moore (of Montgomery County CCP) and point out that the records the Tax Collector is required to turn over to a taxing agency is limited both in extent and timing and only make an agency turn over what it has actually received.

When access and control will not render a record public

The Commonwealth Court recently issued a decision in the Court of Common Pleas of Lackawanna County v. the Pennsylvania Office of Open Records and Lackawanna County, No. 35 M.D. 2010 (Pa. Cmwlth.). Essentially, this case indicated that where an agency has access to a record as a result of its support of a second agency, that record will maintain its status and exclusions as though it was only held by the second agency.

The court found that the requested records were judicial records (normally exempt from the RTKL) but they were housed on the County's computer server, giving the County access to and control over the records.  The OOR had decided that meant that a requester could gain access by directing a request to the County.  The Commonwealth Court disagreed.

Essentially, the court decided that the County was providing a support function to the judicial agency and that the County’s ability to access records as a result of that support did not convert the judicial agencies documents into County documents.

Just because the County provides logistic support to the courts does not mean that every record stored on what the County provides as part of its function to support the court makes it a county record – those records always remain the records of the court.

The court went on to point out that a different finding would lead to an absurd result where one could obtain non-public documents of the court simply by directing the request to the county.

This reasoning applies equally well to §708(b) exceptions. Thus, the §708(b) exceptions that would apply to a supported agency will continue to be effective on the records in the hands of the supporting one. An example of interest to some agencies might be where they contract with another agency to analyze or gather data and issue reports used for negotiations.

Right to Know Requests and the Disappearing Revenue Stream

A Delaware County judge over-rules the Office of Open Records.  Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property.  These fees varied, but generally did not exceed $50.  This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification).  By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009.  Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue.  In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law. 

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.”  Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it.  He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation.  For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things.  First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision.  Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions.  Two of those recent matters were in Delaware County.  In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

A link to Judge Cronin's ruling, from the OOR's website, is below.
www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf