Our thoughts on the first decisions of the Office of Open Records

After reviewing the first “Final Determinations” issued by the Office of Open Records (OOR), we see some lessons in them for requesters and agencies. Not surprisingly, the decisions also raise some questions and concerns. Here are our thoughts on the first round of decisions.

First, some things the decisions tell us:

Financial records are public. The Right to Know Law defines “financial record” to include accounts, vouchers and contracts dealing with the receipt or disbursement of funds. It specifically includes names, titles, and amounts paid to agency officers and employees. The Law also makes it clear that most of the exemptions (22 of the 30 exemptions) do not even apply to financial records. In other words, almost all financial records are public records.

The OOR’s decisions confirm that contracts, payroll, and other financial records are public records and that an agency’s burden is great when seeking to deny access to these records. See WTAE-TV/Parsons v. Port Authority, AP 2009-008 (agency payroll records, including names of employees, position/title, salary, date of birth, and hire date are public); Green v. Quakertown Community School District, AP 2009-0041 (certified payroll forms submitted by government contractor on a school renovation project, including employee names, are public).

The burden of proof means something – and agencies must offer proof that a particular exemption applies, not just a citation to an exemption. Under the new law, all records of state and local agencies are presumptively public. An agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. The OOR cites and applies that burden in its decisions, and repeatedly rejects agency attempts to cite an exemption without more evidence. See Green v. Quakertown Community School District, AP 2009-0041 (payroll records of employees performing work under public works projects are public records); Wallace v. School District of Lancaster, AP 2009-0010 (contracts and master agreements discussed at board subcommittee meeting are public records, and agency could not deny access by calling them internal, predecisional records without more evidence); Sasso v. City of Philadelphia, AP 2009-0014 (elevator maintenance records public, although investigation records and audit papers are not).

Do not identify the document you request as an “investigative record.” In Sasso v. City of Philadelphia, AP 2009-0014, Sasso requested, among other things, “investigative records.” In Cahill v. Borough of Penndel, AP 2009-0023, Cahill requested a copy of an “investigation report conducted by building inspection underwriters….” Both requests were denied, and the OOR affirmed the denials, based on the non-criminal “investigation exception” in the Right to Know Law, 65 Pa.C.S. 708(b)(17).

The obvious take away from these decisions is this: Do not identify the document you request as an “investigative record.” If an agency believes that a document is an investigative record, make the agency raise that (and prove it) in its response to you.

As we'll discuss in more detail in our next post, we believe that the OOR must define what constitutes an “investigative record.” This will undoubtedly be one of the most frequently-raised exemptions, and both agencies and requesters will benefit from guidance on this issue.

If agencies say documents don’t exist, the OOR may require an attestation or affidavit before accepting the agency’s claim. In Kurzmiller v. Township of Shrewsbury, AP 2009-0005, Kurzmiller requested a W-2 or 1099 relating to a Township Code Enforcement Officer. The Township Secretary filed an “Attestation” pursuant to 42 Pa.C.S. 6103, asserting that no 1099 existed in the records of the Township. As to the W-2, the Township responded that the Officer was not an employee of the Township and therefore the Township had no obligation to create or maintain such a record. The OOR found that this response was sufficient. See also Ortiz v. Department of Public Welfare, AP 2009-0015 (records destroyed pursuant to agency’s record retention policy, and agency provided “Attestation of Nonexistence of Records” in support of denial).

Agencies that don’t respond adequately to requesters or the Office of Open Records are likely to lose. In Sabatini v. Philadelphia Parking Authority, AP 2009-0022, Sabatini requested the names of certain hearing officers. The agency failed to respond to the request within 5 business days. When it did respond, it incorrectly described the appeals process (agencies are required to include the appeals procedure in any denial letter). The agency also failed to respond to an OOR request for additional information. The OOR ruled that the Parking Authority must provide the names of the hearing officers.

In Wallace v. School District of Lancaster, AP 2009-0010, Wallace requested contracts and master agreements discussed at subcommittee meetings of the school board. The school district denied the request, claiming that the documents were internal, predecisional documents under exemption 10, 65 Pa.C.S. 708(b)(10). The OOR asked for additional information from both parties, but neither party responded. The OOR directed the district to release the records, finding that it did not meet its burden of proof.

If an agency fails to respond adequately to a request, and/or fails to provide requested information to the OOR, it seems likely that that agency will be unable to meet its burden of proof. These cases bear this out, and are a lesson for agencies responding in the future.

Stay tuned for our next post, which addresses concerns that we have about the early decisions of the Office of Open Records.

The Decisions are in….New Open Records Office Issues First “Final Determinations”

Since February 19, Pennsylvania’s Office of Open Records has issued eleven “final determinations” on open records disputes in the Commonwealth, and the results are mostly encouraging. These decisions are binding, unless appealed within 30 days. Some of these decisions will certainly be appealed.

Under the new law, all records held by state and local agencies are presumptively public, and an agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. It is clear that the Office of Open Records takes both the presumption and the burden of proof seriously, signaling a real sea change in terms of access to government in Pennsylvania. We hope, as some of these matters are appealed to the courts, that the judiciary applies the same standards and affords the decisions of the Office of Open Records appropriate deference.

Thus far, the Office has found the following:

Public Records:

Contracts and agreements discussed at education subcommittee meeting. Wallace v. School District of Lancaster, AP 2009-0010.

Payroll records, including names of employees, position/title, salary, date of birth, and hire date. WTAE-TV/Parsons v. Port Authority, AP 2009-008.

Certified payroll forms submitted by government contractor on a school renovation project, including employee names. Green v. Quakertown Community School District, AP 2009-0041.

Elevator maintenance reports. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.

List of Hearing Officers of Philadelphia Parking Authority. Sabatini v. Philadelphia Parking Authority, AP 2009-0022.

Not Public:

Records destroyed pursuant to an agency’s record retention policy. Ortiz v. Department of Public Welfare, AP 2009-0015.

Investigation report of building inspection underwriters. Cahill v. Borough of Penndel, AP 2009-0023.

Access to non-public areas of PennDot electronic contract management system. Hersh v. Pennsylvania Department of Transportation, AP 2009-0011

Elevator investigation reports and work papers underlying an audit. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.

Documents that did not exist. Krall v. Roaring Brook Township, AP 2009-0013; Kurzmiller v. Township of Shrewsbury, AP 2009-0005.

An employee’s own personnel file, including performance evaluations and disciplinary records. Rech v. Department of Education, AP 2009-0034.