Questions for the Office of Open Records

Yesterday, we wrote about some of the early decisions of the Office of Open Records (OOR). We are continuing that discussion today, raising some of our questions and concerns about the first group of decisions.


First, we believe that the OOR should define what constitutes an “investigative record.” Although the OOR denied access to “investigative records,” in two of its early decisions (where requesters actually identified the documents requested as investigative records), the OOR did not provide guidance for determining what actually constitutes an “investigative record.” This is a critical issue that must be addressed.

The law exempts many “investigative records” from public view. But what is investigative? Records that merely reflect an agency’s everyday, administrative functions cannot be deemed “investigative.” Nor should records that are shared externally with third parties. To hold otherwise, would allow the exception to swallow the rule. For example, restaurant inspections and building inspections are not “investigative.” Nor are parking citations. They are documents that reflect an agency’s routine, administrative functions and are distributed outside of the agencies to the respective restaurant, building, and automobile owners.

In our view, in order to qualify as an “investigative record,” a record must involve some in-depth study by an agency, such as an ongoing police investigation, and should include internal agency documents only. We hope that the OOR will develop a thoughtful definition of “investigative,” in a way that protects actual agency investigations, but also gives meaning to the presumption of openness.

Second, we believe that the OOR should address which board documents are public. What is a “board packet,” and which board documents are public? This is another issue that the OOR has not yet addressed head-on, but is one that both agencies and requesters are grappling with across the Commonwealth.

Under the Right to Know Law, internal, predecisional, deliberative documents are generally not public, until they are presented to a quorum of a board for public discussion. See 65 Pa.C.S. 67.708(b)(10). In other words, “board packets,” or at least portions of them, become public when they are presented to a quorum of a board.

In Wallace v. School District of Lancaster, AP 2009-0010, the OOR addressed the issue of whether contracts and agreements presented to and discussed by a Board subcommittee were public records. It found that they were, primarily because the school district did not meet its burden of proving that cited exemption applied.

In our view, the OOR missed an opportunity in the Wallace decision, to flesh out a critical part of the law, the one that makes most documents public when they are presented to a quorum of an agency for discussion at a public meeting.

As stated above, section 708(b)(10) generally protects internal, predecisional documents of agencies. It provides, however, that “a record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with [the Sunshine Act] shall be a public record.” This means that documents presented to a quorum of a board for discussion at a public meeting are public records, unless they are specifically protected by law. Although we agree that the OOR decided the Wallace decision correctly, we believe that it should have also cited this provision, as further support for its decision. It could have provided much-needed guidance on the “board packet” issue to both agencies and requesters. We look forward to a future decision that does just that.