Bowling v. Office of Open Records

• Decision Date: 20 August 2013
• Docket Number: No. 20 MAP 2011.,20 MAP 2011.
• Citation: 75 A.3d 453
• Parties: Brian BOWLING, Appellee v. OFFICE OF OPEN RECORDS, Appellant, Pennsylvania Emergency Management Agency, Intervenor.
• Court: Pennsylvania Supreme Court

75 A.3d 453

Brian BOWLING, Appellee

v. OFFICE OF OPEN RECORDS, Appellant,Pennsylvania Emergency Management Agency, Intervenor.

No. 20 MAP 2011.

Supreme Court of Pennsylvania.

Argued Sept. 13, 2011.

Decided Aug. 20, 2013.

Emily J. Leader, Esq., PA School Boards Association, Inc., for PA School Board Association, Amicus Curiae.

Andrew H. Cline, Esq., PA Department of Transportation, Patrick Anthony Kane III, Esq., Jose E. Morales, Esq., Tammi Brooke Snyder, Esq., PA Emergency Management Agency, for Pennsylvania Emergency Management Agency.

Denna Lefkowitz, Esq., Terry Lee Mutchler, Esq., Pennsylvania Office of Open Records, J. Chadwick Schnee, Esq., for Office of Open Records.

David Alan Strassburger, Esq., Strassburger, McKenna, Gutnick & Gefsky, for Brian Bowling.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

Justice McCAFFERY.

We granted allowance of appeal in this case under the Right–to–Know Law (“RTKL”), Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101–67.3104, to determine the standard and scope of review that apply when a court reviews a final determination of the Office of Open Records (the “OOR” or “Appellant”).

Background of “Right–to–Know” Legislation in Pennsylvania

The RTKL, which became effective on January 1, 2009, is the statute providing for access to public records in Pennsylvania. It was preceded by the Act of June 21, 1957, P.L. 390, as amended,65 P.S. §§ 66.1–66.9, which was known as the Right–to–Know Act (“RTKA”). In 2002, the RTKA was substantially overhauled by the Act of June 29, 2002, P.L. 663 (repealed). The revised RTKA remained in effect through 2008.

Before the RTKA was amended in 2002, a requester seeking access to a government record in Pennsylvania bore the burden of demonstrating that the record was a “public record” and that the requester was entitled to see it. Tribune–Review Publishing Co. v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112, 115 (2003); Rowland v. Public School Employees' Retirement System, 885 A.2d 621, 627 (Pa.Cmwlth.2005). The responding agency was under no time limit within which it had to respond to a request for access. If the agency in possession of the record denied access, the recourse for a requester wishing to challenge such denial was to take an appeal to court. Wiley v. Woods, 393 Pa. 341, 141 A.2d 844, 849 n. 9 (1958). Appellate review was specified by statute to encompass a determination of whether the agency's denial was for “just and proper cause under the terms of” the RTKA. LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449, 458 n. 13 (2001), citing 65 P.S. § 66.4 (repealed); Dynamic Student Services v. State System of Higher Education, 548 Pa. 347, 697 A.2d 239, 242 (1997). If the court determined that the agency's denial was without “just and proper cause,” it could “enter such order for disclosure as it may [have] deem [ed] proper.” 65 P.S. § 66.4 (repealed).

As indicated above, in 2002, the General Assembly amended the RTKA, revamping the procedures to be followed for obtaining access to public records. A streamlined, expeditious set of procedures for accessing public records was created, but the burden still rested upon the requester to establish that requested records were public records that he or she was entitled to inspect. LaValle, supra at 458. However, agencies were required to respond to a request in 5 days (for Commonwealth agencies) or 10 days (for non-Commonwealth agencies), with an additional 30 days available in some circumstances. 65 P.S. § 66.3–3(a) (repealed). A requester could file exceptions with the agency head within 15 days, could expect a final decision 30 days later, and then had 30 days to file an appeal in court. 65 P.S. §§ 66.3–5, 66.4 (repealed). Prior to determination, the agency head or his or her designee was authorized to conduct a hearing. 65 P.S. § 66.3–5(b) (repealed).

Significantly, as part of this revamping, the amended RTKA deleted the requirement that a reviewing court determine whether denials of access to requested records were for “just and proper cause.” For appeals to the Commonwealth Court from Commonwealth agency decisions, no standard or focus of review was articulated. See65 P.S. § 66.4(a) (repealed). However, for appeals from decisions of non-Commonwealth agencies, “a requester [was] entitled to a reasoned decision containing findings of fact and conclusions of law based on the evidence as a whole which clearly and concisely state[d] and explain[ed] the rationale for the decisions so that all [could] determine why and how a particular result was reached.” 65 P.S. § 66.4(b) (repealed). In either case, the agency had the opportunity to respond “in accordance with applicable court rules,” and “[t]he record before a court [was to consist of] the request, the agency's response, the requester's exceptions, if applicable, the hearing transcript, if any, and the agency's final determination, if applicable.” 65 P.S. § 66.4(c) and (d) (repealed).

Because the RTKA, as amended, jettisoned the “just and proper cause” standard but failed to articulate any standard of review of Commonwealth agency decisions, the Commonwealth Court determined that it should address petitions for review from RTKA decisions of such agencies pursuant to Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704, which sets forth the “traditional,” or so-called “deferential,” approach to disposing of appeals from Commonwealth agencies. Parsons v. Urban Redevelopment Authority of Pittsburgh, 893 A.2d 164, 167 n. 2 (Pa.Cmwlth.2006); Hartman v. Department of Conservation and Natural Resources, 892 A.2d 897, 899 n. 3 (Pa.Cmwlth.2006); Martella v. Department of Transportation, 841 A.2d 633, 635 n. 9 (Pa.Cmwlth.2004).¹Section 704 provides:

The court shall hear the appeal without a jury on the record certified by the Commonwealth agency. After hearing, the court shall affirm the adjudication unless it shall find that the adjudication is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of Subchapter A of Chapter 5 (relating to practice and procedure of Commonwealth agencies) have been violated in the proceedings before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may enter any order authorized by 42 Pa.C.S. § 706 (relating to disposition of appeals).

2 Pa.C.S. § 704.²

The Commonwealth Court arrived at this determination despite the fact that the RTKA, as amended, explicitly stated: “The provisions of 2 Pa.C.S. (relating to administrative law and procedure) shall not apply to this act.” 65 P.S. § 66.9 (repealed). The Commonwealth Court “reasoned that [this] exclusion only applied to those chapters of the Administrative Agency Law relating to practice and procedure, i.e., Chapter 5, and not the remaining chapters, in particular, Chapter 7 (relating to judicial review). Thus, [the Commonwealth Court's] standard of review ... is whether constitutional rights have been violated, whether an error of law has been committed or whether findings of fact are supported by substantial evidence.” Hartman, supra at 899 n. 3.

In 2008, the General Assembly enacted the RTKL, which replaced the RTKA and provided for significantly broadened access to public records. Under the new law, agency records are presumed to be public records, accessible for inspection and copying by anyone requesting them, and must be made available to a requester unless they fall within specific, enumerated exceptions or are privileged. 65 P.S. §§ 67.305(a), 67.701(a), 67.708(b) (listing categories of records that are exempt from public access). To justify a determination to deny a requester access to a requested record, the relevant government agency bears the “burden of proving ... by a preponderance of the evidence” that an exception applies. 65 P.S. § 67.708(a).

The RTKL identifies four types of public agencies: Commonwealth agencies, local agencies, legislative agencies, and judicial agencies. See65 P.S. §§ 67.301–304. The RTKL then provides that each agency, of whatever type, must appoint an “open-records officer” who issues the agency's interim and final determinations on requests for access to public records of that agency, providing a written description of the requested record(s) and written specific reasons if a requester is denied access. 65 P.S. §§ 67.502, 903(2).

Of central significance to the instant case, the RTKL also established a new Commonwealth agency, the Office of Open Records, within the Department of Community and Economic Development. Among its many functions, the OOR provides information relating to the implementation and enforcement of the RTKL, issues advisory opinions to agencies and requesters, provides training courses to agencies and public officials, and provides informal mediation programs to resolve disputes under the RTKL. 65 P.S. § 67.1310(a)(1), (2), (3), (4), and (6). In addition, with respect to most Commonwealth agencies and local agencies, where requesters challenge denials of access, the OOR assigns appeals officers to review the challenges. 65 P.S. §§ 67.503(a) and 67.1310(a)(5). However, judicial agencies, legislative agencies, the Attorney General, State Treasurer, and Auditor General (all Commonwealth agencies); and the district attorneys of each county (all local agencies), shall designate their own appeals officers to hear appeals from the respective agency's determinations. 65 P.S. § 67.503(a)-(d). Thus, appeals from final determinations of these latter agencies are not heard by the OOR.

When an agency has denied access to requested records, the requester may file an appeal with the OOR, or with an appeals officer directly if the agency is one that appoints its own appeals officers, wherein the requester “shall state the grounds upon...