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Pennsylvania: Public Records Requests Under Right-to-Know Law Should Not be Derailed by Technicalities

In June 2012, a divided Commonwealth Court of Pennsylvania affirmed a decision of the Office of Open Records that a request for public records is governed by the Commonwealth’s Right-to-Know Law (RTKL), 65 P.S. §§67.101-67.3104, even if it does not cite to the RTKL and even if it is not submitted on a form specifically adopted for record requests.

In March 2009, James Schneller, an anti-gambling advocate, sent an email to the Communications Office of the Pennsylvania Gaming Control Board, requesting copies of certain “communications” between the Gaming Board and several applicants for gaming licenses. When the Gaming Board did not respond to Schneller within five business days (See 65 P.S. §901), he deemed his request for information to be denied and appealed to the Office of Open Records.

The Gaming Board argued that Schneller could not “appeal” the denial of his records request because, insofar as his request had not cited to the RTKL and had not been submitted on the Gaming Board’s form for such requests, he did not present a valid RTKL request in the first place. Open Records rejected this argument.

On appeal, the Gaming Board renewed its argument that Schneller had not made a valid RTKL request. Additionally, it argued that the records Schneller sought were exempt from disclosure.

A 4-3 majority of the Commonwealth Court rejected the first argument, holding that the legislature had made clear its intention “that technicalities should not stop a written request for records in its tracks.” Rather, the majority held, if the format of a request is deemed inadequate, the RTKL requires an agency to notify the requester of the shortcomings in the request, so that the requester can submit an acceptable one.

“The focus is on the substance of the written request,” the majority held, “not its form.” Thus, there is not requirement that a records request explicitly cite the RTKL.

With respect to the claim that the records were exempt from disclosure, the Commonwealth Court remanded to the Office of Open Records with instructions to remand, in turn, to the Gaming Board to determine whether or not the records Schneller requested were confidential under Section 1206(f) of the Gaming Act (or some other provision of the law).

In addressing the issues raised in the case, the Commonwealth Court responded to concerns expressed by the Parole Board in an amicus curiae brief which noted that it receives 600 to 1000 written requests for information each month. The Parole Board claimed that it would be impossible to treat every request as a RTKL request.

Noting that the court could not disregard the plain language of a statute merely because it might prove to be burdensome, the court pointed out that the Parole Board had not, in any event, shown that it could not address any hypothetical burden by promulgating an appropriate regulation. See: Commonwealth of Pennsylvania v. Office of Open Records, 48 A.3d 503 (Pa.Cmwlth. 2012).

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Related legal case

Commonwealth of Pennsylvania v. Office of Open Records