Prison Legal News v. OFFICE OF OPEN RECORDS, 969 C.D. 2009

• Decision Date: 08 April 2010
• Docket Number: No. 969 C.D. 2009,997 C.D. 2009,969 C.D. 2009
• Citation: 992 A.2d 942
• Parties: PRISON LEGAL NEWS, Petitioner v. OFFICE OF OPEN RECORDS, Respondent. Department of Corrections, Petitioner v. Office of Open Records, Respondent.
• Court: Pennsylvania Commonwealth Court

992 A.2d 942

PRISON LEGAL NEWS, Petitioner v. OFFICE OF OPEN RECORDS, Respondent.

Department of Corrections, Petitioner v. Office of Open Records, Respondent.

No. 969 C.D. 2009, 997 C.D. 2009

Commonwealth Court of Pennsylvania.

Argued March 16, 2010.

Decided April 8, 2010.

COPYRIGHT MATERIAL OMITTED

Alicia D. Hickok, Philadelphia, for designated petitioner, Prison Legal News.

Terry L. Mutchler, Harrisburg, for respondent, Office of Open Records.

Theron R. Perez, Asst. Counsel, Camp Hill, for intervenor/respondent, Department of Corrections.

BEFORE: PELLEGRINI, Judge, and BROBSON, Judge, and KELLEY, Senior Judge.

OPINION BY Judge PELLEGRINI.

Before us are two appeals that have been consolidated. In neither appeal is access to public records the issue, but rather the issue is the cost of duplication and time involved in the reviewing for exempt information. Prison Legal News (PLN) appeals an Office of Open Records (OOR) determination approving the Pennsylvania Department of Corrections' (Department) estimate of the cost of duplication of records and denial of a fee waiver for duplication as being in the "public interest." The Department appeals contending that the OOR's order requiring that it turn over the records within 30 days should be reversed because it did not give it the opportunity to review the records for exempt information.

The record in this case consists of four letters sent between PLN and the Department, PLN's appeal to the OOR, and the OOR's final determination of PLN's appeal. PLN and the Department filed a joint application to supplement the record, which this Court denied in an order dated October 14, 2009. No evidence has been taken nor has a hearing been held.

This case began when Paul Wright (Wright), the editor of PLN, wrote Andrew Filkosky, the Department's Open Records Officer, requesting various records pursuant to the Right-to-Know Law (RTKL)¹ on behalf of PLN.² Specifically, Wright wrote:

I am requesting on behalf of Prison Legal News public records containing details about any claims, settlements, or verdicts against State sic of Pennsylvania for $1000.00 or more involving the Department of Corrections (the Department), its employees or agents, or any of its facilities. For each payment made, please include a copy of the tort claim or complaint, or any other document that discloses the facts underlying the incident leading to the settlement or verdict. Also include any settlement agreement, general release, verdict, or court order obligating the county to pay the claimant or plaintiff. Finally, please include a copy of the check paid to the claimant or plaintiff. The time period for the above request is from January 1, 2001 through December 31, 2008.

(Reproduced Record at page 2a.) Wright also requested the Department to provide each document in an electronic format and to have all fees waived because disclosure of the requested information would be in the public interest. Wright stated that disclosure was in the public interest because the information would be published in PLN's monthly magazine and/or on its website to inform the public of the Department's operations and because PLN is a non-profit entity that will not use the information for commercial gain.

The Department responded that Wright's request required prepayment to be processed. The Department provided a "rough estimate" of at least 35,000 pages of material which, at $0.25 per page, would cost $8,750 to copy. If the actual amount differed from the estimate, the price would be adjusted after the material was produced. The Department stated that it would process Wright's request further once it had received the payment. Wright responded by reiterating his request for a fee waiver and electronic production of the records and additionally requested a spreadsheet listing all claims and verdicts so that he could refine his search and reduce costs. The Department denied Wright's requests for a fee waiver, production of records in an electronic format, and a spreadsheet. It stated that the records Wright requested did not exist in electronic format or as a spreadsheet, and that it was not required to convert them. The Department's denial did not reference its previous response to Wright's initial request stating that it would process Wright's request once he had paid the $8,750.

Wright then appealed pro se to the OOR. He contended that the Department overestimated the number of pages that his request encompassed, stating that he had made the same request to numerous other federal, state and local corrections agencies and had never received such a high estimate. He also contended that the cost estimate of $8,750 was unreasonable and appeared to be an attempt to make the cost so prohibitive as to constitute a de facto denial of his request. He next argued that all fees should be waived because disclosure of the information was in the public interest. Finally, he argued that it was hard to believe that none of the documents he requested were kept electronically, and stated that if there was no way to provide him with the records electronically, he would be willing to send a representative to the location where the records are kept to scan them himself.

Without taking any evidence, the OOR granted in part and denied in part Wright's appeal. In its determination, it accepted the Department's assertions that 35,000 pages was an accurate estimate of the number of pages responsive to Wright's request, and that most if not all of them were not available electronically. In the section entitled "Legal Analysis," the OOR determined that the Department is not required to waive copying costs, that a $0.25 per page prepayment copying fee is reasonable, that records not available electronically are not required to be converted, that archive and handling fees are not permissible,³ that the Department must permit Wright to personally inspect and copy the records if he so chooses within 30 days, and that if Wright does not choose to personally copy the records, he must pay the $8,750 prepayment and the Department must provide him with copies of the records.

Both Wright (now as PLN and represented by counsel) and the Department appealed from the OOR's final determination. In addition, the OOR filed a brief arguing that part of its final determination was incorrect and should be reversed.

I. PLN's Appeal

In its appeal, PLN contends that the RTKL and/or due process entitles it to an evidentiary hearing at some point in the process to challenge the agency's estimate⁴ of the number of responsive records that it uses to compute the prepayment required for duplication costs. This would allow it to challenge whether costs are excessive because the Department either inflated the number of responsive records or keeps some or all of them in electronic format. It also contends that the Department does not have unfettered discretion to deny a request to waive fees⁵ without giving reasons why it denied the request.

Before we address PLN's contentions, we will review the process that the RTKL envisions for the processing of requests for records. Under the RTKL, access to records and duplication of records, together with fees, are all treated the same. 65 P.S. § 67.701 entitled "Access" provides:

Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act. A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists. Public records, legislative records or financial records shall be available for access during the regular business hours of an agency.

(Emphasis added.) If the agency determines that the information requested is not exempt, it may require the requester, if the amount is expected to be in excess of $100, to prepay the estimated cost of duplication. An agency's requirement that a requester pay a fee before receiving access to records constitutes a denial of access because it places a condition precedent on allowing the requester to access the records. Like other denials of access, the agency shall give the requestor an explanation as to how it arrived at the prepayment amount. If the requester does not pay the fee in full, the agency may withhold access. 65 P.S. § 67.903.

A requester may appeal the estimate of the number of pages to be copied upon which the required prepayment is based. 65 P.S. § 67.1101(a)(1) provides that if "a written request for access to a record is denied or deemed denied, the requester may file an appeal with the Office of Open Records." "The appeal shall state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request." 65 P.S. § 67.1101(a)(1). If the relief requested is a reduction of fees because the agency allegedly overestimated the number of documents, the requestor must set forth a reason why it believes the number of copies is overestimated or in the case of electronic access, why it believes that the information exists in a digital medium.

Because the RTKL explicitly makes the Administrative Agency Law⁶ inapplicable, the provisions of that law requiring an evidentiary hearing do not apply. 65 P.S. § 67.1309. Similar to the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, the RTKL does not require a hearing before the OOR makes a final determination on the issue of fee waivers or reductions.⁷ Given the strict time limits for both the agency and the OOR to make determinations, the General Assembly provided that unless the OOR appeals officer decides that a hearing is necessary, determinations of access to records are to be made based upon the request and the response(s) of the agency. 65 P.S. § 67.1101(b)(3).

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