Uniontown Newspapers, Inc. v. Pa. Dep't of Corr.

Decision Date22 December 2020
Docket NumberNo. 77 MAP 2019,No. 76 MAP 2019,76 MAP 2019,77 MAP 2019
Citation243 A.3d 19
Parties UNIONTOWN NEWSPAPERS, INC., d/b/a the Herald Standard; and Christine Haines, Appellees v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellant Uniontown Newspapers, Inc., d/b/a the Herald Standard; and Christine Haines, Appellees v. Pennsylvania Department of Corrections, Appellant
CourtPennsylvania Supreme Court
OPINION

JUSTICE MUNDY

We granted appeal in this matter to consider the assessment of sanctions and attorney fees based on a finding of bad faith and willful and wanton behavior by an agency responder under the Right to Know Law (RTKL).1

In September 2014, prior to the request for the records at issue in this case, the Abolitionist Law Center published a report entitled "No Escape: Exposure to Toxic Coal Waste at [SCI-]Fayette." The report alleged a causal connection between the ill health of inmates at SCI-Fayette, and the facility's proximity to a fly ash dumpsite. In response to the report, the Department of Corrections (DOC) coordinated with the Department of Health (DOH) to investigate the allegations (the No Escape Investigation). Christopher Oppman, who was then the Director of the DOC's Bureau of Health Care Services, oversaw the No Escape Investigation, which was led by Drs. Paul Noel and Eugene Ginchereau. In conducting the No Escape Investigation, the DOC consulted many sources of information. These included "causes of inmate deaths (Mortality Lists); a database that tracked inmates treated for cancer

(Oncology Database); reports of inmate medications prepared by DOC's pharmacy contractor (Pharmacy Contractor Reports); and, records showing inmates enrolled in Chronic Care Clinics, tracked via the PTrax database (collectively, Inmate Illness Sources)." Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 185 A.3d 1161, 1164-65 (Pa. Cmwlth. 2018) ( Uniontown II ).

On September 25, 2014, reporter Christine Haines of The Herald Standard (Appellees) sent an e-mail RTKL request to the DOC, seeking:

documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette. I am not seeking identifying information, only the types of reported contracted illnesses and the number of inmates and staff members with those illnesses. I am particularly interested in various types of cancer

reported at SCI-Fayette since its opening, as well as respiratory ailments reported. If there is also information comparing the health at SCI-Fayette with the health at other state correctional facilities, that would also be helpful.

Uniontown Newspapers, Inc. v. Pa. Dep't of Corr. , 151 A.3d 1196, 1200 (Pa. Cmwlth. 2016) ( Uniontown I ).

DOC assumed Appellees’ request related to the Abolitionist Law Center's report and the No Escape Investigation. Uniontown II , 185 A.3d at 1165. DOC's open records officer, Andrew Filkosky, issued a denial of Appellees’ request in its entirety, citing several exceptions under Section 708(b) of the RTKL, as well as attorney-client privilege and deliberative process privilege grounds. Appellees appealed and, on December 1, 2014, the Office of Open Records (OOR) reversed, ordering DOC to disclose to Appellees "all responsive records" within 30 days. DOC did not file a petition for review of this determination with the Commonwealth Court.

On December 31, 2014, in-house counsel for DOC, Chase DeFelice, disclosed 15 pages of records to Appellees. The disclosed records included "charts depicting the following: the number of patients with pulmonary conditions in all SCIs (from Chronic Care Clinic records); the number of inmates with cancer

in all SCIs (2010–13); inmate cancer deaths by institution (2010–13); inmate cancer deaths at SCI–Fayette (2003–13); the number of inmates treated by Pharmacy Contractor for pulmonary ailments (2010–14); and, the number of inmates treated by Pharmacy Contractor for gastrointestinal ailments (2010–14)." Id. (citation omitted). In January 2015, Appellees asked DOC to verify that its December 31, 2014 disclosure was a complete response to the request for records. After undertaking an additional review, DOC disclosed a memorandum from Dr. Ginchereau to Dr. Noel, as well as an e-mail from Dr. Noel about the investigation, and a day later disclosed cancer patient records from November 2014 and January 2015. At this juncture, Director Oppman verified that the DOC "had no other records of SCI–Fayette inmate illnesses by type and quantity[,] and comparison of illness rates at other [SCIs]." Id. (brackets in original, internal quotation marks and citation omitted).

In February 2015, Appellees filed a petition for enforcement with the Commonwealth Court, seeking statutory sanctions and attorney fees alleging DOC demonstrated bad faith in responding to the request for records, and the OOR's directive. DOC filed preliminary objections, which were overruled. DOC thereafter filed an answer and new matter. Appellees filed a motion for judgment on the pleadings, which the court denied.2 After further discovery, the parties filed cross-motions for summary relief.

A three-judge panel of the Commonwealth Court first considered whether DOC had complied with the OOR's Disclosure Order. DOC contended it provided all responsive records based on its reasonable interpretation of the scope of the request. The panel granted DOC's motion in part and denied it in part. Specifically, it held DOC was not required to disclose individual inmate medical records or to create new records compiling data from those records not already created or that would not be created in regular course. Uniontown I , 151 A.3d at 1207 (Pa. Cmwlth. 2016). However, in addition to records created as part of the No Escape Investigation, the Commonwealth Court identified the following records that DOC should have provided: (1) the Chronic Care Clinics Database; (2) the Oncology Database; (3) Mortality Lists; and (4) Pharmacy Contractor Reports, set forth above. Id . at 1205. Because the panel could not discern the full extent of any non-compliance by DOC, the panel directed the parties to file a stipulation as to the disclosure status of these five classes of records. The panel denied Appellees’ motion without prejudice and reserved judgment on the issue of bad faith sanctions. Id. at 1209.

The parties engaged in further discovery. During this process, in March 2017, DOC disclosed additional mortality lists and data from its oncology database. After discovery was complete, the parties filed a stipulation that the "Pharmacy Contractor Reports and Chronic Care Clinic records remained outstanding." Uniontown II , 185 A.3d at 1166. The Commonwealth Court held a hearing in August 2017, and the parties filed proposed findings of fact and conclusions of law in October 2017.

In a single-judge opinion and order entered on March 23, 2018, the court proceeded to review Appellees’ alleged grounds for finding DOC acted in bad faith, specifically, that DOC construed the record request too narrowly; DOC failed to search records; and DOC failed to comply with the OOR's Disclosure Order. It addressed DOC's compliance at each stage, including its construction of the request, responsive actions upon receipt of the record request, its actions at the appeal stage before the OOR, and its degree of compliance with the disclosure order of the OOR.

With respect to the construction of the request, the court first noted that nothing in the request for information referenced the No Escape Investigation, and that DOC's assumption that the request related only to records related to that investigation stemmed merely from the coincidental timing of the request. The court noted that Appellees presented no evidence of communications with DOC clarifying the parameters of the request. The court further found that DOC's open records officer merely forwarded the request to DOC's Health Care Bureau without an interpretation of the request, and reflexively accepted the Health Care Bureau's subsequent interpretation. Absent any showing of an attempt to construe the request in any particular adverse manner, the court determined that DOC's erroneously narrow interpretation of the request did not itself amount to bad faith. Rather, it noted, "the primary problem revealed during the hearing was that DOC did not give any specific, separate consideration to the Request at all." Uniontown II , 185 A.3d at 1171 (emphasis in original).

The court observed that, during the appeal stage before the OOR, DOC represented to the OOR that it possessed records that were responsive to Appellees’ request, but the records were exempt from disclosure. The basis for this representation was a verification DOC's in-house counsel prepared for the Director of DOC's Bureau of Health Care Services, who also oversaw the No Escape Investigation. Critically, counsel submitted this verification to the OOR without ever obtaining or reviewing the records. Id. at 1173. Judge Simpson concluded that "by contesting access during the appeal, without obtaining all records and assessing the records’ public nature, DOC acted in bad faith." Id.

Once the OOR ordered disclosure within 30 days, "DOC bore the burden to prove it provided all responsive records." Id. (internal quotation marks omitted). The court found that DOC waited until after the 30-day period had passed before confirming whether it had searched for all potentially responsive records. Id. In addition, DOC failed to disclose all mortality lists and the oncology database data until months beyond the deadline. Id. Furthermore, DOC did not contact its pharmacy contractor until 2017 in order to obtain potentially responsive records held by the contractor. Id. The court determined this further evidenced a lack of good faith on the part of DOC. Id. at 1174. In addition, due to DOC's tardiness, certain chronic care clinic records were not preserved and were no longer available. Id.

Concluding DOC responded in bad faith, the court then turned to the relief due to A...

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