[J-49A-2020 and J-49B-2020] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
UNIONTOWN NEWSPAPERS, INC., D/B/A : No. 76 MAP 2019 THE HERALD STANDARD; AND : CHRISTINE HAINES, : Appeal from the Order of the : Commonwealth Court at No. 66 MD Appellees : 2015 dated March 23, 2018. : : ARGUED: May 21, 2020 v. : : : PENNSYLVANIA DEPARTMENT OF : CORRECTIONS, : : Appellant :
UNIONTOWN NEWSPAPERS, INC., D/B/A : No. 77 MAP 2019 THE HERALD STANDARD; AND : CHRISTINE HAINES, : Appeal from the Order of the : Commonwealth Court at No. 66 MD Appellees : 2015 dated October 29, 2018. : : ARGUED: May 21, 2020 v. : : : PENNSYLVANIA DEPARTMENT OF : CORRECTIONS, : : Appellant :
OPINION
JUSTICE MUNDY DECIDED: December 22, 2020 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
1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
[J-49A-2020 and J-49B-2020] - 2 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–
[J-49A-2020 and J-49B-2020] - 3 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
2 Senior Judge J. Wesley Oler, Jr. issued this ruling in an unpublished single-judge opinion. See Uniontown Newspapers v. Dep’t of Corr. (Pa. Cmwlth., No. 66 M.D. 2015, filed December 7, 2015). Therein, he held judgment on the pleadings was inappropriate because an issue of material fact existed concerning whether the DOC’s interpretation of and/or response to the request for records was reasonable or made in bad faith.
[J-49A-2020 and J-49B-2020] - 4 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
[J-49A-2020 and J-49B-2020] - 5 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
Appellees. First, the Commonwealth Court ordered disclosure of certain classes of
[J-49A-2020 and J-49B-2020] - 6 remaining responsive records within 20 days.3 Id. In addition, the court observed that
the RTKL permits sanctions up to $1,500.00 “if an agency denied access to a public
record in bad faith.” 65 P.S. § 67.1305(a). Based on its findings, the court concluded
that the maximum amount of sanctions was appropriate in this case. The court deferred
any resolution of Appellees’ request for attorney fees. The court directed Appellees to
advise the court in writing of its intent to pursue its claim for attorney fees together with
any supporting documentation, whereupon further briefing and/or hearing would be
scheduled.
Appellees subsequently pursued their claim for attorney fees. The court conducted
a hearing on the issue of what constituted “reasonable” attorney fees in this case.
Ultimately, by order entered on October 29, 2018, the Commonwealth Court awarded
Appellees attorney fees of $118,458.37. Uniontown Newspapers, Inc. v. Pa. Dep’t of
Corr., 197 A.3d 825 (Pa. Cmwlth. 2018) (Uniontown III). Therein, the court clarified that
it resolved the issue of bad faith in its earlier decision and accepted that finding for the
purpose of determining reasonable attorney fees in the instant proceeding. Id. at 830.
DOC filed a petition for allowance of appeal, which this court granted, limited to the
following issues:
1. Where RTKL Sections 65 P.S. §67.1304 and §67.1305 premise the award of sanctions and attorney fees on a finding of bad faith and willful and wanton behavior, can a court impose those penalties based on a finding that the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, when any duty to independently and personally assess is not clearly delineated in either the statute or the case law?
3DOC does not dispute that these documents were responsive to the request, were not subject to any exclusion, and remained undisclosed.
[J-49A-2020 and J-49B-2020] - 7 2. Did the Commonwealth Court properly construe the statutory language in 65 P.S. §67.1304 as authorizing an award of attorney fees when a court reverses a final determination of an agency rather than when a court reverses the final determination of the appeals officer?
Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 218 A.3d 375 (Pa. 2019).
I.
With respect to the first issue, DOC focuses primarily on the Commonwealth
Court’s findings regarding the actions of open records officer Filkosky.4
The court found that upon receipt of Haines request, Filkosky forwarded her e-mail
to DOC’s Bureau of Health Care Services without any instructions. The Bureau did not
respond in writing; however, one of its employees, Cathy Montag, spoke to Filkosky and
informed him that the requested records all related to the No Escape Investigation that
DOC and the DOH were performing. Filkosky concluded that the only other records would
be the inmates’ medical files. N.T. 8/28/17, at 126-28. In addition, the court noted:
Significantly, Filkosky did not receive any potentially responsive records from DOC’s Health Care Bureau. Without understanding the records involved, he relied on DOC’s Health Care Bureau’s assessment that any responsive records related to the No Escape Investigation. Filkosky also did not discern what records were allegedly investigative either to document their content or to assess any exemptions. Filkosky issued DOC’s denial under Section 903 of the RTKL without reviewing any records.
Accordingly, DOC did not perform its duties during the request stage in several material respects. In short, DOC neglected to: perform a good faith search; obtain records from sources consulted during the No Escape Investigation; review all potentially responsive records; and assess the content of responsive records before withholding access.
4Statutory interpretation raises a question of law. Therefore, our standard of review is de novo and our scope of review is plenary. Com. v. Giulian, 141 A.3d 1262, 1266 (Pa. 2016).
[J-49A-2020 and J-49B-2020] - 8 Uniontown II, 185 A.3d at 1168.5
The court noted that pursuant to DOC’s procedures, once the open records officer
receives a RTKL request, “‘there must be no disposal of potentially responsive
records (no deletion of potentially responsive e-mails, etc.), . . . notice of the RTKL
request should be considered the equivalent of a litigation hold.’” Id. at 1167 (citing Jt.
Ex. 1 (RTKL Procedures, 2/12/12) (bold in original)). Further, DOC Policy provides, “[t]he
open records officer must retain all potentially responsive records obtained from the
custodian ‘until further notice’ regardless of a record retention schedule permitting
disposal.” Id. (citing Jt. Ex. 19 at part IV(K)(19)). Here, the Bureau of Health Care
Services did not receive notice of a hold instruction. N.T. 8/28/17, at 45-46.
The court explained that the RTKL is remedial legislation designed to facilitate
transparency of government information and to promote accountability. Id. at 1170 (citing
Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d. 75 A.3d
453 (Pa. 2013)). As such, the court observed that, under the RTKL, proof of bad faith
does not require establishing fraud or corruption. Id. Rather, an abnegation of mandatory
duties by an agency, including performance of a detailed search and review of records to
ascertain if the requested material exists, or if any exclusion may apply, prior to denial of
access will support a finding of bad faith. Id. (citing Chambersburg Area Sch. Dist. v.
Dorsey, 97 A.3d 1281 (Pa. Cmwlth. 2014)).
The court noted that Chapter 9 of the RTKL sets forth an agency’s duties when
responding to a request for records. Upon receiving the request, the officer “must make
5 In the appeal to the OOR, DOC submitted a verification from Director Oppman dated November 4, 2014, which stated that the records Haines requested are “presently part of a noncriminal investigation that was started by the Department and now includes the Department of Health.” Joint Trial Exhibit 6. The verification was prepared by Chase DeFelice, in-house counsel for DOC. The court concluded that “Oppman was not directly involved in responding to the Request during the request stage.” Uniontown II, 185 A.3d at 1168 n.5.
[J-49A-2020 and J-49B-2020] - 9 a good faith effort to determine whether: (1) the record is a public record; and, (2) the
record is in the possession, custody, or control of the agency.” Id. at 1171. The officer
also has a duty to “to advise all custodians of potentially responsive records about the
request, and to obtain all potentially responsive records from those in possession.” Id. at
1171-72. If the agency does not possess the records in question, but a contractor does,
the agency must “take reasonable steps to secure the records from the contractor and
then make a determination if those records are exempt from disclosure.” Id. at 1172
(brackets omitted). After gathering all the relevant records, the agency must then “review
the records and assess their public nature under Sections 9016 and 9037 of the RTKL.”
6 Section 901 of the RTKL provides, in relevant part:
§ 67.901. General rule
Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record, legislative record or financial record and whether the agency has possession, custody or control of the identified record, and to respond as promptly as possible under the circumstances existing at the time of the request.
65 P.S. § 67.901. 7 Section 903 of the RTKL provides, in relevant part:
§ 67.903. Denial
If an agency’s response is a denial of a written request for access, whether in whole or in part, the denial shall be in writing and shall include:
(1) A description of the record requested. (2) The specific reasons for the denial, including a citation of supporting legal authority.
65 P.S. § 67.903.
[J-49A-2020 and J-49B-2020] - 10 Id. As the Commonwealth Court observed, “[i]t is axiomatic that an agency cannot discern
whether a record is public or exempt without first obtaining and reviewing the record.” Id.
The court determined that the DOC did not make a good faith effort to establish
whether it possessed or controlled records responsive to the request. Specifically, the
court found the DOC made no search for responsive records at the request stage, instead
identifying the existence of responsive records only after litigation had begun. Id.
Moreover, the court concluded the DOC failed to obtain all records from its Health Care
Bureau, Pharmacy Contractor, and other record custodians upon receiving Appellees’
request. Id. Accordingly, the court concluded, “[w]ithout obtaining or reviewing any
records, DOC denied access to responsive public records. DOC’s failure to comply with
Section 901 prior to issuing its ‘denial’ under Section 903 constitutes bad faith.” Id.
DOC argues that the open records officer’s denial of Haines’ request cannot
constitute bad faith because Filkosky complied with Section 502 of the RTKL, which
provides, in relevant part:
§ 67.502. Open-records officer
(a) Establishment. -
(1) An agency shall designate an official or employee to act as the open-records officer.
...
(b) Functions. -
(1) The open-records officer shall receive requests submitted to the agency under this act, direct requests to other appropriate persons within the agency or to appropriate persons in another agency, track the agency’s progress in responding to requests and issue interim and final responses under this act. 65 P.S. § 67.502.
[J-49A-2020 and J-49B-2020] - 11 DOC maintains that nothing in Section 502 or any other section of the RTKL places
on the open records officer a duty to perform an independent record search, physically
obtain records, review them or assess their content. Rather, it asserts the duty to make
a good faith effort under Section 901 was placed on the agency, and notes that in this
case, “Ms. Montag, who was familiar with the records, was part of the agency at the time
in question.” Appellant’s Brief, at 17.
DOC recognizes that once it receives a request, an agency must perform an
assessment whether the record requested is a public record. However, it argues that
while the open records officer may perform the assessment, having someone else do so,
such as Ms. Montag from the Bureau of Health Care Services, is not a violation of Section
502, which is silent on the point of who must perform the assessment. Id. at 18.
Appellees assert DOC has misconstrued the Commonwealth Court’s decision
because at no point does the opinion specifically state that the open records officer’s
failure to search for responsive documents is the basis for the finding of bad faith. Rather,
it emphasizes that the court points to DOC’s misconduct.
With respect to the request stage, which is the focus of the instant matter,
Appellees point out that the testimony from the August 28, 2017 hearing supports the
court’s findings regarding DOC’s failure to conduct a good faith search for responsive
records. Filkosky testified that he understood the newspaper had not asked for results of
the DOC’s investigation into the Abolitionist Report. N.T. 8/28/17, at 139. However,
based on his conversation with Ms. Montag, he “got the impression that other than the
investigation, the only records that would exist would be inmates’ medical files.” Id. at
128. He did nothing to confirm his impression nor did he question Ms. Montag as to why
the response to the Abolitionist Report would cover a request for documents from a third
party. Id. at 135.
[J-49A-2020 and J-49B-2020] - 12 Appellees are correct that at no point does the Commonwealth Court specifically
state the open records officer acted in bad faith, but instead concludes that DOC did so.
However, as noted above, the court criticized both Filkosky’s unquestioning reliance on
Ms. Montag’s representations that all responsive records related to the No Escape
Investigation, and Filkosky’s failure to obtain and review those records to document their
content or assess any exemptions. Uniontown II, 185 A.3d at 1168. Immediately
thereafter, the court recognized that “DOC did not perform its duties during the request
stage in several material respects,” id., all of which directly related to the open records
officer’s deficient performance. The court subsequently noted:
Here, DOC did not make a good faith effort to determine whether it had possession or control of responsive records upon receipt of the Request. Critically, it did not perform any search for records in response to the Request.
DOC’s failure to search records in its possession for responsive records during the request stage constitutes bad faith.
Id. at 1172 (citations omitted). Again, there is a clear identification between the failures
of the open records officer and the DOC as found by the court. Accordingly, it is
appropriate for us to consider the duties the court placed on the open records officer in
this case to “obtain records from sources consulted during the No Escape Investigation;
review all potentially responsive records; and assess the content of responsive records
before withholding access.” Id. at 1168.
It is well-settled that “[j]ust like a private corporation, any governmental agency or
political subdivision, and indeed the Commonwealth itself can only act or carry out its
duties through real people - its agents, servants or employees.” Moon Area School Dist.
v. Garzony, 560 A.2d 1361, 1366 (Pa. 1989). Section 901 of the RTKL places upon an
agency the responsibility to “make a good faith effort to determine if the record requested
[J-49A-2020 and J-49B-2020] - 13 is a public record . . . and to respond as promptly as possible under the circumstances
existing at the time of the request.” 65 P.S. § 67.901. Section 502(b)(1) provides that the
open records officer is the individual who receives the request and “track[s] the agency’s
progress in responding to requests.” 67 P.S. § 67.502(b)(1). Here, the court apparently
ascribed to DOC the failure of the open records officer to do anything other than forward
the request to the Bureau of Health Care Services. Filkosky testified that he did not seek
an explanation about the Abolitionist Investigation and how it related to the request; did
not review the request with the Bureau of Health Care Services; did not question the
narrow interpretation of the request by the Bureau; and did not take any steps to confirm
whether the only records that existed other than those generated in the ongoing
investigation were medical records. N.T. 8/28/17, at 134-36.
“When the General Assembly replaced the Right to Know Act in 2009 with the
current RTKL, it significantly expanded public access to governmental records . . . with
the goal of promoting government transparency.” Pa. State Police v. Grove, 161 A.3d
877, 892 (Pa. 2017) (internal quotation and citation omitted). In order to advance this
goal we conclude it is reasonable to impose on the open records officer a duty to act with
diligence when “direct[ing] requests to other appropriate persons within the agency.”
65 P.S. § 502(b)(1). This is what the Commonwealth Court did by implication when it
faulted Filkosky for his slavish reliance on the Health Care Bureau’s conclusion that the
only responsive records related to the No Escape Investigation, and for his failure to
review the allegedly investigative records to determine if they were exempt. Mindful that
the open records officer is the statutorily designated individual responsible for the record
gathering process, we reject DOC’s contention the open records officer fulfills his or her
obligation simply by relying on the representations of others without inquiring as to what
[J-49A-2020 and J-49B-2020] - 14 investigation was made and without reviewing the records upon which the individual
responding to the request relied.
Accordingly, we conclude that the Commonwealth Court did not err when it
determined that DOC acted in bad faith at the request stage, in significant part because
the open records officer failed to act with diligence in response to Appellee’s request.
Related to this issue, DOC argues the Commonwealth Court’s construction of
Section 502 raises significant administrative problems because it would require an open
records officer to know every possible place records could exist, which is impossible for
an agency the size of DOC. It also asserts that requiring an open records officer to obtain
a copy of records that the agency maintains are exempt would result in duplication and
temporary retention of thousands of documents that may never be released. Lastly, it
asserts that requiring the open records officer to assess the records for responsiveness,
instead of relying on the determinations of employees who are familiar with them may be
impossible due to the technical knowledge required to determine if the records are
responsive to the request. Id. at 19-20.
While cognizant of DOC’s argument, in this instance we nevertheless agree with
Appellees’ reliance on Com., Dep’t of Envtl. Prot. v. Legere, 50 A.3d 260, 266 (Pa.
Cmwlth. 2012) where the court held, “[t]here is simply nothing in the RTKL that authorizes
an agency to refuse to search for and produce documents based on the contention it
would be too burdensome to do so.” Such concerns must give way to the important goal
of government transparency, which is the hallmark of the RTKL. See Grove, 161 A.3d at
892.
As recognized by amicus curiae Pennsylvania NewsMedia Association, ‘[a] good
faith response - either to produce records or assert an exemption - cannot occur absent
a good faith search, followed by collection and review of responsive records, so an agency
[J-49A-2020 and J-49B-2020] - 15 has actual knowledge about the contents of the relevant documents.” Brief of Amicus
Curiae, at 15. In light of DOC’s failure to take any reasonable steps to respond to
Appellee’s request, its argument with respect to burdensomeness rings hollow.
II.
DOC next challenges the award of attorney fees under Section 1304 of the RTKL,
65 P.S. § 67.1304. The court observed that it had jurisdiction under the RTKL to consider
an award of attorney’s fees, based on Appellees’ prior successful appeal before the OOR.
After that appeal, the court noted that Appellees began this enforcement action in the
Commonwealth Court’s ancillary appellate jurisdiction under Chapter 13 of the RTKL.
Uniontown III, 197 A.3d at 832.
In general, awards of attorney fees in RTKL proceedings are authorized by Section
1304(a), which provides:
§ 67.1304. Court costs and attorney fees
(a) Reversal of agency determination.--If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.
[J-49A-2020 and J-49B-2020] - 16 65 P.S. § 67.1304(a).
The court noted that the term “final determination” is used in two different ways in
Section 67.1304(a). The section refers to “the final determination of the appeals officer”
in the text of Subsection (a) and “the agency in its final determination” in the text of
Subsection (a)(2). Id. at 834 (quoting 65 P.S. §67.1304). The court concluded that the
term “final determination” was therefore ambiguous. It framed the question as “whether
attorney fees are reserved for when the Court reverses an appeals officer’s determination,
as opposed to when a receiving agency’s determination is reversed.” Id. (emphasis in
original).
The court concluded that the best reading of Section 67.1304(a) is to authorize
attorney fees when an agency’s determination is reversed. Judge Simpson noted that a
contrary interpretation would be unreasonable and yield absurd results. Id.; see also 1
Pa.C.S. § 1922(1). Construing the section to mean an appeals officer’s determination
“would penalize a requester for prevailing in its Chapter 11 appeal . . . because when an
appeals officer recognizes a requester’s access rights in the administrative proceeding,
reversing that appeals officer’s determination would be adverse to the requester.” Id.
(emphasis in original). The court continued that if the section required “reversal of an
appeals officer’s final determination is a prerequisite for requester’s recovery under
Section 1304(a), the agency accused of bad faith may preclude this remedy by electing
not to appeal the final determination to a Chapter 13 Court.” Id. As a result, “the most
egregious of agency conduct, and the denials of access recognized as improper during
the Chapter 11 appeal, could go unchecked.” Id. The Commonwealth Court offered this
case as an illustration of the problems such an interpretation would create.
Consider the current case. DOC disregarded its disclosure duties during each stage of the RTKL process and did not comply with the appeals officer’s final determination in Requester’s favor. Because it obtained the Disclosure Order,
[J-49A-2020 and J-49B-2020] - 17 Requester had no interest in this Court reversing the appeals officer’s final determination. However, DOC elected to not appeal, yet did not discover or disclose all responsive records until after years of litigation. Requester here advocated the public interest in a matter of public health affecting a captive population. Its recovery of fees should not turn on whether a noncompliant agency appealed to this Court.
In the context of “bad faith,” if an agency denied access improperly, it is more likely that an appeals officer would decide disclosure in a requester’s favor. Presuming an agency committed bad faith, and disregarded the RTKL process at each stage as DOC did here, then on appeal, a Chapter 13 Court is more likely to affirm an appeals officer’s determination in a requester's favor than to reverse it.
Id. (emphasis in original). The court also concluded that its construction was supported by cases construing
the Right to Know Act, the RTKL’s predecessor. Specifically, in Parsons v. Pa. Higher
Educ. Assistance Agency, 910 A.2d 177 (Pa. Cmwlth. 2006) (en banc), appeal denied,
917 A.2d 316 (Pa. 2007), the Commonwealth Court held that the attorney fees provision
of the [Right to Know Act] permitted an award of attorney fees “if a court reverses an
agency’s final determination[.]” Parsons, 910 A.2d at 188. Based on these
considerations, the court construed “Section 1304(a)(1) of the RTKL as permitting
recovery of attorney fees when the receiving agency determination is reversed, and it
deprived a requester of access to records in bad faith.” Uniontown III, 197 A.3d at 835.
Therefore, the court held Appellees were entitled to reasonable attorney fees.8
In this case, Appellees requested fees totaling $215,190.75. Id. After reviewing
the legal parameters surrounding what constitutes “reasonable” attorney fees, and upon
consideration of the evidence presented, the Commonwealth Court reduced the amount
of attorney fees to $118,458.37. Id. at 841.
8In light of its conclusion on Section 67.1304(a), the court declined to decide whether the Costs Act would allow Appellees to recover attorney fees. Uniontown III, 197 A.3d at 835; see also generally 42 Pa.C.S. § 2503(7).
[J-49A-2020 and J-49B-2020] - 18 DOC asserts that the Commonwealth Court erred in concluding that the term “final
determination” in Section 1304(a) is ambiguous. It argues, “[w]hile it is true that the term
is used in two places to address different determinations, each use is clear in itself.”
Appellant’s Brief at 22. DOC notes that while Section 1304(a) provides for imposition of
costs and attorney fees if the court reverses “the final determination of an appeals officer,”
Section 1304(a)(2) refers to the final determination of the agency in answering the
request. Id.
DOC draws our attention to Section 1921(b) of the Statutory Construction Act,
which provides that “[w]hen the words of a statute are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S §
1921(b). It avers that the plain language of Section 1304(a) “limits court costs and fees
imposed to two instances --- reversal of the appeals officer or grant of a deemed denial.”
Id. Here, the Commonwealth Court did not reverse the appeals officer because no appeal
was taken from her order. Nor was there a deemed denial by the agency. Accordingly,
DOC argues that in light of the plain language of the statute, the court should not have
resorted to the principles of statutory construction.
Appellees offer several reasons in support of their position that we should affirm
the Commonwealth Court’s interpretation of Section 1304(a). Initially, they note that the
heading of the section, “reversal of an agency decision,” indicates that the provision
applies any time an agency’s decision to deny access is reversed. In addition, they assert
the multiple references to a “final determination” in Section 1304(a), along with the
heading of the section create an ambiguity that justifies the Commonwealth Court’s
reliance on canons of statutory construction. See, Narberth Borough v. Lower Merion
Twp., 915 A.2d 626, 634 (Pa. 2007) (statutory interpretation principles apply when “the
[J-49A-2020 and J-49B-2020] - 19 plain language of the statute, standing alone, leaves room for doubt as to its intended
meaning.”).
Appellees emphasize that “[t]he object of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S.
§ 1921(a). This Court held that “the objective of the RTKL is to empower citizens by
affording them access to information concerning the activities of their government.” Levy
v. Senate of Pennsylvania, 65 A.3d 361, 381 (Pa. 2013) (quotation and citation omitted).
“Courts should liberally construe the RTKL to effectuate its purpose of promoting access
to official government information in order to prohibit secrets, scrutinize the actions of
public officials, and make public officials accountable for their actions.” Id. Appellees’
Brief at 36-37.
When interpreting a statute, we are mindful that “the General Assembly does not
intend a result that is absurd.” 1 Pa.C.S. § 1922(1). Echoing the Commonwealth Court,
Appellees argue that limiting fees to situations where the court reverses an order of the
OOR appeals officer would render such a result. “If reversal of the OOR was a
prerequisite to fees, the RTKL would penalize a requestor for prevailing at the OOR.” Id.
at 37.
Appellees further assert this Court has recognized that the RTKL, which replaced
the former Right to Know Act, “was a dramatic expansion of the public’s access to
government documents” and “demonstrate[s] a legislative purpose of expanded
government transparency through public access to documents.” Levy, 65 A.3d at 381.
The Right to Know Act contained the following fee shifting provision:
(a) Reversal of agency determination. If a court reverses an agency’s final determination, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:
[J-49A-2020 and J-49B-2020] - 20 (1) the agency willfully or with wanton disregard deprived the requester of access to a public record subject to access under the provisions of this act; or
(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law.
65 P.S. § 66.4-1(a) (repealed).
Noting that Section 1304(a) of the RTKL has the identical heading as Section 66.4-
1(a) of the Act, Appellees suggest the RTKL should be read in accord with the
predecessor statute. To do so is consistent with this Court’s direction that when
discerning legislative intent we may consider “the former law, if any, including other
statutes or regulations upon the same or similar subjects.” Com. v. Giulian, 141 A.3d
1262, 1268 (Pa. 2016). Further supporting this position, Appellees note that while the
RTKL bill was before the Senate, the focus was on strengthening the enforcement
provisions and facilitating fee shifting:
Another criticism of Senate Bill No. 1 is the fact that it removes criminal penalties which have existed since the current law was adopted. This was done because we can find no evidence of a single criminal prosecution under the 1957 law, and because the ACLU and the Attorney General of Pennsylvania agree that criminal, sanctions were an inappropriate remedy. Although Senate Bill No. 1 removes the criminal penalties, it also significantly strengthens civil penalties for noncompliance and makes it easier for a plaintiff to recover attorney fees if an agency acts in bad faith. I believe these are things that will have a practical, meaningful effect on people’s ability to obtain records.
SB 1, PN 1583 - Pa. Legis. J., No. 89, Sess. of 2007, Bill on Third Consideration and
Final Passage, at 1407 (Pa. 2007) (Sen. Pileggi).
Because the intent of the Legislature when enacting the RTKL was to expand
access to government records, Appellees argue it would be unreasonable to limit fee
[J-49A-2020 and J-49B-2020] - 21 shifting to a narrower set of circumstances than provided for in the Right to Know Act.
Accordingly, consistent with its predecessor, the enforcement provision of the RTKL
should apply “where an agency’s final decision to deny access is reversed and found to
be in bad faith.” Appellees’ Brief, at 40.
Appellees further challenge DOC’s position that only a deemed denial as opposed
to an express denial can serve as a basis for fee shifting. They note that throughout the
RTKL no distinction is made between deemed and express denials. Accordingly, relying
on the rule that “[e]very statute shall be construed, if possible, to give effect to all its
provisions,” 1 Pa.C.S. § 1921(a), Appellees argue that deemed and express denials give
requestors the same rights under the RTKL. Id. at 40-41.
Appellees maintain the enforcement provisions of the RTKL should be viewed in a
manner consistent with Section 1932(b) of the Statutory Construction Act, which provides,
in relevant part, “[s]tatutes in pari materia shall be read together. 1 Pa.C.S. § 1932(b),
Appellees point out that Section 1305(a) of the RTKL permits a civil penalty of up to
$1,500 “if an agency denied access to a public record in bad faith.” 65 P.S. § 67.1305.
Because this section applies any time a bad faith denial of access occurs, Appellees
assert that a similar standard should apply to the fee shifting provisions of Section
1304(a). Id. at 41.
Our resolution of this issue is grounded on whether Section 1304(a) is ambiguous.
As this Court has noted:
In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute’s plain language generally provides the best indication of legislative intent. See, e.g., McGrory v. Dep’t of Transp., 591 Pa. 56, 915 A.2d 1155, 1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa. 143, 822 A.2d 676, 679 (2003). In construing the language, however, and giving it effect, “we
[J-49A-2020 and J-49B-2020] - 22 should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.” Roethlein v. Portnoff Law Assocs., Ltd., 623 Pa. 1, 81 A.3d 816, 822 (2013), citing Mishoe v. Erie Ins. Co., 573 Pa. 267, 824 A.2d 1153, 1155 (2003). Accord Commonwealth v. Office of Open Records, 628 Pa. 163, 103 A.3d 1276, 1285 (2014) (statutory language must be read in context; in ascertaining legislative intent, every portion is to be read together with remaining language and construed with reference to statute as a whole).
The United States Supreme Court also takes a contextual approach in assessing the plain language of statutes and in determining if an ambiguity exists. See generally King v. Burwell, 576 U.S. 473, 486, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (“If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme.” (internal quotation marks and citations omitted)); Yates v. United States, 574 U.S. 528, 537, 135 S.Ct. 1074, 1081–82, 191 L.Ed.2d 64 (2015) (“‘[T]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but as well by] the specific context in which that language is used, and the broader context of the statute as a whole.’ Ordinarily, a word’s usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things.” (internal citations omitted)).
Com. v. Giulian, 141 A.3d at 1266.
Like the Commonwealth Court, we conclude that the use of the term “final
determination” with respect to the appeals officer and to the agency in the same section
renders the term ambiguous in Section 1304(a).
In light of this ambiguity, recourse to statutory interpretation is appropriate.
Foremost, we look to the intent of the legislature when enacting the RTKL. As this Court
[J-49A-2020 and J-49B-2020] - 23 has recognized, “the objective of the RTKL . . . is to empower citizens by affording them
access to information concerning the activities of their government.” SWB Yankees, LLC
v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). “We are obliged to liberally construe
the [RTKL] to effectuate its salutary purpose of promoting access to official government
information in order to prohibit secrets, scrutinize actions of public officials and make
officials accountable for their actions.” Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19,
29 (Pa. 2015) (quotation and citation omitted).
As noted, the fee shifting provision of the Right to Know Act provided for an award
of reasonable attorney fees and cost of litigation where “a court reverses an agency’s
final determination.” 65 P.S. § 66.4-1(a) (repealed). If we were to accept DOC’s position
that Section 1304 only permits recovery of attorney fees and costs where the court
reverses the determination of the appeals officer or the agency deems the request denied,
a requester would have less rights under the RTKL than under the repealed Right to Know
Act. Considering that the RTKL “significantly expanded public access to governmental
records . . . with the goal of promoting government transparency,” Grove, 161 A.3d at
892, such a result is contrary to legislative intent.
Moreover, as the Commonwealth Court recognized, making the reversal of the
appeals officer’s determination a prerequisite for imposition of attorney fees and costs
can lead to an absurd result. In this case, after DOC denied Appellees’ request, they
sought relief from the OOR appeals officer who issued a disclosure order in their favor.
Having received the relief they requested, Appellees had no reason to seek further
appeal. DOC chose not to appeal, yet nevertheless failed to “discover or disclose all
responsive records until after years of litigation.” Uniontown III, 197 A.3d at 834. The
effect of DOC’s proposed reading of Section 1304 is that a requester who is successful
at the OOR is prevented from seeking attorney fees and costs if an agency does not file
[J-49A-2020 and J-49B-2020] - 24 an appeal. The practical effect of DOC’s position is to limit a requester to “a civil penalty
of not more than $1,500 if an agency denied access to a public record in bad faith.” 65
P.S. § 67.1305.
Consistent with the purpose of the RTKL, we affirm the conclusion of the
Commonwealth Court that Section 1304(a)(1) “permit[s] recovery of attorney fees when
the receiving agency determination is reversed, and it deprived a requester of access to
records in bad faith.” Id. at 835.
Chief Justice Saylor and Justices Baer and Donohue join the opinion.
Justice Wecht files a concurring and dissenting opinion in which Justice Todd joins.
Justice Dougherty files a dissenting opinion.
[J-49A-2020 and J-49B-2020] - 25