PENNSYLVANIA
RIGHT-TO-KNOW LAW
CASE LAW INDEX
Since Pennsylvania’s Right-to-Know Law (“RTKL”) took full effect on January 1, 2009, it has
been the subject of hundreds of appellate court cases. The Pennsylvania Right-to-Know Law Case
Law Index was prepared by the Office of Open Records to help readers find appellate cases relevant
to the most common subjects at issue in RTKL requests and appeals. It’s broken down by subject
matter, and some cases appear under multiple section headings. This index does not include every
appellate case, and you should not rely upon it in place of experienced legal counsel. If you have
any questions or comments, please contact the Office of Open Records.
Updated March 11, 2024
Office of Open Records
333 Market Street, 16
th
Floor
Harrisburg, PA 17101
717-346-9903
[email protected]
https://www.openrecords.pa.gov/
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Contents
Filing a RTKL Request ................................................................................................................................. 4
Specificity of Requests ................................................................................................................................. 6
Searching for Records ................................................................................................................................. 13
What is a Record? ....................................................................................................................................... 17
What is an Agency? .................................................................................................................................... 24
Fee Issues .................................................................................................................................................... 26
Records in the Possession of Third Parties ................................................................................................. 30
Redactions ................................................................................................................................................... 39
Filing a RTKL Appeal ................................................................................................................................ 40
Notifying Third Parties ............................................................................................................................... 44
Proceedings Before the Office of Open Records ........................................................................................ 46
Raising Issues.......................................................................................................................................... 47
Evidentiary Issues ................................................................................................................................... 50
Hearings .................................................................................................................................................. 55
Appeal Deadlines .................................................................................................................................... 56
Waiver ..................................................................................................................................................... 58
In Camera Review ....................................................................................................................................... 59
Exemptions ................................................................................................................................................. 62
Financial Records .................................................................................................................................... 62
708(b)(1) – Personal Security ................................................................................................................. 64
708(b)(2) – Public Safety ........................................................................................................................ 67
708(b)(3) – Danger to Infrastructure ....................................................................................................... 70
708(b)(4) – Computer Security ............................................................................................................... 70
708(b)(5) – Medical History ................................................................................................................... 70
708(b)(6) – Specified Personal Identification Information ..................................................................... 71
708(b)(7) – Employee Personnel Records .............................................................................................. 74
708(b)(8) – Collective Bargaining Records ............................................................................................ 77
708(b)(9) – Drafts of Policy .................................................................................................................... 77
708(b)(10) – Internal, Predecisional Deliberative Records ..................................................................... 78
708(b)(11) – Confidential Proprietary Information/Trade Secrets ......................................................... 82
708(b)(12) – Notes and Working Papers ................................................................................................ 85
708(b)(13) – Donation Records .............................................................................................................. 86
708(b)(14) – Unpublished Academic Papers .......................................................................................... 87
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708(b)(15) – Academic Transcripts ........................................................................................................ 87
708(b)(16) – Criminal Investigative Records ......................................................................................... 88
708(b)(17) – Noncriminal Investigative Records ................................................................................... 93
708(b)(18) – Emergency Dispatch Records ............................................................................................ 99
708(b)(19) – DNA & RNA Records ..................................................................................................... 100
708(b)(20) – Autopsy Records .............................................................................................................. 101
708(b)(21) – Draft Meeting Minutes .................................................................................................... 103
708(b)(22) – Property Acquisition Records .......................................................................................... 103
708(b)(23) – Library Records ............................................................................................................... 103
708(b)(24) – Conditional Donor Records ............................................................................................. 103
708(b)(25) – Endangered Site Records ................................................................................................. 103
708(b)(26) – Procurement Proposals .................................................................................................... 104
708(b)(27) – Insurance Communications ............................................................................................. 105
708(b)(28) – Social Services Information ............................................................................................. 106
708(b)(29) – Constituent Service Requests .......................................................................................... 108
708(b)(30) – Information About Minor Children ................................................................................. 109
Attorney-Client Privilege .......................................................................................................................... 110
Confidentiality Laws ................................................................................................................................. 114
Other Laws Generally ........................................................................................................................... 114
Criminal History Record Information Act (“CHRIA”) ........................................................................ 122
Family Education Rights and Privacy Act of 1974 (“FERPA”) ........................................................... 124
Probation and Parole Records ............................................................................................................... 126
Vehicle Code ......................................................................................................................................... 127
Internal Revenue Code .......................................................................................................................... 129
Constitutional Right to Privacy ................................................................................................................. 130
Records of a Judicial Agency ................................................................................................................... 134
Judicial Review and Enforcement............................................................................................................. 138
Sanctions and Penalties ............................................................................................................................. 144
4
Filing a RTKL Request
These cases relate to interpretations of the statutory requirements for filing valid requests.
Case
Date
Citation
Pa. Gaming Control Board v.
Office of Open Records
November 10, 2014
103 A.3d 1276 (Pa. 2014)
Request: Communications between the Board and applicants for gaming licenses, as well as
financial data provided to the Board.
Holding: Written RTKL requests must be addressed to an agency’s designated Agency Open
Records Officer (AORO) in a meaningful way to trigger an agency’s duty to respond. A request
need not refer or cite to the RTKL. It is the duty of each agency to determine how to implement
the provision requiring that employees forward RTKL requests to the AORO.
Case
Date
Citation
West Easton Borough v.
Mezzacappa
June 12, 2013
2013 Pa. Commw. Unpub.
LEXIS 449
(Pa. Commw. Ct. 2013)
Request: Copies of unidentified emails.
Holding: An agency may not refuse to answer a request because of outstanding fees when those
fees were the result of a deemed denial and thus not communicated to the requester. The requester
is also not barred from disputing the validity of those fees through res judicata.
Date
Citation
September 6, 2013
74 A.3d 417
(Pa. Commw. Ct. 2013)
History: Requester requested records that she previously was granted access to, but then chose
not to inspect.
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Holding: A second request for the same information did not constitute a “disruptive request” under
Section 506. The agency failed to prove that the Request placed an unreasonable burden on it. The
fact that the agency had a small, part-time staff did not equate to an unreasonable burden. The
Pennsylvania Rules of Civil Procedure do not apply to RTKL appeals, as they are statutory appeals.
Case
Date
Citation
Philadelphia District
Attorney’s Office v. Cwiek
September 6, 2017
169 A.3d 711
(Pa. Commw. Ct. 2017)
Request: A certified copy of computer-assisted dispatch records regarding a vehicle stop.
Holding: Certification entails more than an attestation that the record is a true and correct copy of
the record in the agency’s possession; rather, it verifies the authenticity of the document for
purposes of admitting the record as evidence during pending or future litigation. However, the
RTKL does not require an agency to investigate the authenticity of a document that originates from
a separate agency not under its supervision or control and that it only possesses by virtue of a
RTKL request.
Case
Date
Citation
Butler v. Dauphin County
District Attorney’s Office
June 13, 2017
163 A.3d 1139
(Pa. Commw. Ct. 2017)
Request: All search warrants and inventory lists issued under a specific police incident number in
the matter of Commonwealth v. Cleveland Butler, and two docket numbers. The Request specified
certified copies of those records.
Holding: The Commonwealth Court held that an affirmation of an agency is sufficient to show
the records are in fact certified records. In the instant case the affirmation provided by the District
Attorney’s Office was sufficient to show that the records were certified even though the word
“certified” did not appear on the documents.
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Specificity of Requests
These cases relate to the requirement that a RTKL request be “sufficiently specific,” found in
Section 703 of the RTKL.
Case
Date
Citation
Pa. Department of Education v.
Pittsburgh Post-Gazette
July 14, 2015
119 A.3d 1121
(Pa. Commw. Ct. 2015)
Request: All emails of the acting Secretary of Education for approximately one year.
Holding: To be sufficiently specific, a RTKL request should have (1) a subject matter that
identifies the “transaction or activity” of the agency about which records are sought, (2) should
identify a limited scope of responsive records, and (3) should have a finite timeframe. The broader
each element is, the less likely a court will find a RTKL request to be specific. Because this request
had no subject matter and a year-long timeframe, it was not sufficiently specific.
Case
Date
Citation
Pa. Department of
Conservation & Natural
Resources v. Vitali
July 7, 2015
2015 Pa. Commw. Unpub.
LEXIS 479
(Pa. Commw. Ct. 2015)
Request: All DCNR records from October 2010 until the date of the request that related to the
Governor’s budget proposal to raise $75 million dollars through nonsurface impact drilling on
Commonwealth-owned land; reports, studies, memoranda, and correspondence relating to leasing
additional Commonwealth land for oil or natural gas development; records showing
Commonwealth land for which surface or mineral rights are under consideration for leasing;
records showing the mineral rights owned by the Commonwealth in state parks; records showing
calculations regarding revenue that could be generated by leasing additional Commonwealth lands
for natural gas or oil development including all correspondence between the Governor’s Office of
the Office of the Budget and DCNR that referenced the $75 million dollar revenue estimate; and
records including proposals, inquiries, or other communication made to DCNR from those that
expressed interest in leasing Commonwealth lands for oil and gas development.
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Holding: This request was specific, notwithstanding its breadth, because it featured a limited
timeframe and a very specific subject matter. The agency failed to give a third party notice of the
appeal, so that matter was remanded to the OOR for the agency to present evidence as to applicable
exemptions.
Case
Date
Citation
Commonwealth v. Legere
July 31, 2012
50 A.3d 260
(Pa. Commw. Ct. 2012)
Request: All Section 208 determination letters issued on well operators since January 1, 2008.
Holding: A request for many records may be specific if there are no judgments to be made
regarding how individual records relate to the request. Here, because the request sought one type
of document mandated by statute and known to the agency, it was specific. Further, an agency
cannot avoid disclosing existing public records by claiming, in the absence of a detailed search,
that it does not know where the documents are, and that to require the agency to locate and produce
them would implicate Section 705 of the RTKL.
Case
Date
Citation
Pa. State Police v. Office of
Open Records
May 26, 2010
995 A.2d 515
(Pa. Commw. Ct. 2010)
Request: A variety of information from the PSP regarding vehicle stops and searches and the
seizure of property taken from such vehicles.
Holding: The language used in part of the request, “Any and all records, files, or manual(s),
communication(s) of any kind…” was insufficiently specific to enable the PSP to respond to the
request. Context can be used to determine the meaning of a request, even if it appears from its face
to be overbroad. However, to the extent that a request is partially insufficiently specific, the OOR
may order disclosure of the portion of the request that is sufficiently specific.
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Case
Date
Citation
Pa. State Police v. Zloczower
October 4, 2011
2011 Pa. Commw. Unpub.
LEXIS 822
(Pa. Commw. Ct. 2011)
Request: A variety of police records, including certain enumerated records.
Holding: The fact that a request seeks a broad variety of material and is burdensome does not
mean that a request is insufficiently specific. The phrase “any and all,” when applied to a category
of records is insufficiently specific, but listing categories of records, i.e., “manuals relating to
vehicle stops, searches, and seizures,” is sufficiently specific. When part of a request is sufficiently
specific, it can be severed from the body of an insufficiently specific request and addressed
separately.
Case
Date
Citation
Easton Area School District v.
Baxter
January 24, 2012
35 A.3d 1259
(Pa. Commw. Ct. 2012)
Request: Copies of all emails sent and received by nine school board members, the district
superintendent and the general school district email account over a 30-day period.
Holding: A request for emails that is limited to a 30-day period and identifies specific individuals
is sufficiently specific for purposes of the RTKL, even when it does not request emails related to
a specific subject matter.
Case
Date
Citation
Pa. Department of
Corrections v. Hilaire
November 25, 2015
2015 Pa. Commw. LEXIS 528
(Pa. Commw. Ct. 2015)
Request: Records documenting inmate and employee injuries and deaths for five years.
Holding: Although the burden on an agency may be considered in a determination of specificity,
it is not relevant where the burden is caused by an agency’s own file-keeping practices. While an
injury report may contain medical information, it can be redacted and the entirety of the report is
not necessarily exempt.
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Case
Date
Citation
Pa. Department of Corrections
v. Disability Rights Network of
Pa.
January 12, 2012
35 A.3d 830
(Pa. Commw. Ct. 2012)
Request: Records reflecting “the number of admissions to psychiatric observations cells by
institution and by month for the past two years” and records reflecting “the number of inmates …
who were (i) administered involuntary medications, (ii) placed on suicide watch, (iii) engaged in
self-harm behavior, (iv) restrained for mental health purposes over the past two years.”
Holding: The agency argued that it did not maintain the statistical data requester sought, and the
requester appealed to the OOR, arguing that the agency could produce certain forms, from which
the requester could compile the data sought in its request. The court held that the requester had
improperly attempted to modify, and add specificity to, his request at the appeal stage.
Case
Date
Citation
Pa. Housing Finance Agency v.
Ali
March 7, 2012
43 A.3d 532
(Pa. Commw. Ct. 2012)
Request: Copies “of all correspondence, including proposal and sales agreements concerning item
4A – Restructuring of Mortgage Loan – Tasker Village[] found on the PHFA February 10, 2011
Agenda and, or distributed to the Board” and copies “of all correspondence, including proposal
and sales agreements concerning item 4C Project Workout – Chestnut/56th Street Apartments
found on the PHFA February 10, 2011 Agenda and, or distributed to the Board.”
Holding: The OOR interpreted the request as seeking only correspondence “distributed to the
Board for the Agenda” and therefore held that the request was sufficiently specific. The Court held
that this interpretation was incorrect, as it was not apparent from the face of the request.
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Case
Date
Citation
Pa. Office of Inspector
General v. Brown
December 21, 2016
2016 Pa. Commw. LEXIS 557
(Pa. Commw. Ct. 2016)
Request: Rules, regulations, policies or related authority that governs its duties and functions, that
were specifically designed by the Office of Inspector General.
Holding: The Request was not sufficiently specific to advise the agency of what records were
being requested and did not identify the agency transaction or activity for which the record was
sought, thereby failing to provide any context by which the agency could narrow the search.
Case
Date
Citation
Commonwealth v. Engelkemier
October 14, 2016
148 A.3d 522
(Pa. Commw. Ct. 2016)
Request: Emails sent or received by the then-Chief of Staff to the Governor. The agency requested
that the requester narrow the request, and the requester responded with a list of keywords.
Holding: A keyword list is not necessarily a substitute for a properly-defined subject matter(s) –
i.e., a particular transaction or activity of an agency. A clearly-defined subject matter, such as
“liquor privatization,” by contrast, has a better chance of passing the specificity test. However, in
this instance, the agency did not object to the breadth, but merely suggested a rolling production
schedule to which the requester agreed. Accordingly, although the list is “lengthy, and in some
respects broad,” the agency waived this issue.
Case
Date
Citation
Montgomery County v. Iverson
August 15, 2012
50 A.3d 281
(Pa. Commw. Ct. 2012)
Request: An electronic copy of all email records to and from various email domains that included
a list of keywords the agency could use to conduct a search.
Holding: A list of keywords will not substitute for a subject matter in analyzing specificity under
the RTKL if those keywords are broad and do not serve to significantly narrow the universe of
potentially responsive records.
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Case
Date
Citation
Askew v. Office of the
Governor
January 16, 2013
65 A.3d 989
(Pa. Commw. Ct. 2013)
Request: Any certified copies of the Senate and House bills ratified and presented to any past or
present Governor of the Commonwealth of Pennsylvania that relinquished jurisdiction to the state
over an address in Turtle Creek, PA.
Holding: The request was overly broad because it did not establish a timeframe, nor did it narrow
the scope of the documents sought. Furthermore, a request cannot require an agency to conduct
legal research to ascertain what is being sought.
Case
Date
Citation
Mollick v. Worcester
Township
December 7, 2011
32 A.3d 859
(Pa. Commw. Ct. 2011)
Request: Any and all emails between certain township commissioners (as well as between
commissioners and township employees) regarding any township business for previous five years.
Holding: Because the requester failed to specify the category or type of township business or
activity for which he was seeking information, the request was insufficiently specific because it
“would place an unreasonable burden on an agency to examine all its emails for an extended time
period without knowing, with sufficient specificity, what [t]ownship business or activity the
request is related.”
Case
Date
Citation
Pa. Dep’t of Health v.
Shepherd
May 13, 2022
2022 Pa. Commw. Unpub.
LEXIS 207 (Pa. Commw. Ct.
2022)
Request: All email correspondence between the Secretary and Executive Deputy Secretary for
three days.
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Holding: An agency which finds a sufficiently specific request unduly burdensome may not deny
the request for that reason alone, although repeated or sequential requests within the Post-Gazette
framework may be subject to Section 506. If an agency requires more time to respond to a request,
it must timely make such application under APSCUF, rather than waiting until the end of the
process.
Case
Date
Citation
Hoyer v. County of Lebanon
August 29, 2022
2022 Pa. Commw. Unpub.
LEXIS 364 (Pa. Commw. Ct.
2022)
Request: Conflicts of interest which would prevent two attorneys from working on the same case
Holding: A request which requires an agency to exercise independent legal judgment is
insufficiently specific, especially when it describes the contents of a document rather than
identifying any specific type of document. A long delay in the appeal process is not grounds for
judgment for the appellee.
Case
Date
Citation
Pa. Office of the Governor v.
Brelje
February 23, 2024
2024 Pa. Commw. LEXIS 65
(Pa. Commw. Ct. 2024)
Request: Emails to and from two deputy press secretaries for periods of 10 to 20 days
Holding: The RTKL requires that a request be sufficiently specific, which includes a multi-part
factor analysis as set forth in past cases. A review of prior cases shows that the elements are
intended to ensure that the universe of records an agency is required to locate and review are
sufficiently limited and certain. Additionally, in some cases an agency which wrongly denies a
RTKL request for insufficient specificity may be entitled to additional time.
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Searching for Records
These cases relate to the Agency Open Records Officer’s duty to conduct a “good faith search”
for records upon receipt of a RTKL Request.
Case
Date
Citation
Commonwealth v. Legere
July 31, 2012
50 A.3d 260
(Pa. Commw. Ct. 2012)
Request: All Section 208 determination letters issued on well operators since January 1, 2008.
Holding: The requester may not be penalized for an agency’s decision in storing information – if
an otherwise-specific request seeks records that are kept in a way that is inconvenient for the
agency to assess and access, that is not a legal basis for denial.
Case
Date
Citation
Pa. State System of Higher
Education (PASSHE) v.
Association of Pa. State
College and University
Faculties (APSCUF)
July 6, 2016
142 A.3d 1023
(Pa. Commw. Ct. 2016)
History: At issue was whether the requesters’ requests were sufficiently specific to enable the
agencies to find the responsive records, whether the requests were made non-specific because they
require the disclosure of a purportedly large number of records, and whether the agency should be
given additional time to review each record given the number of records requested. The request
sought more than 2,000 emails with attachments.
Holding: The fact that a request is burdensome does not deem it overly broad. Further, while the
OOR cannot refashion a request, it may consider context available to the agency. Finally, when an
agency claims it neither has the time nor resources to conduct a document-by-document review
within the time-period required by the RTKL, the agency must provide the OOR with a valid
estimate of the number of documents being requested, the length of time that people charged with
reviewing the request require to conduct this review, and if the request involves documents in
electronic format the agency must explain any difficulties it faces when attempting to deliver the
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documents in that format. Based on the above information, the OOR can then grant any additional
time warranted so that the agency can reasonably discern whether any exemptions apply.
Case
Date
Citation
Paint Township v. Clark
February 5, 2015
109 A.3d 796
(Pa. Commw. Ct. 2015)
Request: Township cell phone contract with Verizon, cell phone bills, name of the Township
official authorizing the payments, content of all text, picture and video messages, and any stored
data on the phone including browsing history.
Holding: Information stored on and regarding a private cell phone used by an Agency employee
for Agency related business is public record and subject to the RTKL. The Agency is not required
to create or compile data using forensic means but is required to provide the requested information
in the manner in which it exists.
Case
Date
Citation
Pa. Dep’t of Health v. Mahon
August 19, 2022
283 A.3d 929 (Pa. Commw.
Ct. 2022)
Request: The number of patients certified to receive medical marijuana for various conditions
Holding: The language of exemption in the Medical Marijuana Act ties exempt status to patient
information, and therefore does not protect certain aggregated information. Additionally, the
evidentiary burden to demonstrate that a record does not exist is smaller than what is needed to
show that an exemption applies.
Case
Date
Citation
Hodges v. Pa. Department of
Health
August 25, 2011
29 A.3d 1190
(Pa. Commw. Ct. 2011)
Request: Sought licensing records related to Prison Health Services, Inc. and an inmate healthcare
provider.
15
Holding: To meet its burden of proof that records do not exist, an agency must search for the
records that are requested and provide a sworn statement or attestation that the records do not exist.
An agency is not required to search for different possible spellings or classifications to prove that
nothing was misfiled.
Case
Date
Citation
In re Silberstein
January 6, 2011
11 A.3d 629
(Pa. Commw. Ct. 2011)
Request: Sought various electronic communications between individual township commissioner,
his constituents, and outside legal counsel regarding applications for development projects in the
township.
Holding: In making a good faith determination of whether a requested record is a public record,
the Agency Open Records Officer (AORO) is required, among other things, to direct requests to
other appropriate persons within the agency. An AORO has a duty to inquire with public officials
to determine whether the public official possesses a requested record that could be deemed public.
It is then the AORO’s duty and responsibility to determine whether the record is public, subject to
redaction, or exempt from disclosure.
Case
Date
Citation
PG Publishing Co. v.
Governor’s Office of
Administration
July 10, 2015
120 A.3d 456
(Pa. Commw. Ct. 2015)
History: This case consists of preliminary objections to an action in mandamus to compel agencies
to retain records for two years.
Holding: The RTKL does not modify or mandate extensions to existing records maintenance laws
and creates no duty that an agency must maintain records past the point at which they can be legally
disposed of.
Case
Date
Citation
16
Breslin v. Dickinson Township
May 24, 2013
68 A.3d 49
(Pa. Commw. Ct. 2013)
Request: Sought copy of an email addressing township business currently in the possession of
former township office manager.
Holding: While the RTKL does not require an agency to seek requested documents from former
employees or officials, it does not forbid it either. Because the email at issue in this case was not
in the township’s possession, custody, or control, and was not in the possession of a party who had
been shown to be contracted by the township to perform a governmental function, the township
had no obligation under the RTKL to obtain the email.
Case
Date
Citation
Pa. State Police and The
Municipal Police Officers’
Education and Training
Commission v. McGill and
The Pittsburgh Post-Gazette
January 8, 2014
83 A.3d 476
(Pa. Commw. Ct. 2014)
Request: A list or database of officers accredited by MPOETC.
Holding: The names of public employees must be released unless they are engaged in undercover
work, and budgets cannot be classified. However, because the PSP lacked the information
necessary to determine which officers are working undercover and would have been forced to
create a record by contacting each department, the request was properly denied.
Case
Date
Citation
Pa. Department of Labor &
Industry v. Earley
September 9, 2015
126 A.3d 355
(Pa. Commw. Ct. 2015)
Request: Emails relating to a printer and ink cartridges.
Holding: The provision of affidavits by the individuals named in the request was insufficient to
prove the nonexistence of responsive records; the agency also needed to search its server.
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What is a Record?
These cases relate to the definition of a record, and how to determine if it is a record of an
agency. The RTKL only provides for access to records of an agency.
Case
Date
Citation
Office of the Governor v. Bari
May 4, 2011
20 A.3d 634
(Pa. Commw. Ct. 2011)
Request: Minutes of board meetings, as well as letters and memos.
Holding: The RTKL defines “record” as “[i]nformation . . . that documents a transaction or activity
of an agency and that is created, received or retained pursuant to law or in connection with a
transaction, business or activity of the agency.” A record in the possession of a Commonwealth
agency or local agency shall be presumed to be a public record. An agency may not deny a request
as burdensome simply because it has been filed twice, or because it has come at a busy time for
the agency.
Case
Date
Citation
Meguerian v. Pa. Office of the
Attorney General
November 14, 2013
86 A.3d 924
(Pa. Commw. Ct. 2013)
Request: All emails, in electronic and searchable format, reflecting communications by and
between Jessie Smith and specified individuals using a Dauphin County email between January 1,
2011 through January 30, 2013.
Holding: Emails sent from a public employee’s work email are records of their agency only if they
are related to that agency’s business. Further, an attorney’s client does not have standing to appeal
a denial of their attorney’s request.
18
Case
Date
Citation
Walker v. Pa. Insurance
Department
January 15, 2012
2012 Pa. Commw. Unpub.
LEXIS 425
(Pa. Commw. Ct. 2012)
Request: Records relating to an insurance appraisal and to individuals who handled a specific
insurance matter.
Holding: A Request that seeks answers to questions rather than specific documents is not a valid
request under the RTKL. Also, the OOR is entitled to rely on unrebutted, sufficiently detailed
attestations from the agency.
Case
Date
Citation
Gingrich v. Pa. Game
Commission
January 12, 2012
2012 Pa. Commw. Unpub.
LEXIS 38
(Pa. Commw. Ct. 2012)
Request: Records relating to deer harvest and habitat, and for related financial information. The
Requester sought information contained in the Game Commission’s database and suggested
possible formats for the Commission to produce that information.
Holding: A request for information is a request for a record under the RTKL. A request for data
seeks records. Drawing information from a database does not constitute creating a record under
the RTKL. Suggesting a possible format in which to present the requested information was not an
improper request to create a record. An agency can be required to draw information from a
database, although the information must be drawn in formats available to the agency.
Case
Date
Citation
Allegheny County Department
of Administrative Services v. A
Second Chance, Inc.
February 16, 2011
13 A.3d 1025
(Pa. Commw. Ct. 2011)
Request: Payroll lists of employees of three entities, including the third-party contractor, with
which the county had contracts.
19
Holding: In order for third-party records to be considered public records under the RTKL, they
must be in the possession of the contracting party and must directly relate to the governmental
function. Third parties may intervene at any point during a RTKL request or appeal and are not
barred later if they do not participate initially.
Case
Date
Citation
Pa. Office of Attorney General
v. The Philadelphia Inquirer
November 19, 2015
127 A.3d 57
(Pa. Commw. Ct. 2015)
Request: Copies of all emails that were of a personal nature and involved pornographic or
otherwise inappropriate material to or from the accounts of former employees.
Holding: The emails only related to personal activity of individuals. While the public has the right
to access “records” relating to agency employees and its “transactions” or “activities,” the RTKL
does not compel disclosure of all agency emails solely on the basis that they violate an agency
policy. Emails are not records under the RTKL merely because they were sent or received using
an agency email address or by virtue of their location on an agency computer.
Case
Date
Citation
Easton Area School District v.
Baxter
January 24, 2012
35 A.3d 1259
(Pa. Commw. Ct. 2012)
Request: Copies of all emails sent and received between a certain 30-day period, for the email
addresses of nine school board members, the district superintendent and the general school district.
Holding: Not all emails on agency servers are public records. An email is a public record when it
documents a transaction or activity of an agency and was created, received or retained pursuant to
law or in connection with a transaction, business or activity of the agency, pursuant to Section 102.
Case
Date
Citation
Brown v. Monroe County
May 13, 2022
280 A.3d 344 (Pa. Commw.
Ct. 2022)
20
Request: A copy of the move sheet and callout sheet for the Requester.
Holding: While a litigation hold may apply to records which have been requested, if records have
been purged prior to receipt of a request no litigation hold can issue. Nothing in the RTKL
supersedes an agency’s ordinary records retention schedules. Failure to file a brief with the trial
court is not necessarily grounds for an automatic judgment.
Case
Date
Citation
Pa. Department of Labor &
Industry v. Tabor
March 31, 2016
2016 Pa. Commw. Unpub.
LEXIS 251
(Pa. Commw. Ct. 2016)
Request: An itemized cellphone bill and email records for an identified employee for ten months.
Holding: A request for records may seek only records that exist at the time the filing is received
by the agency; otherwise responsive records which post-date the request need not be provided.
Furthermore, where there is no evidence before the OOR that records pertain to any transaction or
activity of an agency, those records do not meet the definition of “public record” in the RTKL.
Case
Date
Citation
In re Silberstein
January 6, 2011
11 A.3d 629
(Pa. Commw. Ct. 2011)
Request: Electronic communications between a township commissioner, constituents, and outside
legal counsel regarding applications for development projects in the township.
Holding: Communications between an individual township commissioner and citizens of the
township maintained on the commissioner’s personal computer were not “public records” subject
to disclosure. Unless the emails and other documents in the Commissioner’s possession were
produced with the authority of the agency, or were later ratified, adopted or confirmed by the
agency, the requested records cannot be deemed “public records” under the RTKL.
Name
Date
Citation
Barkeyville Borough v.
Stearns
December 29, 2011
35 A.3d 811
(Pa. Commw. Ct. 2011)
21
Request: Communications between named members of the borough council, including emails.
Holding: Emails written by an agency official, discussing agency business, are records of an
agency even if they are maintained on a private computer. Attorney’s fees under the RTKL may
only be awarded due to bad faith, an unreasonable interpretation of the law, or a frivolous appeal.
Name
Date
Citation
Mollick v. Worcester
Township
December 7, 2011
32 A.3d 859
(Pa. Commw. Ct. 2011)
Request: Emails between certain township commissioners and township employees regarding
Township business, regardless of whether they were transmitted on personal computers or personal
email accounts.
Holding: Emails exchanged between a majority of the township’s supervisors on their personal
computers regarding township business or activities may be “records of the agency.” The question
in determining whether an email was a public record is whether the record documented business
of the township, not whether it was transmitted using a township computer or email address.
Name
Date
Citation
Commonwealth v. Cole
September 12, 2012
52 A.3d 541
(Pa. Commw. Ct. 2012)
Request: Records involving the Pennsylvania Sunshine Program, which provides rebates to
homeowners and small businesses for solar electric projects they install on their property.
Holding: A “record” subject to disclosure under the RTKL includes information “regardless of
form” and includes information contained in a database. Pulling information from a database is
not the creation of a record, and therefore may be required under the RTKL.
22
Name
Date
Citation
Clearfield County v. Bigler
Boyz Enviro, Inc.
July 28, 2016
144 A.3d 258
(Pa. Commw. Ct. 2016)
Request: All records related to the consideration of the requester as a HAZMAT vendor.
Holding: Handwritten notes made by a county commissioner recording unsolicited input from
private citizens were not records of the County because they did not document a transaction or
activity of the County.
Name
Date
Citation
Soto v. Pa. State Police
May 7, 2018
2018 Pa. Commw. Unpub.
LEXIS 246
(Pa. Commw. Ct. 2018)
Request: Records related to testing conducted on a liquid substance confiscated by a state trooper.
Holding: The fact that a Requester has a private right to records or otherwise requires access to
the records does not mean that those records are public under the RTKL.
Case
Date
Citation
Ctr. Cnty. Dist. Atty’s Office v.
Manivannan
November 18, 2022
2022 Pa. Commw. Unpub.
LEXIS 505 (Pa. Commw. Ct.
2022)
Request: Records related to the investigation, prosecution, and sentencing of the Requester
Holding: An appellee under the RTKL does not have a right to cross-examine the official who
produces an attestation. Additionally, if a record does not exist and the only way to check for it
on a “backup server” would require the creation of a new record, the RTKL does not compel the
agency to initiate that process. Finally, an agency which does not have access to records due to
unsound practices of past officials is not required to attempt to retrieve those records from those
officials under the RTKL.
23
Case
Date
Citation
Pennrest Sch. Dist. v. Cagle
April 24, 2023
293 A.3d 783 (Pa. Commw.
Ct. 2023)
Request: Facebook posts and comments by school board members related to LGBTQ issues
following a news article featuring several such posts about one of the school libraries.
Holding: Posts on a social media platform constitute agency records only if they qualify under a
nonexclusive factors test, including (1) the “trappings” of an agency account; (2) the relationship
between the content of the posts and the business of the agency, and; (3) whether the posts were
produced under the agency’s authority or later ratified by agency action.
Date
Citation
July 27, 2023
299 A.3d 1079 (Pa. Commw.
Ct. 2023)
Request: Information concerning the Mayor of the Borough’s Facebook page.
Holding: Pursuant to Cagle, the proper test to use was the nonexclusive factors analysis. However,
the court on remand notes that there is a much stronger argument for the private page of a mayor
being a public record, as a mayor has certain executive duties they may perform on their own
through such a platform.
24
What is an Agency?
These cases relate to the definition of a government agency under the RTKL. The RTKL can only
be used to access records of a government agency.
Case
Date
Citation
Philadelphia Industrial
Development Corp. v. Ali
April 18, 2011
2011 Pa. Commw. Unpub.
LEXIS 317
(Pa. Commw. Ct. 2011)
Request: Contracts, lists of personnel and salaries, and an enacting ordinance.
Holding: Although the Philadelphia Industrial Development Corporation (PIDC) performed
certain government functions, it is not a “similar governmental entity” under the RTKL because it
was not created by statute, is not a political subdivision, its members are not appointed exclusively
by any political body, and it cannot be disbanded by statute. The extent of PIDC’s governmental
functions, while significant, does not transform it into an agency.
Case
Date
Citation
Scott v. Delaware River Valley
Port Commission
October 3, 2012
56 A.3d 40
(Pa. Commw. Ct. 2012)
History: Requester filed a request with the Delaware Valley Regional Planning Commission
(DVRPC), an organization authorized by Congress to cooperate with state and public
transportation operators to develop transportation improvement plans.
Holding: The DVRPC provides advisory services, which are not constitutionally mandated nor
necessary for the operation of the Commonwealth, and does not perform an essential governmental
function.
25
Case
Date
Citation
Pysher v. Clinton Township
Volunteer Fire Co.
May 8, 2019
209 A.3d 1116
(Pa. Commw. Ct. 2019)
Request: Loan agreements, meeting minutes, bank statements and utility bills.
Holding: To determine whether a volunteer fire company is an agency under the meaning of the
RTKL, the OOR must undertake a fact-specific inquiry into that fire company’s sources of
funding, entanglement with local municipal government, and the identities of its members.
Date
Citation
May 24, 2023
2023 Pa. Commw. Unpub.
LEXIS 280
Request: Various financial records, payments, loans, meeting minutes, etc.
Holding: The prior Pysher case established a factors analysis test to determine whether nonprofit
entities like volunteer fire departments are local agencies under the RTKL. In this case, the court
blesses an analysis emphasizing governmental function, the majority source of its funding, and the
abilities of local municipalities to audit or otherwise control the fire department in ways other than
simply appointing board members.
Case
Date
Citation
Campbell v. Pa.
Interscholastic Ath. Ass’n.
November 30, 2021
268 A.3d 502
(Pa. Commw. Ct. 2021)
Request: Invoices, cleared check images, bank statements, line-item transactions and other
communications
Holding: The PIAA is an agency under the RTKL due to its inclusion in the statute by name, and
because it is an actor which takes state action and is funded by the state. However, PIAA did
demonstrate that it should be granted an opportunity to redact certain invoices and satisfied its
burden to show that certain records do not exist.
26
Case
Date
Citation
Pa. Interscholastic Athletic
Ass’n v. Campbell
February 21, 2024
2024 Lexis PA 288 (Pa. 2024)
Request: Invoices, cleared check images, bank statements, line-item transactions and other
communications
Holding: The PIAA is an agency under the RTKL because it fits the definition of “Commonwealth
Entity” under the law, and the Nonprofit Law does not make the agency’s records exempt because
the indicia of the General Assembly’s intent indicate otherwise.
Fee Issues
These cases relate to fees assessed by an agency in response to a RTKL Request. With a few
exceptions, agencies may only charge fees in accordance with the OOR’s Official RTKL Fee
Schedule.
Case
Date
Citation
Pa. Department of Education
v. Bagwell
January 29, 2016
131 A.3d 638
(Pa. Commw. Ct. 2016)
Request: Letters, emails, memorandums and reports between the former Secretary of Education
and 29 individuals working for Pennsylvania State University or board members, and between the
former Secretary and former Governor and members of his executive staff and cabinet.
Holding: An agency is not required to provide a statement of prepayment within five business
days of the Request. When a fee estimate is expected to exceed $100, an agency is entitled to
demand prepayment prior to granting a request at any time within their five-day response or within
the thirty-day extension. However, an agency may only charge the Requester for records to which
the agency is actually granting access – it is not entitled to charge a large fee and refuse to process
the Request until prepayment is made. An agency should identify exempt records in its final
response and cannot charge the Requester for those records.
27
Case
Date
Citation
Brown v. Pa. Department of
Corrections
October 31, 2017
2017 Pa. Commw. Unpub.
LEXIS 825
(Pa. Commw. Ct. 2017)
Request: Various items, including emails, inventory sheet and menu, from the Department of
Corrections (DOC). DOC denied the request due to outstanding fees owed on a prior request.
Holding: An agency asserting unpaid fees as a basis for denying access to records has the burden
of proving the requester’s indebtedness. In this case, the agency failed to meet its burden. The
declaration offered by the Agency Open Records Officer was conclusory and did not identify the
records previously copied or prepared, or the date on which they were prepared; nor did the
declaration expressly state when the records were made available to the Requester or whether the
agency notified the Requester of the amount due.
Case
Date
Citation
Brown v. Pa. Department of
Corrections
December 15, 2017
2017 Pa. Commw. Unpub.
LEXIS 920
(Pa. Commw. Ct. 2017)
Request: The Department’s Hepatitis C policy and protocol.
Holding: An agency may refuse to process a request for nonpayment of fees a Requester owes on
an earlier request, but it must prove that those records were copied, prepared and actually made
available to the Requester.
Case
Date
Citation
Prison Legal News v. Office of
Open Records
April 8, 2010
992 A.2d 942
(Pa. Commw. Ct. 2010)
Request: Records relating to claims against the Department of Corrections for over $1,000.
Holding: An agency may charge fees for requests as permitted by the statute, but they must explain
the basis for the fee in their denial so that it may be reviewed on appeal. Furthermore, the RTKL’s
28
fee waiver provision is discretionary, and an agency’s decision not to waive fees is not reviewed
on appeal.
Case
Date
Citation
State Employees Retirement
System (SERS) v. Office of
Open Records
November 4, 2010
10 A.3d 358
(Pa. Commw. Ct. 2010)
Request: Annual pension payments made to four retired legislators.
Holding: An agency may not charge fees for labor costs involved in reviewing records under
Section 1307 of the RTKL. However, other labor fees may be passed along if they are necessarily
incurred and reasonable under Section 1307(g) of the RTKL.
Case
Date
Citation
Froehlich v. Pa. Department of
Public Welfare
October 11, 2011
29 A.3d 863
(Pa. Commw. Ct. 2011)
Request: Sought fee waiver when requesting documents from the Department of Public Welfare.
Holding: An agency has discretion to waive or require a fee, but it must provide a non-
discriminatory rationale to the Requester for denial of a fee waiver. The OOR does not have
jurisdiction to hear such denials; they must be appealed to a trial court.
Case
Date
Citation
Pa. Department of
Transportation v. Drack
March 27, 2012
42 A.3d 355
(Pa. Commw. Ct. 2012)
Request: Sought copies of all Department of Transportation correspondence regarding a speed
control device referred to as ENRADD; copies of all versions of calibration procedure used for
ENRADD; and copies of all versions of operator’s and/or training manuals for ENRADD.
Holding: An agency must issue a final response to a request in the timeframes set forth even if the
Requester owes the agency fees.
29
30
Records in the Possession of Third Parties
These cases relate to records that the agency does not physically possess but may be required to
obtain in response to a RTKL Request.
Case
Date
Citation
SWB Yankees, LLC v.
Wintermantel
May 29, 2012
45 A.3d 1029 (Pa. 2012)
Request: Copies of all names and bids submitted to SWB Yankees, LLC, for a concessionaire
contract at PNC field.
Holding: When an agency contracts with a third party to perform a non-ancillary part of that
agency’s function, records dealing with that function become accessible through Section 506(d)(1)
of the RTKL, even when they are not physically in the agency’s possession. To that end, while
bids submitted for a concessionaire contract may seem to have little relation to the purposes of
government, they are still government records when ownership of the stadium derives from the
government.
Case
Date
Citation
East Stroudsburg University
Foundation v. Office of Open
Records
May 24, 2010
995 A.2d 496
(Pa. Commw. Ct. 2010)
Request: Sought lists of donors, donor files and minutes of the university’s foundation.
Holding: A university foundation that conducts fundraising activities on behalf of a university is
performing a government function, and records of fundraising may be obtained through Section
506(d) of the RTKL.
31
Case
Date
Citation
Municipality of Monroeville v.
Drack
July 16, 2013
2013 Pa. Commw. Unpub.
LEXIS 561
(Pa. Commw. Ct. 2013)
Request: Records related to ENRADD speed timing devices, including “the procedure used to
calibrate/test each ENRADD device every 60 days.”
Holding: Because statute requires law enforcement to calibrate ENRADD devices regularly, it is
a governmental function, and the procedures used to test such devices directly relate to that
function and may be reached through Section 506(d) of the RTKL. However, the contractor must
be given the opportunity to present other defenses to disclosure, such as trade secret claims.
Name
Date
Citation
Highmark, Inc. v. Voltz
June 2, 2017
163 A.3d 485
(Pa. Commw. Ct. 2017)
Request: Records submitted by Highmark to the Insurance Department regarding certain
reimbursement rate adjustments and adjustments to its provider fee schedule, as well as records
evidencing the Department’s response to the forgoing.
Holding: Under the RTKL, third parties have due process rights, which consist of notice and an
opportunity to be heard. However, a party is not entitled to a hearing. Additionally, the Accident
and Health Filing Reform Act and the Professional Health Services Plan Corporations Act, which
must be construed in pari materia as they pertain to the same subject matter and are part of the
same regulatory scheme, exempt the disclosure of rate information. However, even if the Acts did
not require the submission of rates to the Department, the rate information would not constitute
records “of” the Department.
32
Case
Date
Citation
West Chester University v.
Schackner
September 17, 2015
124 A.3d 382
(Pa. Commw. Ct. 2015)
Request: All records detailing the amount paid by the University’s Foundation to Bravo Group, a
lobbying firm hired by the University, for a campaign to educate the public about and to engender
support for the enactment of SB 1275 and for a copy of a contract between Bravo Group and the
Foundation and its staff involving the campaign to secure its adoption.
Holding: The agency did not prove that the records were exempt under Section 708(b)(10). The
court also held that the release of records from the university with regard to the lobbying efforts
was proper under Section 506(d) of the RTKL, because the university contracted with the lobbyist
firm to perform a governmental function on behalf of the university – namely, to influence
legislation. Furthermore, where a third party serves largely as the alter ego of an agency, a court
is more likely to find that a third party’s records are within the control of the agency.
Case
Date
Citation
Dental Benefit Providers, Inc.
v. Eiseman
October 27, 2015
124 A.3d 1214 (Pa. 2015)
Request: Documents, including contracts, rate schedules, and correspondence in the agency’s
possession, custody, or control evidencing the Provider Rates
Holding: Documents of dental health services subcontractors of contractors of the agency are not
records of the agency because the RTKL requires that an agency have an actual contract with a
third party in order to obtain records under Section 506(d)(1) of the RTKL.
Case
Date
Citation
Staub and Citizen’s Voice v.
City of Wilkes-Barre and LAG
Towing, Inc.
October 3, 2013
2013 Pa. Commw. Unpub.
LEXIS 739
(Pa. Commw. Ct. 2013)
Request: Towing reports and receipts pertaining to city-directed towing.
33
Holding: An agency has an affirmative duty to determine if records exist within its constructive
possession and does not satisfy its duties under the RTKL simply by forwarding requests to a third
party and allowing that third party to control the response. Furthermore, an agency may be required
to pay attorney’s fees in such a situation.
Case
Date
Citation
Edinboro University of Pa. v.
Ford
April 21, 2011
18 A.3d 1278
(Pa. Commw. Ct. 2011)
Request: Contractor payroll records that the University did not maintain.
Holding: The fact that an agency no longer maintains or never maintained records that document
a government function performed by the agency’s contractor is irrelevant; the agency still has a
duty to retrieve those records under Section 506(d) of the RTKL.
Case
Date
Citation
Equity Forward v. Pa.
Department of Human Services
May 17, 2019
2019 Pa. Commw. Unpub.
LEXIS 292
(Pa. Commw. Ct. 2019)
Request: Agreements and expenditures relating to pregnancy and parenting support services.
Holding: When a third party submits an affidavit intended to show that records sought do not
relate to the governmental function the third party performs, it must provide an affidavit
sufficiently detailed to apprise the OOR as to what that function is and how the requested records
differ. However, a third party may use a literal interpretation of the records sought.
Case
Date
Citation
Edinboro University of Pa. v.
Folletti
June 9, 2011
2011 Pa. Commw. Unpub.
LEXIS 561
(Pa. Commw. Ct. 2011)
Request: Records of work done by the University’s Foundation’s subcontractors.
34
Holding: Constructing student housing is not necessarily a governmental function; however,
where the agreement assigns considerable control to the government entity in determining
acceptable specifications, it may demonstrate governmental control for the purposes of 506(d) of
the RTKL.
Case
Date
Citation
UnitedHealthcare of Pa., Inc. v.
Baron
October 5, 2017
171 A.3d 943
(Pa. Commw. Ct. 2017)
Request: Copies of rates paid during 2014 to 2016 by managed care organizations to nursing
homes for nursing home care of medical assistance recipients during the period when the
organization is liable for payment of such costs.
Holding: Records of a private company are not accessible through the RTKL merely because they
are in the possession of an entity regulated by the agency. Where rates paid by one private entity
to another were neither regulated nor accessed by the government, they are not agency records.
Case
Date
Citation
Real Alternatives v. Pa. Dep’t
of Human Servs.
July 19, 2022
279 A.3d 96 (Pa. Commw. Ct.
2022)
Request: Records submitted by service providers related to pregnancy services
Holding: Service rate information which does not implicate the provider duties to the Department
were not accessible under Section 506(d) of the RTKL because they did not directly relate to the
Department’s grant; however, monthly invoice information was provided because it described the
government function for which the grant had been issued.
35
Case
Date
Citation
Office of the Budget v. Office
of Open Records
January 6, 2011
11 A.3d 618
(Pa. Commw. Ct. 2011)
Request: Copies of the payroll of an independent contractor company that worked on a learning
center project, which received funds from the Office of the Budget.
Holding: An agency’s right to review records alone does not give rise to a presumption of
constructive possession of records. Constructive possession is not inferred from the mere
availability of the records to an agency upon request. The test under Section 901 is whether the
records document a transaction or activity of the agency. Records in the possession of a third party
documenting a transaction or activity of the agency are in the agency’s constructive possession
and constitute “records” under the RTKL. Section 901 prevents agencies from frustrating the
purposes of the RTKL merely by placing records in the hands of third parties.
Case
Date
Citation
West Chester University of Pa.
v. Browne
June 19, 2013
71 A.3d 1064
(Pa. Commw. Ct. 2013)
Request: The benefits plan offered to employees of a contractor working for the University.
Holding: The benefits plan is not a record under the RTKL because it does not document a
transaction or activity of the agency, it was not created or maintained by the agency, and the
contract between the agency and contractor does not mention an employee benefits plan and does
not require the contractor to provide a copy of the plan to the agency. While the agency was
required to inspect certified payrolls under the Prevailing Wage Act, those records did not contain
information about the benefits plan.
36
Case
Date
Citation
In Re: Right to Know Law
Request Served on Venango
County’s Tourism Promotion
Agency and Lead Economic
Development Agency Appeal
of: Michael R. Hadley
January 3, 2014
83 A.3d 1101
(Pa. Commw. Ct. 2014)
History: Employee names and salary information of a private nonprofit corporation. Requester
argued that because County Commissioners designated the nonprofit as a tourism promotion
agency, its employee records were subject to the RTKL.
Holding: The agency had no connection to the nonprofit corporation through Section 506(d),
because the agency had no control over the nonprofit corporation and had not delegated any
authority. The nonprofit corporation does not perform a government function, nor does the
nonprofit corporation qualify as a “local agency,” as it was only classified as an “agency” so that
it might apply for and receive grants from the Commonwealth as an agent designated by the
county. Finally, the purpose of the nonprofit corporation – stimulating the local economy – is not
a core purpose of a government agency.
Case
Date
Citation
Bagwell v. Pa. Department of
Education
July 19, 2013
76 A.3d 81
(Pa. Commw. Ct. 2013)
Request: Records received by ex officio member of the Penn State University Board of Trustees.
Holding: The OOR does not generally have jurisdiction over records of Penn State. However, the
OOR had jurisdiction over the requested records because the Request was directed to an agency,
which possessed the records, and Board membership by the Secretary of that agency is required
by statute. The records the Secretary receives as a Board member are received by the Department
pursuant to its statutory function as supporter and influencer of education at state-related
institutions. Because the records are received by a Commonwealth agency to enable it to perform
its statutory governmental function, they qualify as “records” under the RTKL.
37
Case
Date
Citation
Buehl v. Office of Open
Records
October 14, 2010
6 A.3d 27
(Pa. Commw. Ct. 2010)
Request: Records showing the actual or wholesale costs the Department’s third-party contractor
paid for various clothing and electronic items resold to the Department for sale to inmates through
the prison commissary.
Holding: Records in the contractor’s possession relating to costs it paid for items did not directly
relate to the performance of a governmental function – i.e. providing commissary services to
inmates. What the contractor paid for the items was beyond the parameters of the contract with the
Department.
Case
Date
Citation
Giurintano v. Pa. Department
of General Services
April 25, 2011
20 A.3d 613
(Pa. Commw. Ct. 2011)
Request: Request seeking records relating to the agency’s contract with Language Services
Associates for telephone translation services. Records requested included independent contractor
agreements between the company and interpreters providing telephone translation services, and
names of all interpreters who have provided services.
Holding: OOR properly ruled that the agency was not required to disclose the company’s
independent contractor agreements with interpreters who have not actually performed translation
services because those agreements were not directly related to the contract since the interpreters
had not actually performed, and may never perform, translation services under the contract.
Case
Date
Citation
Indiana University of Pa. v.
Atwood
August 10, 2011
2011 Pa. Commw. Unpub.
LEXIS 668
(Pa. Commw. Ct. 2011)
Request: Certified payroll records of private contractors/subcontractors that performed certain
construction activities to the exterior of the University’s library.
38
Holding: Because the requested records existed within the possession of the University’s third-
party contractor, Section 506(d) of the RTKL required the University to produce them even where
the University had discarded the copies in its actual possession pursuant to its record retention
policy. Even if the agency had never maintained physical possession of the records, it would still
have had constructive possession.
Case
Date
Citation
Chester Community Charter
School v. Hardy (Philadelphia
Inquirer)
February 29, 2012
38 A.3d 1079
(Pa. Commw. Ct. 2012),
vacated and remanded on
other grounds, 74 A.3d 118
(Pa. 2013)
Request: Salary and contract documents in the possession of a private company which had
contracted with the agency to operate the school’s facilities on a day-to-day basis.
Holding: The mere fact that the Requester may be involved in litigation adverse to an agency is
irrelevant to whether the record is accessible via the RTKL. A requester’s motive under the RTKL
is irrelevant. Also, records of the school’s operation are part of the agency’s government function,
and therefore may be accessed under Section 506(d) of the RTKL.
Case
Date
Citation
Allegheny County and A
Second Chance, Inc. v.
Parsons and WTAE-TV
January 14, 2013
61 A.3d 336
(Pa. Commw. Ct. 2013)
Request: Names, dates of birth and hire dates of the employees of a private non-profit contractor
that provided social services for the agency related to the “kinship care” foster care program.
Holding: Names, dates of birth and employee hire dates are not a component of any of the agency’s
submissions for licensure or required for performance of the contract, and therefore did not directly
relate to the governmental function of providing social services to clients. “That the names, dates
of birth and hire dates may pertain to the contract does not entail a direct relationship to performing
the governmental function. … Section 506(d) does not reach all records in possession of a private
contractor that relate to the governmental function; rather, the records reached are only those that
relate to performance of that function.”
39
Redactions
When a record contains both public and exempt information, an agency may be required to redact
the exempt information and provide that redacted record under Section 706 of the RTKL.
Case
Date
Citation
Fort Cherry School District v.
Acton
February 8, 2012
38 A.3d 1092
(Pa. Commw. Ct. 2012)
Request: Payroll/salary information and line item budgets for five specified school years in an
electronic format.
Holding: If electronic files are stored on a database the records may be subject to the RTKL in the
form they are stored. Electronic files are subject to redaction and such redaction may take place
on an electronic record as it would a paper record.
Case
Date
Citation
Southeastern Pa. Transp. Auth.
v. Steinheiser
January 5, 2024
2024 Pa. Commw. Unpub.
LEXIS 13 (Pa. Commw. Ct.
2024)
Request: Videos of a train on which Requester was denied access
Holding: Although the agency demonstrated that the responsive records would present a danger
to personal or public safety if provided unredacted, video redaction must be provided as an option.
The case was remanded to the OOR to determine the specifics of the video redaction.
an option. The case was remanded to the OOR to determine the specifics of the video redaction.
40
Filing a RTKL Appeal
These cases relate to requirements for properly appealing a denied RTKL Request. If you wish to
file an appeal with the OOR, you can find more information here.
Case
Date
Citation
Office of the Governor v.
Donahue and Office of Open
Records
August 18, 2014
98 A.3d 1223 (Pa. 2014)
Request: Various budgetary and employment records from the Office of the Governor.
Holding: The deadlines and timeframes of the RTKL begin when an Agency Open Records
Officer (AORO) receives a request, and not upon the receipt of the request by some other agency
employee. Therefore, an agency has five days from the date the AORO first receives the request
to issue a response.
Case
Date
Citation
Barnett v. Pa. Department of
Public Welfare
June 12, 2013
71 A.3d 399
(Pa. Commw. Ct. 2013)
Request: Documents related to services and wait times at County Assistance Offices.
Holding: A requester must explain why they believe a denial is deficient under Section 1101(a),
but they are not required to identify and rebut individual flaws in large “omnibus response” denials
in which an agency lists large number of laws and exemptions that might apply.
41
Case
Date
Citation
Padgett v. Pa. State Police
May 22, 2013
73 A.3d 644
(Pa. Commw. Ct. 2013)
Request: Police records, including incident reports, tickets issued, and signed forms relating to
two criminal cases.
Holding: On appeal the requester must give a reason the requested is public record. A requester’s
stated motivation for making a request is irrelevant, as well as any intended use for the information.
Case
Date
Citation
Michak v. Pa. Department of
Public Welfare
November 9, 2012
56 A.3d 925
(Pa. Commw. Ct. 2012)
Request: License inspection summaries issued by the Department of Public Welfare.
Holding: Requester may not alter the request on appeal, even where the new requested records are
substantially similar to those in the request.
Case
Date
Citation
Indiana University of Pa. v.
Loomis
June 24, 2011
23 A.3d 1126
(Pa. Commw. Ct. 2011)
History: Sought financial records from a state-related University’s foundation. The agency agreed
to provide redacted records but requested a check for $118 in copying fees.
Holding: Section 506(d)(3) allows an agency to require full payment of applicable fees before
receiving access to records. There is no right to appeal to the OOR until applicable copy fees have
been paid in full.
42
Case
Date
Citation
Crawford v. Bedford County
District Attorney’s Office
July 11, 2013
2013 Pa. Commw. Unpub.
LEXIS 533
(Pa. Commw. Ct. 2013)
Request: Investigative records related to an identified criminal prosecution from 2005.
Holding: The OOR properly declined to hear the appeal, as it does not have jurisdiction over
appeals from local agencies related to criminal investigations, pursuant to Section 1101(a). Instead,
the Requester should have appealed to the District Attorney’s Office.
Case
Date
Citation
Whitaker v. Pa. Department of
Corrections
March 8, 2013
2013 Pa. Commw. Unpub.
LEXIS 181
(Pa. Commw. Ct. 2013)
Request: A copy of the Requester’s sentencing order.
Holding: RTKL appeals are intended to determine whether records of an agency are public or
nonpublic, and they do not serve as a collateral vehicle for attacking an inmate’s sentence.
Case
Date
Citation
McKelvey v. Pa. Office of the
Attorney General
October 13, 2017
172 A.3d 122
(Pa. Commw. Ct. 2017)
History: Requester sought “a copy of any report(s) generated as a result of a review of emails
turned over by the OAG.” This request was denied. On appeal, the issue became whether certain
appendices, created after the request date, were disclosable under the same Request.
Holding: The appendices sought on appeal were not created until after the Request was filed, and
the Request could not have encompassed those records – a RTKL request may only seek records
that exist at the time of filing.
43
Case
Date
Citation
Pa. Department of Corrections
v. Office of Open Records
April 6, 2011
18 A.3d 429
(Pa. Commw. Ct. 2011)
Request: Inmate sought to review the medical license of the sick call nurse that provided medical
services to him.
Holding: Section 1101(a) of the RTKL requires that a requester specify the particular defects in
an agency’s stated reasons for denying a RTKL request. While a requester is not required to prove
anything, Section 1101 places a burden on a requester to identify flaws in an agency’s denial. An
appeal that fails to sufficiently specify the reasons for appeal should be dismissed rather than
addressed by OOR.
Case
Date
Citation
Saunders v. Pa. Department of
Corrections
July 5, 2012
48 A.3d 540
(Pa. Commw. Ct. 2012)
Request: Job descriptions, policies and regulations from the Department of Corrections.
Holding: Agency’s citations to various subsections of Section 708, which merely parroted the
statutory language, were sufficient to provide notice to the Requester of the grounds for the denial.
In his appeal, the Requester was required per Section 1101 of the RTKL to state why the records
did not fall under the asserted exemptions. A record that falls within one of the exemptions set
forth in Section 708 does not constitute a “public record.”
44
Notifying Third Parties
If a third party has an interest in a record possessed by an agency, the agency may be required
to notify the third party of the pending request or appeal.
Case
Date
Citation
Pa. Department of Corrections
v. Maulsby
July 23, 2015
121 A.3d 585
(Pa. Commw. Ct. 2015)
Request: An unredacted copy of the contract between the Pennsylvania Department of Corrections
and Wexford Health Sources, Inc.
Holding: A third-party contractor must be afforded an opportunity to challenge the release of any
purported confidential proprietary information on due process grounds.
Case
Date
Citation
Pa. Department of
Conservation & Natural
Resources v. Vitali
July 7, 2015
2015 Pa. Commw. Unpub.
LEXIS 479
(Pa. Commw. Ct. 2015)
Request: A state Representative sought all DCNR records from October 2010 until the date of his
request relating to Governor Tom Corbett’s budget proposal to raise $75 million dollars through
nonsurface impact drilling on Commonwealth-owned land; reports, studies, memoranda, and
correspondence relating to leasing additional Commonwealth land for oil or natural gas
development; records showing Commonwealth land for which surface or mineral rights are under
consideration for leasing for additional oil or natural gas development; records showing the
mineral rights owned by the Commonwealth in state parks; records showing calculations made as
to the revenue which may be generated by leasing additional Commonwealth lands for natural gas
or oil development including, but not limited to, all correspondence between the Governor’s Office
of the Office of the Budget and DCNR that referenced the $75 million dollar revenue estimate;
and records, including but not limited to, proposals, inquiries, or other communication made to
DCNR from those that expressed interest in leasing Commonwealth lands for oil and gas
development.
45
Holding: This request was specific, notwithstanding its breadth. The agency failed to give a third
party notice of the appeal, so that matter was remanded to the OOR for the agency to present
evidence as to applicable exemptions. The Court held that it would be unfair to penalize the third
party for the agency’s non-compliance.
46
Proceedings Before the Office of Open Records
Most appeals of denied RTKL Requests are heard by the Office of Open Records. This section
relates to the procedures governing such appeals.
Case
Date
Citation
California Borough v. Rothey
April 25, 2018
185 A.3d 456
(Pa. Commw. Ct. 2018)
History: The Requester sought a video from a police holding cell showing a physical altercation.
The agency denied the Request and directed an appeal to the OOR; but on appeal, the agency
argued that the record was a criminal investigative record, and that the OOR had no jurisdiction to
hear the case. The OOR held that it did have jurisdiction and granted the appeal, which was further
appealed to the local Court of Common Pleas.
Holding: Although it was not clear that the General Assembly intended to divest the OOR of
jurisdiction when a criminal investigative claim is raised among many others, here the matter was
moot because the Court of Common Pleas had jurisdiction and conducted a de novo proceeding.
However, the video was exempt as a criminal and noncriminal investigative record because it was
relied upon to fire the officer and file criminal charges against him.
47
Raising Issues
With few exceptions, the OOR only considers issues raised by one of the parties to an appeal.
Case
Date
Citation
McClintock v. Coatesville Area
School District
August 9, 2013
74 A.3d 378
(Pa. Commw. Ct. 2013)
History: The Requester sought documents relating to Graystone Academy Charter School. The
agency did not respond to the Requests within five business days as required by Section 901 of the
RTKL. On appeal, the Requester argued that a failure to set forth any grounds for denial should
constitute a waiver on appeal.
Holding: An initial deemed denial by an Agency does not result in a waiver of all exemptions on
appeal to the Office of Open Records, although it may be grounds for a court to levy sanctions
under Sections 1304(a) and 1305(a) of the RTKL if that denial was done in bad faith.
Case
Date
Citation
Haverstick v. Pa. State Police
April 12, 2022
273 A.3d 593 (Pa. Commw.
Ct. 2022)
Request: Communications between the PSP and several other entities regarding “games of skill”
Holding: Where a party has no meaningful opportunity to make an argument before the OOR, it
may be raised for the first time before a reviewing court. Where an agency is providing a public
record, it may not redact sections of that record simply because they are not responsive to the
request.
Case
Date
Citation
Chester Community Charter
School v. Hardy (Philadelphia
Inquirer)
February 29, 2012
38 A.3d 1079
(Pa. Commw. Ct. 2012),
vacated and remanded on
other grounds, 74 A.3d 118
(Pa. 2013)
48
Request: Salary and contract documents in the possession of a private company which had
contracted with the agency to operate the agency’s facilities on a day-to-day basis.
Holding: The OOR should not engage in ex parte communication even for entirely procedural
discussions, such as an oral request for an extension of time in an appeal, because the other party
cannot be assured that the communication was solely procedural. However, the Court could not
conclude that the ex parte communication in this case denied the agency any due process because
the trial court conducted a de novo review of the matter.
Case
Date
Citation
Kokinda v. Lehigh County
January 8, 2014
2014 Pa. Commw. Unpub.
LEXIS 20
(Pa. Commw. Ct. 2014)
Request: Log book entries reflecting the dates an inmate’s attorney had visited a prison, or
certification of the dates of said visits.
Holding: The OOR improperly dismissed the appeal for failure to include a copy of the request as
required by the OOR’s Interim Guidelines; these guidelines constitute an infirm basis for dismissal
because they are not regulations and have no force or effect of law. Because the OOR has a
statutory obligation to consider the merits of an appeal prior to appellate review, the trial court
could not consider the merits of the matter without remanding to the OOR for an initial review.
Case
Date
Citation
Wishnefsky v. Pa. Department
of Corrections
July 29, 2016
144 A.3d 290
(Pa. Commw. Ct. 2016)
Request: Records showing the price paid for hernia support products and services.
Holding: The due process requirements of the RTKL entail notice and a chance to be heard, which
may be violated if an agency raises new arguments and evidence for the first time on appeal and
the Requester is not afforded an opportunity to respond to that information. This may also serve
as a sound basis for reconsideration of an order by the OOR.
Case
Date
Citation
49
Haverstick v. Pa. Office of the
Attorney General
April 12, 2022
273 A.3d 600 (Pa. Commw.
Ct. 2022)
Request: Communications related to the Requester and any previous RTKL requests or responses.
Holding: An RTKL appeals officer in any agency is performing a quasi-judicial function and
should avoid ex parte communications to ensure no impropriety occurs. It is not clear that such
communications are, themselves, sufficient reason to vacate an exemption under Section
708(b)(10); however, such communications cannot be exempt if they are not deliberative in
character.
50
Evidentiary Issues
An agency bears the burden of proving that a record is exempt in proceedings before the OOR. To
meet this burden, an agency must generally submit competent evidence.
Case
Date
Citation
Office of the Governor v.
Scolforo
April 23, 2013
65 A.3d 1095
(Pa. Commw. Ct. 2013)
Request: A copy of the Governor’s calendar.
Holding: An agency may meet their burden of proof in a RTKL matter through affidavit testimony,
but those affidavits must be specific enough to permit the OOR to ascertain how the records meet
the criteria of the exemption being invoked by the agency. An affidavit which merely parrots the
language of the RTKL or is not sufficiently specific will not meet the agency’s burden of proof.
Case
Date
Citation
Pa. Game Commission v.
Fennell
October 26, 2016
148 A.3d 101
(Pa. Commw. Ct. 2016)
Request: A report and other records related to a complaint involving a hunting tree stand.
Holding: Where there are no disputed facts or conflicting evidence in the record on appeal, the
OOR may be able to determine that records are exempt without any evidentiary submission from
the agency. The Court notes that failure to make a submission before the OOR is not necessarily a
default. Here, the Requester’s own appeal acknowledged all of the elements necessary for the OOR
to determine that the records related to a noncriminal investigation.
Case
Date
Citation
Pa Dep’t Labor & Indus. v.
O’Connor
March 21, 2021
2021 Pa. Commw. Unpub.
LEXIS 161, 252 A.3d 702
51
Request: All elevator inspection reports for modernization & construction jobs in the City of
Philadelphia.
Holding: Because it was unclear which type of statutory inspection was at issue and because it
appeared to the court that the record lacked critical information and the benefit of recent cases,
the court could not determine whether an exemption applied. OOR’s Final Determination was
vacated and appeal remanded back to the OOR to develop an evidentiary record.
Case
Date
Citation
Pa. State Police v. Muller
June 30, 2015
124 A.3d 761
(Pa. Commw. Ct. 2015)
Request: Records relating to a phone call about a meeting at a sportsman’s club.
Holding: A conclusory affidavit that provided no details and merely tracked the language of the
exemption did not establish the applicability of Section 708(b)(18)(i), especially in light of
language in the text of the exemption stating that it does not apply to time response logs.
Furthermore, an agency cannot ignore its burden of proving an exemption before the OOR and
then seek to supplement the record on appeal.
Case
Date
Citation
Brown v. Pa. Department of
Corrections
September 1, 2017
2017 Pa. Commw. Unpub.
LEXIS 653
(Pa. Commw. Ct. 2017)
History: Requester appealed from the agency’s refusal to grant his RTKL request due to
outstanding fees for copy charges from a prior request. The agency requested that the Court revoke
Requester’s in forma pauperis (IFP) status.
Holding: IFP status for RTKL appeals cannot be revoked under PLRA, because a RTKL request
is not a “prison conditions litigation.” The agency’s affidavit as to the amount of fees owed was
insufficiently specific because it did not identify the documents that were reproduced, as well as
the number of pages included in the $6.32 charge.
52
Case
Date
Citation
Moore v. Office of Open
Records
March 25, 2010
992 A.2d 907
(Pa. Commw. Ct. 2010)
Request: Inmate sought a copy of his sentencing order from Pennsylvania’s Department of
Corrections.
Holding: Under Section 705 of the RTKL, an agency is not required to create a record which does
not currently exist in its custody, possession or control. The agency’s submission of an affidavit
that no records exist may serve as sufficient evidentiary support.
Case
Date
Citation
Mack v. Pa. Dep’t of
Corrections
July 26, 2023
2023 Pa. Commw. Unpub.
LEXIS 393
Request: Financial and housing records for certain programs at a correctional institute.
Holding: Unclear language in the agency’s affidavit (“likely”), combined with certain other
context clues, should have put the OOR on notice that the records might exist.
Case
Date
Citation
Janesch v. Pa House of
Representatives
July 18, 2023
299 A.3d 1030 (Pa. Commw.
Ct. 2023)
Request: Records related to the retention of outside counsel
Holding: The House submitted evidence which was sufficient to demonstrate that records were
properly redacted for attorney-client privilege even though it did not submit a privilege log. All
of the documents were produced and contained sufficient context to demonstrate the likely
application of the privilege.
53
Case
Date
Citation
Couloumbis v. Senate of
Pennsylvania
July 18, 2023
300 A.3d 1093 (Pa. Commw.
Ct. 2023)
Request: Records related to the retention of outside counsel
Holding: The Senate submitted insufficient evidence to demonstrate that the records were
privileged, and the privilege log submitted did not contain sufficient information; as a result, the
appeals officer should have conducted a review in camera.
Case
Date
Citation
UnitedHealthcare of Pa. v. Pa.
Department of Human Services
May 31, 2018
2018 Pa. Commw. Unpub.
LEXIS 295
(Pa. Commw. Ct. 2018)
Request: Records related to a reissued Request for Proposal by the agency, including proposal,
evaluation, and investigation documents.
Holding: Without a description of the particular documents withheld, the Court was unable to
assess whether all documents responsive to the Request qualified for an exemption and found it
necessary to remand in part to the OOR to require the submission of an exemption log.
Case
Date
Citation
Paxtang Borough v. Hoyer
March 3, 2017
2017 Pa. Commw. Unpub.
LEXIS 145
(Pa. Commw. Ct. 2017)
Request: Certain pages of a police officer’s employment application and emails between the
officer and the police chief, including the email in which the officer resigned.
Holding: An affidavit describing the search for responsive records and attesting to the
nonexistence of additional responsive records is sufficient to satisfy an agency’s burden of proof.
In the absence of evidence to the contrary, public officials are assumed to act in good faith, and
unsubstantiated allegations of unlawful actions or bad faith are insufficient to overcome this
presumption.
54
55
Hearings
The OOR has the authority to hold a hearing, but will usually decide appeals based on written
submissions, affidavits and documentary evidence.
Case
Date
Citation
Sherry v. Radnor Township
School District
April 4, 2011
20 A.3d 51
(Pa. Commw. Ct. 2011)
Request: Records or reports of Academic Honor Code violations from a school district.
Holding: There is no right to discovery in a RTKL action. There is no right to in camera review
or a hearing. Accordingly, affidavits may be used in the fact-finding process during OOR review.
Additionally, a superseding FERPA provision precluded disclosure of certain records.
Case
Date
Citation
Brown v. Pa. Office of
Inspector General
June 13, 2016
2016 Pa. Commw. Unpub.
LEXIS 434
(Pa. Commw. Ct. 2016)
Request: Rules and regulations governing the duties of specified officers, as well as reports
reflecting the names of staff who were sanctioned as the result of OIG investigations.
Holding: There is no right to a hearing under the RTKL, and the OOR’s refusal to grant one cannot
be a violation of due process. A filing which does not meet the requirements of Section 1303(b)
of the RTKL- a copy of the request, the agency’s response and an appeal- may be dismissed for
failure to include a required document as a matter of statute.
56
Appeal Deadlines
Every part of the RTKL process is governed by statutory deadlines; failure to meet one of these
deadlines can have serious consequences for appeals.
Case
Date
Citation
Pa. State System of Higher
Education (PASSHE) v.
Association of Pa. State
College and University
Faculties (APSCUF)
July 6, 2016
142 A.3d 1023
(Pa. Commw. Ct. 2015)
Request: A wide range of financial reports and related communications from each of
Pennsylvania’s universities.
Holding: The requests made were voluminous but sufficiently specific. However, because the
agency did not have enough time to produce and review the vast number of records at issue during
its tight deadlines, the Court held that the agency could apply to the OOR for additional time to
meet the request deadlines by providing a valid estimate of the number of documents, the length
of time required, and whether there will be an issue with providing the documents electronically
if so requested. Based on that information, the OOR may grant additional time as circumstances
warrant.
Case
Date
Citation
Little v. Pa. Department of
Corrections
February 18, 2020
224 A.3d 454
(Pa. Commw. Ct. 2020)
History: The Request sought subpoenas for telephone calls made by the Requester, as well as a
report concerning those subpoenas. The Department denied the Request under various security-
related exemptions, and the Requester’s appeal was apparently filed after the statutory deadline.
The OOR dismissed the appeal and denied a request to file nunc pro tunc because mailing delays
had made compliance impossible.
Holding: The OOR should have granted the Requester relief nunc pro tunc because of the
persistent mailing delays created by the inmate mailing rules. Whenever delays are created by the
57
prison mailing system, nunc pro tunc relief should be considered, and the OOR should take
evidence on whether an inmate had a full chance to appeal.
Case
Date
Citation
Thomas v. Lebanon Cnty.
DA’s Office
December 20, 2023
2023 Pa. Commw. Unpub.
LEXIS 677 (Pa. Commw. Ct.
2023)
Request: Records related to a grant
Holding: Although the court received the Requester’s appeal after the time for appeal had run, it
was still timely under the Prison Mailbox Rule, as evidence of record in the form of cash slips
showed that it had been timely placed in the prison mailbox. Nevertheless, the trial court did not
err in concluding that no responsive records exist.
58
Waiver
Although courts review the decisions of the OOR de novo, it is possible to waive an argument if
that argument is not presented to the OOR.
Case
Date
Citation
Levy v. Senate of Pa.
April 24, 2013
65 A.3d 361 (Pa. 2013)
History: The Requester sought records relating to a lawmaker’s retention of counsel, and certain
records were denied or redacted pursuant to the attorney-client privilege. On appeal to the Senate’s
appeals officer, for the first time, the Senate asserted other privileges. The Senate appeals officer
held that those privileges had been waived.
Holding: Due to the short mandatory deadlines and extraordinary speed of RTKL appeals, an
agency’s failure to assert all grounds for denial prior to an appeal does not constitute waiver. The
attorney-client privilege does not usually apply to the mere identity of clients but may do so if that
identification would disclose the legal advice given or confidential communications provided.
Furthermore, descriptions of legal services provided by an attorney merit a line-by-line
examination of the relevant invoices to determine if any summary would disclose the client’s
motives, legal strategy or other confidential communications.
Case
Date
Citation
Easton Area School District v.
The Express Times
April 30, 2012
2012 Pa. Commw. Unpub.
LEXIS 307
(Pa. Commw. Ct. 2012)
Request: Copies of emails.
Holding: When an agency articulates certain exceptions in its initial denial letter but fails to argue
those exceptions before the OOR, those exceptions may be considered waived during any
subsequent judicial appeal.
59
In Camera Review
In certain cases, the OOR may order an agency to produce the contested records for the Appeals
Officer to review “in camera” – that means that the Appeals Officer will look at the records
themselves to determine if the agency’s exemptions apply.
Case
Date
Citation
Commonwealth v. Center
Township
June 24, 2014
95 A.3d 354
(Pa. Commw. Ct. 2014)
History: Request sought several months of invoices from the Township solicitor, which were
provided in redacted form. On appeal to the OOR, the requester sought an in camera review. The
agency denied the OOR’s request for a privilege log, and the OOR ordered an in camera review,
but the agency refused to comply. The OOR stayed the matter and sought an order to enforce from
the Commonwealth Court, which held that the OOR possessed the authority to order such a review.
Holding: The RTKL “through necessary implication and in appropriate circumstances, upon
request by a party, grants the OOR with the authority to conduct in camera review of documents
to ascertain whether they constitute privileged material.”
Case
Date
Citation
Berks County v. Office of
Open Records
January 3, 2019
204 A.3d 534
(Pa. Commw. Ct. 2019)
History: The OOR issued a Final Determination following an in camera review of material
involving the agency’s communications with attorneys for detained aliens. The agency sought a
declaratory judgment against the OOR, arguing that the OOR lacks the power to review records in
camera on its own motion.
Holding: The OOR has the power to order in camera, where appropriate, upon its own motion,
and the agency is not entitled to limit which OOR staff view the documents. A declaratory
judgment is only available against the OOR where special circumstances prevent the parties from
obtaining relief through the regular administrative channels.
60
Case
Date
Citation
California University of Pa. v.
Schackner
August 22, 2017
168 A.3d 413
(Pa. Commw. Ct. 2017)
Request: All correspondence relating to the Vulcan Parking Garage sent or received by various
members of the agency for about a month.
Holding: Although the agency’s affidavits were too conclusory to meet either the exemptions it
argued or its claims of attorney-client privilege, the context of the claim of privilege and the
agency’s request for an in camera review demonstrate that an in camera review was necessary
here. Most claims before the OOR can be adjudicated on the basis of affidavit testimony, but in
camera review is a “practical necessity” in cases where the agency cannot demonstrate privilege
via attestation without revealing the contents of the exempt records.
Case
Date
Citation
Worcester Township v. Office
of Open Records
January 8, 2016
2016 Pa. Commw. LEXIS 40
(Pa. Commw. Ct. 2016)
History: The Court of Common Pleas reversed an OOR order that directed the Township to
produce, for in camera inspection, copies of records the Township withheld in response to a
request as well as an in camera inspection index, where the Township claimed the records were
exempt from disclosure under the attorney-client and work-product privileges and the
predecisional deliberative exception. The Court of Common Pleas also held that the OOR’s
interlocutory order was an appealable collateral order, over which the trial court had jurisdiction.
Holding: The Commonwealth Court affirmed the trial court’s determination that OOR’s
interlocutory order was an appealable collateral order. However, it reversed the trial court’s
determination that OOR’s appeals officer lacked authority to request in camera inspection of the
records at issue or an in camera inspection index or a “privilege log.” The Court deferred “to
OOR’s appeals officer, the initial fact-finder, on this procedural issue rather than second-guess his
attempt to adequately develop a record beyond the intertwined assertions of fact and law set forth
in the Township’s verified memorandum of law on issues such as the predecisional deliberative
exception.”
61
Case
Date
Citation
Pa. State Police v. ACLU
May 18, 2018
2018 Pa. Commw. Unpub.
LEXIS 275
(Pa. Commw. Ct. 2018)
Request: The social media policy governing official and investigative use of social media
platforms.
Holding: Where a sufficiently detailed affidavit establishes that records are exempt from
disclosure, in camera review should not be used, especially when the exemption invoked is not
related to the content of the record.
Case
Date
Citation
Pa. State Police v. ACLU
June 16, 2020
232 A.3d 654 (Pa. 2020)
Request: The social media policy governing official and investigative use of social media
platforms.
Holding: The OOR and reviewing courts have the competency to review records in camera to test
the adequacy or probity of an affidavit, and that procedure should be considered by an appeals
court, even if it ultimately finds that the evidence is meaningless. The triers of fact in an RTKL
case should not ignore valid affidavits but are not constrained to follow them in all cases.
Case
Date
Citation
PA State Police v. ACLU of
PA
August 22, 2023
300 A.3d 386 (Pa. 2023)
History: A continuation of the above cases, following the Commonwealth Court’s remand back
to the OOR to seek additional evidence which might demonstrate the exemptions cited by the
agency.
Holding: The court abuses its discretion when it remands a case for additional fact-finding after
determining that the party with the burden of proof failed to meet that burden.
62
Exemptions
Records are presumed to be public under the RTKL, but the RTKL contains thirty exemptions
which may permit an agency to redact or withhold records. The exemptions are found at 65 P.S.
§§ 67.708(b)(1)-(30), and are commonly referred to by number; e.g., (b)(17), the noncriminal
investigation exemption. Cases relevant to most exemptions are listed below, but note that not all
exemptions have been considered by an appellate court in Pennsylvania.
Financial Records
“Financial record” is a term of art referring to a specific sort of record identified in the RTKL.
These records deal with agency receipt or disbursement of public money, and most of the
exemptions do not apply to them or apply only in a limited way.
Case
Date
Citation
City of Harrisburg v. Prince
November 12, 2019
219 A.3d 602 (Pa. 2019)
Request: A spreadsheet showing donations to the City’s defense fund for an ordinance.
Holding: Section 708(b)(13) does not apply to financial records, which must be provided without
redaction even if they contain donor information. The definition of an “account, voucher or
contract dealing with the receipt or disbursement of funds” is a broad category which encompasses
many fiscal records.
Case
Date
Citation
Commonwealth and Pa.
Department of Public Welfare
v. Eiseman
October 27, 2015
125 A.3d 19 (Pa. 2015)
Request: The rates paid to managed care organizations for dental services in the southeast zone,
and the amounts paid by those organizations to provide dental services.
Holding: Financial records are broadly defined under the RTKL, and contracts controlling the
disbursement of public funds, even where they are not direct conduits between a government entity
and a contractor, may qualify. Furthermore, the RTKL’s trade secrets exemption supplants the
general Uniform Trade Secrets Act for the purposes of RTKL request.
63
Case
Date
Citation
Allegheny Cnty. Airport Auth.
v. Belko
September 21, 2023
2023 Pa. Commw. Unpub.
LEXIS 520
Request: Severance payments made by the Authority to prior employees.
Holding: Past public expenditures are no different than current public expenditures, such as
salaries, and there is no expectation of privacy in one’s receipt of public funds.
Date
Citation
August 15, 2023
304 A.3d 53 (Pa. Commw. Ct.
2023)
Request: A complete copy of the contract between Magellan and a County government
Holding: The contract must be disclosed in its entirety because it constitutes a financial record;
the fact that it contains material which may constitute trade secrets or proprietary information is
irrelevant because the RTKL does not permit those exemptions to apply to financial records.
64
708(b)(1) – Personal Security
This exemption covers information which could harm individuals if released.
Case
Date
Citation
Brown v. Pa. Department of
State
June 25, 2018
189 A.3d 1162
(Pa. Commw. Ct. 2018)
Request: License information, area of residence (city, county, etc.), and disciplinary history for
nine different health care professionals.
Holding: The possibility of retaliation against prison staff is a sufficient basis for the agency to
exempt information that is likely to identify the residence of medical personnel who work in
prisons.
Case
Date
Citation
State Employees’ Retirement
System (SERS) v.
Pennsylvanians for Union
Reform
March 20, 2015
113 A.3d 9
(Pa. Commw. Ct. 2015)
Request: Names and home addresses of retired state employees.
Holding: In order to claim that records are private pursuant to the personal security exemption,
the agency must show that disclosure creates a “reasonable likelihood of harm.” Additionally,
there is no right to a hearing at the OOR; and agencies must notify third parties to allow
participation.
Case
Date
Citation
Pa. Department of Corrections
v. Gardner
April 27, 2012
2012 Pa. Commw. Unpub.
LEXIS 300
(Pa. Commw. Ct. 2012)
Request: A list of all training [collectively, work-related training] given to a specified employee
by the Department of Corrections for two years.
65
Holding: The declaration submitted by the agency on appeal supported a finding that the work-
related training records were exempt under the personal security exemption. Citing to
Commonwealth v. Dugger, 486 A.2d 382, 384 (1985), the Court noted that “[a] prison setting
involves unique concerns and security risks.”
Case
Date
Citation
Pa. State Troopers
Association v. Scolforo
April 11, 2012
18 A.3d 435
(Pa. Commw. Ct. 2011)
Request: Forms that identify supplemental employment undertaken by state troopers.
Holding: When establishing a danger to personal safety, an agency must offer more than
speculation, even if the speculation is compelling. Furthermore, a release that would threaten
personal safety may become harmless after redactions under Section 708(b)(6) are performed.
Case
Date
Citation
Pa. Department of Revenue v.
Flemming
August 21, 2015
2015 Pa. Commw. Unpub.
LEXIS 626
(Pa. Commw. Ct. 2015)
Request: Data on retail agents and all purchased and winning tickets by game, by day and retailer,
for three years.
Holding: Meeting the personal safety exemption requires more than mere speculation, and the
information must be connected to a person or persons – simply listing the amount of money won
in past lottery events is not enough to identify a winner or endanger either players or retailers. To
establish a trade secrets exemption, an agency must show that there is relevant competition, and it
cannot do so by speculating that it competes with all retail markets.
66
Case
Date
Citation
Governor’s Office of
Administration v. Purcell
December 29, 2011
35 A.3d 811
(Pa. Commw. Ct. 2011)
Request: Names, job titles, hire dates, level of hire, employment status, salary, county and dates
of birth for all state employees.
Holding: When dealing with large numbers of employees, expert testimony may be the only way
to establish that a security issue applies to all of them. The exemption at Section 708(b)(1) protects
both physical and personal safety, and therefore the agency does not need to establish that the harm
suffered by release of records will be physical. The months and days of birth of employees may
be redacted under Section 708(b)(1) because of the threat of identity theft.
Case
Date
Citation
Delaware County v. Schaefer
March 20, 2012
44 A.3d 89
(Pa. Commw. Ct. 2012)
Request: The home addresses and dates of birth of all county employees.
Holding: Although Section 708(b)(6) does not include the dates of birth of non-minors, the
decision in Governor’s Office of Admin. v. Purcell was correct and is upheld by the en banc court.
However, where the County did not submit sufficient evidence to show a real risk to personal
safety, the case must be remanded to develop the record.
Case
Date
Citation
Commonwealth v.
Pennsylvanians for Union
Reform, Inc.
November 20, 2014
105 A.3d 61
(Pa. Commw. Ct. 2014)
Request: The counties of residence for 9,444 state employees.
Holding: The county of residence is not a necessary part of a home address and may be provided
even when a home address is otherwise exempt. Furthermore, when arguing that a safety-based
exemption applies, the agency must be able to show that the knowledge of a county alone creates
a risk of harm.
67
708(b)(2) – Public Safety
This exemption protects information which would endanger the safety of the public at large.
Case
Date
Citation
Carey v. Pa. Department of
Corrections
July 3, 2013
2013 Pa. Commw. Unpub.
LEXIS 495
(Pa. Commw. Ct. 2013)
(supplemental opinion to Jan.
24, 2013 opinion)
Request: Records of mass transfers of inmates to Michigan.
Holding: Conclusory assertions, such as “the release of records will likely cause substantial risk
of physical harm,” cannot form the basis for withholding records under the public security
exemption of the RTKL. The public safety exemption requires specific details.
Case
Date
Citation
Woods v. Office of Open
Records
June 10, 2010
998 A.2d 665
(Pa. Commw. Ct. 2010)
Request: The Board of Probation and Parole’s policy on sex offender supervision
Holding: The requester’s identity is not a relevant consideration, and the agency properly redacted
two sections of the record sought. The Board was entitled to redact information relating to strategic
procedures and practices which could enable sex offenders to resist or evade Board supervision.
68
Case
Date
Citation
Gregg Township v. Grove
June 25, 2018
2018 Pa. Commw. Unpub.
LEXIS 343
(Pa. Commw. Ct. 2018)
Request: Footage from security cameras in the Old Gregg School, which is used for municipal
offices.
Holding: In cases seeking video footage, the content of the video controls the application of the
exemption. The affidavit in this case was silent as to what is depicted on the requested camera
footage, and the affidavit referred generally to all the security cameras at the Old Gregg School
and did not explain why the disclosure of specific footage from one camera would jeopardize the
building’s security and the public safety. Finally, the affidavit did not explain how the Township
uses the cameras to enhance public and building safety and did not address whether any of the
information requested could be redacted. There was no explanation of how the exemption applied
in the affidavit, thus the Township did not meet its burden.
Case
Date
Citation
Adams v. Pa. State Police
August 31, 2012
51 A.3d 322
(Pa. Commw. Ct. 2012)
Request: Training material for state troopers related to confidential informants.
Holding: The agency proved that disclosure of these records would assist criminals in their efforts
to achieve a criminal objective and would substantially alter the police’s investigative process.
Case
Date
Citation
Wishnefsky v. Department of
Corrections
August 23, 2013
2013 Pa. Commw. Unpub.
LEXIS 652
(Pa. Commw. Ct. 2013)
Request: Policies and manuals related to the treatment of inguinal hernias.
Holding: Through the affidavit of a doctor, the agency met its burden of proving that disclosure
of the requested records would threaten its law enforcement/public protection activities because
69
inmates could use the information to fake illnesses and get themselves transferred to outside
medical facilities. The doctor’s affidavit was not required to include statistics or specific examples
of this possibility occurring.
Case
Date
Citation
Pa. Office of Attorney General
v. Mellon
October 23, 2023
307 A.3d 171 (Pa. Commw.
Ct. 2023)
Request: All investigative procedures from the Bureau of Narcotics
Holding: After a review in camera, the Court finds that the statements of policy being withheld in
full consisted of general principles, policy objectives and statements of law with which the public
is already familiar, and therefore it is unclear how release would affect public security. Although
the Office submitted an attestation by a competent officer, his general averments did not connect
the material withheld to the consequences warned of.
70
708(b)(3) – Danger to Infrastructure
Records which would disclose information that poses a threat to public infrastructure are exempt
from disclosure.
708(b)(4) – Computer Security
Certain records which would jeopardize computer security are exempt from disclosure.
708(b)(5) – Medical History
The medical history of an individual is exempt from disclosure.
71
708(b)(6) – Specified Personal Identification Information
Certain personal information, including personal financial information, is exempt from disclosure.
Case
Date
Citation
Pa. State System of Higher
Education (PASSHE) v. The
Fairness Center
March 30, 2016
2016 Pa. Commw. Unpub.
LEXIS 245
(Pa. Commw. Ct. 2016)
Request: Names, email addresses, titles and institutions of employment for PASSHE faculty and
coaches.
Holding: Email addresses that are not held out to the public or publicly accessible can be withheld
under Section 708(b)(6) but email addresses that are held out to the public must be disclosed.
Case
Date
Citation
Boyd v. Pa. Department of
Corrections
April 5, 2013
2013 Pa. Commw. Unpub.
LEXIS 275
(Pa. Commw. Ct. 2013)
Request: The full accounting of all monies garnered from the Requester’s own institutional
accounts at two separate State Correctional Institutions as the result of a misconduct while
imprisoned.
Holding: Records containing personal financial information, regardless of the Requester’s
identity, are exempt from release under the RTKL. Even when a Requester requests his/her own
information, the requested records may still be exempt under the personal information exemption.
Case
Date
Citation
Pa. Department of Public
Welfare v. Clofine
February 20, 2014
2014 Pa. Commw. Unpub.
LEXIS 108
(Pa. Commw. Ct. 2014)
Request: The phone numbers and names of Adams County income maintenance caseworkers, as
well as an email address.
72
Holding: Agency-issued email addresses and telephone numbers meet the definition of “personal
identification information” so long as they are personal to the employees to which they have been
assigned.
Case
Date
Citation
Pa. Department of
Conservation and Natural
Resources v. Office of Open
Records
May 24, 2010
1 A.3d 929
(Pa. Commw. Ct. 2010)
Request: Payroll records of third-party contractors who entered into contracts with the
Commonwealth for public projects.
Holding: Certified payroll records are financial records under the RTKL and are therefore not
subject to exemptions set forth in Section 708(b) of the RTKL. However, per Section 708(c) of the
RTKL, an agency may redact information from a financial record if protected under Section
708(b)(1), (2), (3), (4), (5), (6), (16), or (17). The Court found that the agencies acted reasonably
by producing the payroll records in redacted form to protect the personal nature of the financial
information contained in the records.
Case
Date
Citation
Allegheny County and A
Second Chance, Inc. v.
Parsons and WTAE-TV
January 14, 2013
61 A.3d 336
(Pa. Commw. Ct. 2013)
Request: Sought certain employee information (employee names, dates of birth and hire dates) of
private non-profit contractor that provided social services for the County related to the “kinship
care” foster care program.
Holding: Dates of birth are not categorically exempt under Section 708(b)(6)(i) as personal
identification information.
73
Case
Date
Citation
Pa. State Employees’
Retirement System (SERS) v.
Fultz
January 9, 2015
107 A.3d 860
(Pa. Commw. Ct. 2015)
Request: Sought names and home addresses of certain retirees.
Holding: Section 708(b)(6)(i)(C) of the RTKL exempts from disclosure not only the home
addresses of judges and law enforcement officers, but also other individuals who may reside at
those addresses. For the purposes of Section 708(b)(1)(ii), evidence that a subset of elderly
individuals are more susceptible to fraud, exploitation and theft due to cognitive impairment was
insufficient to prove that disclosure of the home addresses of superannuated retirees and their
beneficiaries presented a substantial and demonstrable risk to their safety as a class.
74
708(b)(7) – Employee Personnel Records
Certain specified information related to an agency’s employees is exempt from disclosure.
Case
Date
Citation
Pa. Department of Labor &
Industry v. Rudberg
December 8, 2011
32 A.3d 877
(Pa. Commw. Ct. 2011)
Request: Employment interview records and employee performance reviews (EPRs) relating to
unsuccessful applicants.
Holding: Generally, Section 708(b)(7) only exempts those EPRs that relate to an agency employee
and not those related to unsuccessful applicants for employment. However, EPRs relating to
unsuccessful applicants are not public records when those applicants are agency employees.
Case
Date
Citation
Johnson v. Pa. Convention
Center Authority
August 1, 2012
49 A.3d 920
(Pa. Commw. Ct.2012)
Request: Documents related to labor management agreement between the Pennsylvania
Convention Center Authority and the trade unions providing services at the Convention Center.
The records related to disputes between the trade unions over “work jurisdiction” and/or disputes
between various trade unions and the labor supplier over work assignments, among other things.
Holding: Section 708(b)(7) exempts information about individual agency employees, not labor
disputes. “Simply because ‘grievance material’ is mentioned in Section 708(b)(7), does not mean
that all grievance materials in every situation, including a union’s ‘jurisdictional grievance’ under
a labor management agreement is exempt. The Section is meant to protect information relating to
individual or personal grievances. The Section is not meant to exclude information pertaining to
union or policy-type grievances initiated by the union on behalf of workers which involve a
grievance over basic contract principles such as seniority, vacation, etc.” Where the records
requested do not disclose confidential employee records or material from a personnel file which
could be used to harm the employee or cause him embarrassment or humiliation, Section 708(b)(7)
does not apply.
75
Case
Date
Citation
Pa. Turnpike Commission v.
Murphy (Patriot News)
December 3, 2020
Request: Sought the name, positions and record of entry for all employees with E-ZPass
transponders who used the turnpike.
Holding: Records of electronic toll collection account holder information, including vehicle
movement records compiled from transactions with account holders, are exempt under 74 Pa.C.S.
§ 8117(d).
Case
Date
Citation
Highlands Sch. Dist. v.
Rittmeyer
December 3, 2020
2020 Pa. Commw. LEXIS 754
(Pa. Commw. Ct. 2020)
Request: The name of an employee who had been subject to a disciplinary absence
Holding: Section 708(b)(7)(v) applies to information contained in a personnel file even if that
information is freely available to the public in other contexts, where release of that information
would reveal otherwise-confidential disciplinary matters. Neither the Public School Code nor the
Sunshine Act mandate the public disclosure of all disciplinary records.
Case
Date
Citation
In re Melamed
December 19, 2022
2022 Pa. Commw. LEXIS 159
(Pa. Commw. Ct. 2022)
Request: Records reflecting police dismissals in 2020, including name and rank
Holding: Police dismissals are governed by the grievance process set forth in the Policemen and
Firemen Collective Bargaining Act, 43 P.S. § 217.1. Under this system, the police department’s
decision to dismiss an officer is not a “final action that … results in demotion or discharge” for
purposes of Section 708(b)(7) of the RTKL, as those actions are not final until an arbitrator rules
on them.
76
Case
Date
Citation
Fruchter v. Borough of
Malvern
October 6, 2023
495 C.D. 2022, 496 C.D.
2022; 2023 Pa. Commw.
LEXIS 156
Request: Documents referenced in a Retirement Agreement between the Borough and a police
sergeant, who was the subject of disciplinary proceedings
Holding: The decision to retire is not a discharge for the purposes of the RTKL, and a retirement
letter was not necessary to understand the contents of the retirement agreement.
77
708(b)(8) – Collective Bargaining Records
Records related to certain labor negotiation and collective bargaining are exempt from disclosure.
708(b)(9) – Drafts of Policy
Certain draft policies and regulations are exempt from disclosure.
78
708(b)(10) – Internal, Predecisional Deliberative Records
A record of deliberations between agency staff may be exempt from disclosure if it is predecisional
and internal.
Case
Date
Citation
Kaplin v. Lower Merion
Township
May 5, 2011
19 A.3d 1209
(Pa. Commw. Ct. 2011)
Request: Correspondence between members of the Township’s Board of Commissioners relating
to certain properties, a certain conditional use application, and certain recreational trails.
Holding: Communications between Township staff and the Board of Commissioners regarding
the logistics of issuing a decision were exempt under Section 708(b)(10)(i). The term
“deliberative” refers to the nature of the communications and is not limited to a delineated
deliberation period.
Case
Date
Citation
Office of the Governor v.
Davis
August 12, 2015
122 A.3d 1185
(Pa. Commw. Ct. 2015)
Request: Records relating to the agency’s consideration of a certain individual for the position of
Executive Director.
Holding: Once an agency has established that the attorney-client privilege was properly invoked,
the respondent bears the burden of proving waiver. A record produced by another government
agency can be internal to the agency in question for the purposes of Section 708(b)(10)(i) when
the record involves inter-agency deliberation.
79
Case
Date
Citation
McGowan v. Pa. Department
of Environmental Protection
September 11, 2014
103 A.3d 374
(Pa. Commw. Ct. 2014)
Request: Study data and correspondence related to the Department’s study of the Perkiomen
Creek Water Quality Standards Review.
Holding: To qualify for exemption under Section 708(b)(10), a record must be internal to the
agency and the agency must submit evidence of specific facts showing how the information relates
to deliberation of a particular decision. However, the predicational deliberation doesn’t necessarily
need to result in an official adjudication or agency decision to qualify for the exemption – it also
encompasses deliberation processes that merely contemplate or propose actions.
Case
Date
Citation
Finnerty v. Pa. Department of
Community & Economic
Development
April 25, 2019
2019 Pa. Commw. LEXIS 380
(Pa. Commw. Ct. 2019)
Request: Documents exchanged between the City of Chester, a municipal consultant, and several
subcontractors providing legal and accounting services.
Holding: Documents exchanged between an agency, contractors, and subcontractors may still be
considered internal to the agency for the purposes of Section 708(b)(10), because it best serves the
public interest to encourage government agencies to retain outside experts on various topics.
Case
Date
Citation
Payne v. Pa. Dep’t of Health
September 15, 2020
2020 Pa. LEXIS 700 (Pa.
2020)
Request: Scores given by the Department to applicants for marijuana grower permits
Holding: Scores alone do not demonstrate any deliberation among the agency’s employees.
Where an agency regularly releases a type of information, it cannot claim that information is
internal and confidential in other situations.
80
Case
Date
Citation
Philadelphia Public School
Notebook v. Philadelphia
School District
April 26, 2012
41 A.3d 976
(Pa. Commw. Ct. 2012)
Request: Full texts of proposed resolutions voted on during a public meeting.
Holding: Once an agency presents proposed resolutions to another agency – in this case, the
School Reform Commission – for vote at a public meeting, they cease to be internal to the agency,
even if they are not voted upon. Furthermore, when considering whether an appeal is moot under
the RTKL, the exceptions to the mootness doctrine must be considered.
Case
Date
Citation
Pa. Department of
Corrections v. Fiorillo
May 1, 2017
2017 Pa. Commw. Unpub.
LEXIS 305
(Pa. Commw. Ct. 2017)
Request: Communications pertaining to inmate health problems at SCI-Fayette, and the review of
inmate medical records.
Holding: Communication sent in formulating a press strategy may be exempt under Section
708(b)(10), although purely factual information must be disclosed. Even though this discussion
may come after the announcement of an agency’s official action, it is still prior to the agency’s
decision on how to handle the press response to that action.
Case
Date
Citation
Schackner v. Edinboro
University
April 27, 2020
2020 Pa. Commw. Unpub.
LEXIS 208
(Pa. Commw. Ct. 2020)
Request: Records of the University’s attendant care and disability services, as well as the service
coordinator.
Holding: Universities are empowered to conduct investigations under Title IX, and those
investigations may be exempt under Section 708(b)(17). An agency may exchange deliberative
81
information with contractors and withhold those records from production under (b)(10), but it may
not invoke (b)(10) to shield records of communication with those entities before they enter into a
contractual relationship. Records also may not be withheld under FERPA simply because they
may lead to loss of funds; the agency must establish that such a loss is likely. Finally, the OOR is
not obligated to seek an exemption log from a party, although such a log may be useful in complex
cases.
Case
Date
Citation
Public Utility Comm’n v.
Nase
September 8, 2023
No. 514 C.D. 2022, 2023 Pa.
Commw. LEXIS 140
Request: Records of internal communications about a water company represented by the
Requester.
Holding: The “notes and working papers” exemption covers materials retained solely for the
convenience of an individual official, not email communications. The records are also not exempt
simply because they show that deliberation occurred or privileged information was exchanged;
they must actually reflect that material.
82
708(b)(11) – Confidential Proprietary Information/Trade Secrets
Records that contain certain confidential information or trade secrets may be exempt.
Date
Citation
June 4, 2019
2019 Pa. Commw. LEXIS 528
(Pa. Commw. Ct. 2019)
Request: Applications for grower/processor and dispensary permits for medical marijuana.
Holding: When third parties seek to prove the confidential nature of submitted information or
trade secret status, they must show the steps taken to keep that information confidential.
Furthermore, the elements of the exemption are best established through expert testimony. Third
parties which have a full opportunity to submit this information to the OOR and fail to do so do
may not have a right to submit that information on appeal to the court. Finally, an agency is
responsible for determining how exemptions apply to records in that agency’s possession and is
not entitled to pass that job off to third parties.
Case
Date
Citation
Thirty, Inc. v. Gil Smart &
Lancaster Newspapers, Inc.
April 14, 2014
2014 Pa. Commw. Unpub.
LEXIS 235
(Pa. Commw. Ct. 2014)
Request: Tax records for all County hotels that paid the hotel tax/excise tax from 2007 to 2011.
Holding: The Requester waived its objection to the third party’s standing to appeal by failing to
raise the issue until its post-trial brief to the Court of Common Pleas. An objection to standing in
the RTKL must be raised “at the earliest opportunity.” The tax records were partially exempt under
Section 708(b)(11), as the third party proved that disclosure of certain financial information would
enable competitors to access privileged information, to the detriment of the individual hotels.
83
Case
Date
Citation
Broomall Operating Co., LP v.
Murray
December 14, 2018
2018 Pa. Commw. Unpub.
LEXIS 661
(Pa. Commw. Ct. 2018)
Request: Contacts, contracts and correspondence between a nursing home operator and the
Department of Health.
Holding: An affidavit demonstrating that a document is unique, or that it was created only for the
agency’s use, is not sufficient to support an exemption under Section 708(b)(11).
Case
Date
Citation
Smart Comm. Holdings v.
Wishnefsky
July 6, 2020
240 A.3d 1014
(Pa. Commw. Ct. 2020)
Request: Part of a contract to provide inmate mailing services.
Holding: Section 708(b)(11) does not apply to financial records under the RTKL, although not all
records attached to an agency contract are necessarily financial records.
Case
Date
Citation
Crouthamel v. Pa. Department
of Transportation
April 5, 2019
2019 Pa. Commw. Unpub.
LEXIS 335
(Pa. Commw. Ct. 2019)
Request: Records of work done on a specified project, including the gallons of tack coat and mix
design.
Holding: The attestations of a third party establishing competition, the proprietary nature of
techniques, importance to the third party’s business, and steps taken to ensure confidentiality were
sufficient to meet the agency’s burden of proof that the technical records sought were confidential.
84
Case
Date
Citation
Pa. Tpk. Comm’n v. Elec.
Transaction Consultants Corp.
April 29, 2020
230 A.3d 548
(Pa. Commw. Ct. 2020)
Request: Records of a bid submitted for a cashless tolling system.
Holding: The third party was denied due process when it was provided only a nominal amount of
time to participate before the OOR, and the OOR should have granted reconsideration. However,
a party may not recover attorneys’ fees against the requester unless that requester’s conduct is
“dilatory, obdurate, or vexatious.”
85
708(b)(12) – Notes and Working Papers
Personal notes and papers used by an agency official may be exempt.
Case
Date
Citation
City of Philadelphia v.
Philadelphia Inquirer
July 25, 2012
52 A.3d 456
(Pa. Commw. Ct. 2012)
Request: Copies of the Mayor and the City Council members’ daily schedules for more than a
year, including itineraries.
Holding: A record prepared by staff may be exempt as a note or working paper, absent wide
dissemination, as the exemption specifically covers both records created by a public official and
records that have been prepared for that official’s sole use by another party.
86
708(b)(13) – Donation Records
Records that reveal the identity of a donor to an agency may be exempt.
Case
Date
Citation
Municipality of Mt. Lebanon
v. Gillen
December 9, 2016
151 A.3d 722
(Pa. Commw. Ct. 2016)
Request: Communications regarding a program intended to use volunteer archers to thin deer
overpopulation.
Holding: A donation for the purposes of Section 708(b)(13) of the RTKL does not need to be
strictly monetary in nature; volunteers offering their property, time, or services may also qualify
for the exemption.
Case
Date
Citation
City of Harrisburg v. Prince
November 12, 2019
219 A.3d 602
(Pa. 2019)
Request: A spreadsheet showing donations to the City’s defense fund for an ordinance.
Holding: Section 708(b)(13) does not apply to financial records, which must be provided without
redaction even if they contain donor information. The definition of an “account, voucher or
contract dealing with the receipt or disbursement of funds” is a broad category which encompasses
many fiscal records.
Case
Date
Citation
California University of Pa.
v. Bradshaw
October 13, 2021
149 CD 2018
(Pa. Commw. Ct. 2021)
Request: Records related to donations between Manheim Corporation and a university fund.
Holding: Because the law was settled that the University needed to contact its foundation to
perform a search, the failure to do so constituted unreasonable bad faith.
87
708(b)(14) – Unpublished Academic Papers
Academic papers, including articles and lecture notes, may be exempt from disclosure prior to
publication.
708(b)(15) – Academic Transcripts
Academic transcripts and test papers may be exempt from disclosure.
88
708(b)(16) – Criminal Investigative Records
Certain records related to a criminal investigation are exempt from disclosure; if the matter
involves a local law enforcement agency, an appeal of this exemption may be heard by a District
Attorney’s Office.
Case
Date
Citation
Arroyo v. Lancaster County
District Attorney’s Office
June 29, 2011
2011 Pa. Commw. Unpub.
LEXIS 513
(Pa. Commw. Ct. 2011)
Request: Discovery related records to a criminal case.
Holding: Documents created a result of the performance of an inquiry into a criminal incident are
considered investigative information, which is exempt. The fact that these records are later used
in a criminal prosecution does not make them public under the RTKL.
Case
Date
Citation
Levy v. Senate of Pa.
June 16, 2014
94 A.3d 436
(Pa. Commw. Ct. 2014)
Request: Bills, contracts and payment records relating to the hiring of any outside lawyer or law
firm to represent a specified Senator and any current or former employee of a specified caucus
beginning January 1, 2009.
Holding: A record may not be withheld under (b)(16) simply because it tangentially relates to a
criminal investigation allegedly conducted by a different agency; an agency must demonstrate how
the material itself was created or obtained pursuant to the agency’s own investigation.
Case
Date
Citation
Coley v. Philadelphia District
Attorney’s Office
October 7, 2013
77 A.3d 694
(Pa. Commw. Ct. 2013)
Request: Copies of an immunity petition and witness statements.
89
Holding: The fact that a requester may have a right to records as Brady evidence has no bearing
on the accessibility of those records through the RTKL. Witness statements made to law
enforcement are exempt under Section 708(b)(16), as well as CHRIA, but immunity petitions may
not be, depending upon the contents of the document.
Case
Date
Citation
Pa. State Police v. Grove
June 20, 2017
161 A.3d 877 (Pa. 2017)
Request: Sought, in relevant part, any video/audio recordings taken by the officers at the scene of
a two-vehicle accident in Potter Township, Centre County, Pennsylvania.
Holding: Noncriminal investigatory information could be redacted from the vehicle’s camera
records requested. Video components of State Police recordings were not criminal investigative
records exempt from disclosure under Section 708(b)(16) of the RTKL or the Criminal History
Record Information Act because, after determining the exemption on a case-by-case basis and
redacting audio portions of the recordings, they only showed what a bystander would see. (Note:
this case preceded the enactment of 42 Pa.C.S. § 67A03, which removes police vehicle camera
footage from access through the RTKL.)
Case
Date
Citation
Pa. State Police v. Zloczower
October 4, 2011
2011 Pa. Commw. Unpub.
LEXIS 822
(Pa. Commw. Ct. 2011)
Request: A variety of police records, including records of charges and arrests.
Holding: Filed charges are not subject to the exemption in Section 708(b)(16). For Section
708(b)(16) to apply, a record must be compiled and maintained in conjunction with an underlying
investigation. Section 708(b)(16) does not apply to chronological listing of arrests including the
name and address of the individual charged (commonly known as “police blotters”).
90
Case
Date
Citation
Pottstown Borough v. Suber-
Aponte
January 8, 2019
2021 A.3d 173
(Pa. Commw. Ct. 2019)
Request: Footage from the security cameras at a police department for one day.
Holding: The Borough did not demonstrate that the camera footage was created for, or primarily
for, the investigation of any criminal matter, nor did it provide specific information that would
justify withholding the records on grounds of public safety. Although the Borough did show that
some camera footage captured some criminal matters, those records could have been redacted from
the remainder of the footage. (Note: this case preceded the enactment of 42 Pa.C.S. § 67A03, which
removes police vehicle camera footage from access through the RTKL.)
Case
Date
Citation
Cafoncelli v. Pa. State Police
June 5, 2017
2017 Pa. Commw. Unpub.
LEXIS 405
(Pa. Commw. Ct. 2017)
Request: Police reports, photographs, interviews or any other information that the agency might
have regarding a double murder in 1966.
Holding: The Requester was the grandson of the victims, an investigative reporter, and correctly
noted that all parties in interest to the investigation were deceased. Nevertheless, the Report
contained investigative materials, notes, correspondence and reports, which, if disclosed, would
reveal the institution, progress or result of a criminal investigation. The RTKL does not provide
an expiration date for exemptions, and neither the OOR nor a reviewing court may override an
exemption on grounds of public policy.
Case
Date
Citation
Galloway v. Pa. Office of
Attorney General
February 12, 2013
63 A.3d 485
(Pa. Commw. Ct. 2013)
Request: Reimbursements made by the Attorney General’s Office concerning the relocation of a
witness related to a criminal proceeding.
91
Holding: Information, such as expenditures, related to the relocation of a witness through a
witness protection program of a law enforcement agency is exempt from disclosure under the
RTKL, Section 708(b)(16)(vi)(E).
Case
Date
Citation
Pa. State Police v. Kim
November 17, 2016
150 A.3d 155
(Pa. Commw. Ct. 2016)
Request: Surveillance footage of a specified vehicular accident.
Holding: Although the video constituted routine surveillance footage recorded by a private party,
the footage was seized by the police, entered into evidence and used to determine whether a
criminal offense had occurred. Therefore, it was related to a criminal investigation and thus,
exempt from disclosure. The video was also exempt under the Criminal History Record
Information Act because it was “assembled” as part of a criminal investigation.
Case
Date
Citation
DiMartino v. Pa. State Police
September 19, 2011
2011 Pa. Commw. Unpub.
LEXIS 787
(Pa. Commw. Ct. 2011)
Request: Documents related to a death, including the cause of death, toxicology, pharmacology
and supplemental or amended autopsy reports.
Holding: A police report related to the death was exempt under both the Criminal History Records
Information Act and Section 708(b)(16) because it related to an investigation of that death, and the
language of the exemption is clear enough that a court does not need to try to interpret legislative
intent. Furthermore, the fact that a requester is the family of a decedent is not relevant to
determining their right to access information under the RTKL.
92
Case
Date
Citation
Collazo v. Pa. State Police
May 17, 2017
2017 Pa. Commw. Unpub.
LEXIS 350
(Pa. Commw. Ct. 2017),
appeal denied, 174 A.3d 564
Request: All surveillance footage from an incident at Mt. Airy Casino, as well as documents
related to identified individuals.
Holding: Whether or not the video footage was produced for the purpose of investigation, it was
acquired by the agency for the purpose of conducting an investigation into potential criminal
conduct, and was therefore facially exempt under Section 708(b)(16).
Case
Date
Citation
Anand v. Pa. Office of
Attorney General
November 20, 2023
2023 Pa. Commw. Unpub.
LEXIS 628 (Pa. Commw. Ct.
2023)
Request: Records of investigations sent by various health companies to the Attorney General’s
office
Holding: The office demonstrated that the responsive records relate to investigations and contain
various exempt materials, and the Requester failed to show that the records of third parties relate
to a core governmental function and therefore become agency records simply because an agency
conducts an investigation based on that company’s submissions.
93
708(b)(17) – Noncriminal Investigative Records
Certain records relating to an agency investigation which does not involve a crime are exempt
from disclosure.
Case
Date
Citation
Pa. Department of Public
Welfare v. Chawaga
March 13, 2014
91 A.3d 257
(Pa. Commw. Ct. 2014)
Request: A performance audit report.
Holding: The report was not exempt from disclosure under Section 708(b)(17) of the RTKL
because it was not a part of a “systematic or searching inquiry,” “detailed examination,” or “official
probe.” To qualify for the exemption, the investigation must be done pursuant to an agency’s
statutory authority and conducted as part of the agency’s regular duties.
Case
Date
Citation
Mahl v. Springfield Township
January 11, 2012
2012 Pa. Commw. Unpub.
LEXIS 36
(Pa. Commw. Ct. 2012)
Request: All records relating to the Requester and a zoning issue, including communications
between Township officials, neighbors, and anyone else concerning the Requester and his zoning
appeal.
Holding: Requester was not entitled to demand the name of the complainant alleging zoning
violations on the Requester’s property or the content of that complaint, and the Court concluded
that the non-criminal investigation exception is not limited to active investigations.
Case
Date
Citation
Port Authority of Allegheny
County v. Towne
September 12, 2017
174 A.3d 1167
(Pa. Commw. Ct. 2017)
Request: All video recordings from a bus running a specified route.
94
Holding: Where an agency creates and downloads videos for no purpose other than a noncriminal
investigation, those videos are sufficiently related to the investigation to be exempt under Section
708(b)(17) even when they are ultimately inconclusive.
Case
Date
Citation
Brown v. Pa. Office of
Inspector General
October 27, 2017
178 A.3d 975
(Pa. Commw. Ct. 2017)
Request: Letters reporting abuse or harassment from prisoners and documents reflecting the
Inspector General’s disposition of the complaints, and a related policy.
Holding: Section 708(b)(17) exempts complaints made to an agency, but only when those
complaints relate to a subject which the agency actually did investigate. Therefore, the agency
must demonstrate that such an investigation did occur.
Case
Date
Citation
Heavens v. Pa. Department of
Environmental Protection
April 9, 2013
65 A.3d 1069
(Pa. Commw. Ct. 2013)
Request: Records of an investigation into an accident at a gas well.
Holding: Where an agency seeks to prove that records are related to a noncriminal investigation,
it is the agency’s burden to show that the records do not fall into the exception to the exemption.
Case
Date
Citation
Lackawanna County
Government Study
Commission v. Scranton
Times, L.P.
November 20, 2015
2015 Pa. Commw. Unpub.
LEXIS 858
(Pa. Commw. Ct. 2015)
Request: Unredacted copies of three emails from the materials gathered by an agency investigator.
Holding: The agency’s authority was to study the County’s existing home rule charter form of
government, compared to alternatives, and give an evaluation of ways to improve the current
95
county government. The Court found no authority to conduct investigations, and therefore the
study could not be exempt under Section 708(b)(17) of the RTKL.
Case
Date
Citation
Brown v. Pa. Department of
State
September 2, 2015
123 A.3d 801
(Pa. Commw. Ct. 2015)
Request: Letters to physicians, disclosing the final outcome of the investigations of complaints
filed with the State Board of Medicine and the State Board of Osteopathic Medicine.
Holding: The agency properly demonstrated that the records are exempt under Section 708(b)(17)
of the RTKL where the agency was able to prove that the records sought were the products of an
official investigation.
Case
Date
Citation
Pa. Department of
Environmental Protection v.
Delaware Riverkeeper
Network
April 10, 2015
113 A.3d 869
(Pa. Commw. Ct. 2015)
Request: Sample data underlying the Technologically Enhanced Naturally Occurring Radioactive
Material Study.
Holding: Because the agency was empowered to “monitor, control and regulate radiation sources”
and it conducted a full and systematic study to produce its report, the study data underlying that
report is exempt as related to a noncriminal investigation.
Case
Date
Citation
Stein v. Plymouth Township
April 26, 2010
994 A.2d 1179
(Pa. Commw. Ct. 2010)
Request: Records relating to a zoning enforcement proceeding initiated by the Township,
including written correspondence, memoranda, notes and materials that would identify the name
of the complainant.
96
Holding: Complaints submitted to an agency are exempt from disclosure even if those complaints
are not what ultimately cause an agency to launch an official investigation. Likewise, all
information found within the complaint, including the identity of the complainant, is exempt.
Case
Date
Citation
Black v. Pa. State Police
November 23, 2016
2016 Pa. Commw. Unpub.
LEXIS 809
(Pa. Commw. Ct. 2016)
Request: Sought complaints regarding an identified ex-trooper.
Holding: An agency regulation establishing that all complaints must be investigated, along with
an attestation establishing that all complaints are investigated and explaining the process of
investigation, is sufficient to establish that the complaints are exempt under Section 708(b)(17) of
the RTKL. The agency does not need to submit evidence as to every individual investigation.
Case
Date
Citation
Pa. Public Utility Commission
v. Gilbert and The Wall Street
Journal
March 27, 2012
40 A.3d 755
(Pa. Commw. Ct. 2012)
Request: Copies of certain records related to probable violations identified by the agency
including a description of the probable violation, when and where it was identified, the entity
faulted, descriptions concerning probable violations; a list of records related to pipeline safety that
operators are required to keep and that the agency inspects; pipeline incidents reported by
operators, including the name of the operator, whether there was an explosion, the dollar amount
of damage, the cause of the accident, pipe specifications and the type of corrosion; copies of
communications between pipeline owners and operators.
Holding: Records of the Public Utility Commission are not made public by action of the Public
Utility Code until and unless they form the basis for an agency action. Although the agency did
not submit detailed factual evidence, the records are facially exempt under Section 708(b)(17)
because they seek only investigative materials which could not fall into the exception to the
exemption.
97
Case
Date
Citation
Pa. Department of Labor &
Industry v. Darlington
June 10, 2020
234 A.3d 865 (Pa. Commw.
Ct. 2020)
Request: Records and inspection papers relating to a boiler explosion.
Holding: Routine boiler inspections are not exempt under Section 708(b)(17) because the
language of the statute differentiates between inspections and investigations, the statute permits
inspection by certified third parties rather than agents of the Department of Labor & Industry, the
agency did not show that the routine inspections involved the kind of comprehensive inspections
which occurred in prior cases, and because there was no apparent public policy which justifies
withholding the documents.
Case
Date
Citation
Coulter v. Pa. Department of
Public Welfare
April 18, 2013
65 A.3d 1085
(Pa. Commw. Ct. 2013)
Request: Names of the investigator(s), the notes of their investigations, internal correspondence
and correspondence with the Butler County Children and Youth Services, and the various versions
of the reports produced as a result of these investigations.
Holding: The Request itself sought records produced as a result of a “noncriminal investigation.”
Any responsive records were therefore exempt from disclosure under Section 708(b)(17).
Case
Date
Citation
Johnson v. Pa. Convention
Center Authority
August 1, 2012
49 A.3d 920
(Pa. Commw. Ct.2012)
Request: Records related to a labor management agreement between the agency and the trade
unions providing services at the convention center. The records related to disputes between the
trade unions over “work jurisdiction” and disputes between various trade unions and the labor
supplier over work assignments, among other things.
Holding: The information requested pertained to disputes between the agency and its labor unions
which arose out of labor management agreements, which include specific procedures for “dispute
98
resolution” between the parties. As such, the agency’s “investigation” of allegations related to the
agreement did not equate to the type of investigation conducted under Section 708(b)(17) of the
RTKL. Notice of a dispute under the labor services agreements was not the equivalent of a
“complaint submitted to an agency” under Section 708(b)(17). Such “notice” did not invoke the
agency’s legislatively-granted fact-finding and investigative powers and it does not involve the
agency’s “official duties.” Instead, the agency acted solely in the context of its status as a party to
the agreements, and pursuant to the procedures outlined in them.
Case
Date
Citation
Coulter v. Pa. Board of
Probation & Parole
June 14, 2012
48 A.3d 516
(Pa. Commw. Ct. 2012)
Request: “Home plan” records that the Requester had submitted to Board agents related to
investigation of residences at which she sought to live.
Holding: Home plans are facially records of a noncriminal investigation to determine whether a
probationer or parolee’s desired residence is appropriate.
Case
Date
Citation
Dep’t of Health v. Capouillez
November 16, 2022
2022 Pa. Commw. Unpub.
LEXIS 494 (Pa. Commw. Ct.
2022)
Request: Records related to compliance measures for COVID-19 in certain fitness centers
Holding: For a testimonial affidavit to suffice under either the Disease Protection and Control
Law or Section 708(b)(17) of the RTKL, it must show both what the agency’s duties are and how
the records relate to those duties in such a way that they justify exemption. It is not sufficient to
simply establish the existence of an investigation and then name the documents.
99
708(b)(18) – Emergency Dispatch Records
Certain records related to emergency dispatches are exempt from disclosure.
Case
Date
Citation
York County v. Czech
February 16, 2011
13 A.3d 594
(Pa. Commw. Ct. 2011)
Request: Copies of “time response logs from York County 911 … with addresses included, i.e.,
where the units dispatched were headed.”
Holding: The term “time response logs” as used in Section 708(b)(18) of the RTKL includes
destination addresses or cross-street information.
100
708(b)(19) – DNA & RNA Records
RNA and DNA records are exempt from disclosure.
101
708(b)(20) – Autopsy Records
Records of autopsy and postmortem examinations may be exempt.
Case
Date
Citation
Hearst Television, Inc. v.
Norris
October 17, 2012
54 A.3d 23 (Pa. 2012)
History: Requester filed a request with the Coroner of Cumberland County, requesting the manner
of death. The OOR held that, because the Coroner’s statute expressly provided for an annual
disclosure, it conflicted with the contemporaneous disclosure procedures under the RTKL.
Holding: Under Section 1236.1(c) of the Coroner’s Act, 16 P.S. § 1236.1(c), and the RTKL, 65
P.S. §§ 67.101-67.3104, the Coroner’s record indicating the manner of death was immediately
available to Requester. Since the Coroner’s Act provides an expedited process for individuals who
seek records outside of the annual disclosure, the RTKL was not in conflict and the records could
be immediately ordered available for production.
Case
Date
Citation
Allegheny Cnty. v. Hailer
July 11, 2023
298 A.3d 476 (Pa. Commw.
Ct. 2023)
Request: Autopsy and toxicology reports.
Holding: The Coroner’s Act grants access to certain records in exchange for established fees, and
the 2018 update does not limit that access to “nongovernmental agencies.”
Case
Date
Citation
Chester County Office of the
Coroner v. Keel
December 7, 2023
2023 Pa. Commw. Unpub.
LEXIS 659 (Pa. Commw. Ct.
2023)
Request: Toxicology and other reports for 17 identified decedents
102
Holding: The Coroner’s Act requires that official records be provided upon payment of the
specified fees, and they are not subject to exemption under Section 708(b) of the RTKL.
103
708(b)(21) – Draft Meeting Minutes
Draft minutes are exempt from disclosure until the agency’s next regularly scheduled meeting.
708(b)(22) – Property Acquisition Records
Certain records related to real estate, including appraisals, are exempt from disclosure.
708(b)(23) – Library Records
Library circulation and order records of individuals and groups are exempt from disclosure.
708(b)(24) – Conditional Donor Records
Limitations imposed by donors on library and museum materials may be exempt from disclosure.
708(b)(25) – Endangered Site Records
The locations of archeological sites or habitats of endangered plants and animals may be exempt
from disclosure.
104
708(b)(26) – Procurement Proposals
Proposals relating to agency procurement may be exempt.
Case
Date
Citation
Global Tel*Link Corp. v.
Wright and Prison Legal News
September 22, 2016
147 A.3d 978
(Pa. Commw. Ct. 2016)
Request: Records pertaining to contracts with outside vendors for inmate telephone service, video
visitation services, electronic services, commissary services, prisoner services and book ordering
services.
Holding: Financial information which is requested in an invitation for a bid or request for
proposals to demonstrate the bidder’s economic capability is facially exempt under Section
708(b)(26). Furthermore, while those materials may be administratively appended to a contract,
they are not necessarily “part” of that contract, and therefore a financial record, especially where
they do not involve any agency disbursements.
Case
Date
Citation
Greco v. Pa. Department of
General Services
July 10, 2017
2017 Pa. Commw. Unpub.
LEXIS 485
(Pa. Commw. Ct. 2017)
Request: All bids submitted for an identified SFP and the best and final offers that were submitted.
Holding: In evaluating the exception to the mootness doctrine, a tribunal must determine whether
an issue is capable of repetition yet evading review. Although the issue of whether a document
constitutes a public record can never escape review, a document under Section 708(b)(26) can
transition from exempt to public record depending on contract timing, and therefore issues
involving that section may fall into the exception to the mootness doctrine.
105
708(b)(27) – Insurance Communications
Certain communications between an agency and its insurance carrier are exempt from disclosure.
106
708(b)(28) – Social Services Information
Certain records relating to the provision of social services are exempt.
Case
Date
Citation
Commonwealth v. Simpson
August 30, 2016
151 A.3d 678
(Pa. Commw. Ct. 2016)
Request: The names and addresses of individuals who filed workers compensation claims on or
after January 1, 2014, date of injury, claim number, and name and address of workers’
compensation carrier.
Holding: The requested information is exempt under Section 708(b)(28), and therefore not a
public record, which makes the requested records exempt from disclosure in their entirety. The
agency is not required to redact records found to be exempt under Section 708(b)(28).
Case
Date
Citation
Pa. Department of Human
Services v. Pennsylvanians for
Union Reform
February 8, 2017
154 A.3d 431
(Pa. Commw. Ct. 2017)
Request: The names and addresses of all direct care workers who have been paid through a Home
Care Service Program in the past three months.
Holding: Because the intended beneficiaries under Section 708(b)(28) are the recipients of social
services, the phrase “an individual’s caregiver” applies only to the extent that a document would
demonstrate the relationship between a caregiver and a recipient. However, the addresses of
caregivers may still be exempt under the right to privacy.
Case
Date
Citation
Clark v. Pa. Department of
Labor & Industry
December 7, 2012
2012 Pa. Commw. Unpub.
LEXIS 946
(Pa. Commw. Ct. 2012)
107
Request: Records showing the names and identities of employers and claimants in unemployment
compensation hearings.
Holding: Both Labor & Industry regulations and the RTKL permit the Department to withhold
the identities of parties to unemployment compensation proceedings. Because the records are not
public, they do not require redaction.
108
708(b)(29) – Constituent Service Requests
Certain correspondence between members of the General Assembly and constituents is exempt
from disclosure.
109
708(b)(30) – Information About Minor Children
The names, home addresses, and dates of birth of minors are exempt from disclosure.
110
Attorney-Client Privilege
Certain communications between an attorney and their client are exempt from disclosure.
Case
Date
Citation
Milford Township Board. of
Supervisors v. McGogney
January 6, 2011
13 A.3d 569
(Pa. Commw. Ct. 2011)
Request: Invoices which pertained to work conducted by the township’s solicitor regarding the
township board’s efforts to shut down a show club.
Holding: Attorney-client privilege belongs to the client. The Agency Open Records Officer does
not have the power to breach that privilege without the consent of the client. Here, the client is the
Board, so the waiver of the attorney-client privilege may only be done by the Board.
Case
Date
Citation
Levy v Senate of Pa.
June 16, 2014
94 A.3d 436
(Pa. Commw. Ct. 2014)
Request: All bills, contracts and payment records relating to the hiring of any outside lawyer or
law firm to represent a specified Senator and any current or former employee of a specified caucus
beginning January 1, 2009.
Holding: General descriptions of legal services, as are often found on invoices, are not privileged;
they simply explain the services provided and justify the charges rendered.
Case
Date
Citation
Bagwell v. Pa. Department of
Education
October 31, 2014
103 A.3d 409
(Pa. Commw. Ct. 2014)
Request: Records sent to the Department Secretary and his assistant by counsel and board
members of Pennsylvania State University.
111
Holding: Documents containing attorneys’ mental impressions are protected by the attorney-work
product doctrine, regardless of whether they are made in the context of litigation. Pennsylvania
courts have not adopted subject matter waiver, and where it is recognized, it only applies where
the parties are adversaries in litigation. The burden of proof is on the party alleging waiver.
Case
Date
Citation
City of Pittsburgh v. Silver
August 16, 2012
50 A.3d 296
(Pa. Commw. Ct. 2012)
Request: The contents of an assistant solicitor’s file in a specified settlement negotiation.
Holding: Because the Supreme Court of Pennsylvania has exclusive jurisdiction to regulate an
attorney’s representation of clients, the RTKL does not give the OOR jurisdiction to release
records related to a solicitor’s representation in a settlement.
Case
Date
Citation
Pa. Public Utility Commission
v. Sunrise Energy, LLC
January 12, 2018
177 A.3d 438
(Pa. Commw. Ct. 2018)
Request: All emails and correspondence between the agency staff and First Energy Corporation
(First Energy) regarding the case of Sunrise Energy, LLC v. First Energy Corporation (Pa.
Commw., No. 1282 C.D. 2015, October 14, 2016), from 2015-2016.
Holding: The agency argued that the emails and correspondence were protected because they
related to the agency’s submission of an amicus brief on behalf of First Energy, and that they were
prepared in anticipation of litigation. Further, the agency contended that the Requester lacked
standing to bring the appeal because Sunrise was not named in the original request, and that the
issue should be resolved before the Court of Common Pleas as a discovery issue, rather than by
the OOR. The Court remanded the appeal to the OOR to conduct an in camera review of the
records to determine whether the agency or First Energy were the privilege holders, and the Court
found that standing existed because the requester indicated on appeal that his request was made on
the behalf of the Appellee.
112
Case
Date
Citation
Commonwealth v. Center
Township
June 24, 2014
95 A.3d 354
(Pa. Commw. Ct. 2014)
History: The OOR directed the agency to provide a privilege log identifying each record withheld
and explaining why a privilege applies to each redacted entry. The agency did not provide the
OOR with a privilege log, instead asserting that the OOR is without authority or jurisdiction to
make such a demand. Upon reviewing the record, the OOR determined that it could not properly
adjudicate the dispute without assessing the records because there was no substantial evidence
concerning the contents and description of the litigation services. The OOR granted Requester’s
request for in camera review and directed the agency to produce for in camera inspection
unredacted copies of all responsive records that the Township withheld. The agency did not
comply, asserting that the OOR lacks statutory authority to compel and undertake an in camera
review. The agency also argued that the OOR does not possess subject matter jurisdiction to review
the documents and determine whether they are covered by the asserted privileges.
Holding: The OOR possesses subject matter jurisdiction to apply the provisions of the RTKL and
decide whether a request falls within the ambit of the attorney-client privilege, the work-product
doctrine, and/or the ethics-based rule of confidentiality. Further, the OOR’s power to conduct and
require an in camera review is implied in the RTKL.
Case
Date
Citation
Rittenhouse v. Lower Milford
Township Board of Supervisors
April 5, 2012
41 A.3d 975, 2012 Pa.
Commw. Unpub. LEXIS 248
(Pa. Commw. Ct. 2012)
Request: Records related to asbestos at a proposed quarry.
Holding: Work product privilege extends to the product of an attorney’s representative, which in
this case was a report prepared by the Township’s consultant hydrogeologist for litigation.
Disclosure of a document protected by a privilege, which is not a public record, does not convert
the document into a public record.
113
Case
Date
Citation
Pa. Department of Education
v. Bagwell
April 16, 2015
114 A.3d 1113
(Pa. Commw. Ct. 2015)
Request: Emails between counsel and the former Secretary of the Department.
Holding: The certified record must include all evidence accepted and considered by the appeals
officer. In camera review is insufficient to evaluate a waiver challenge involving the attorney-
client privilege; the challenger must be afforded an opportunity to present supporting evidence,
especially where proof has been proffered.
Case
Date
Citation
Dages v. Carbon County
March 20, 2012
44 A.3d 89
(Pa. Commw. Ct. 2012)
Request: “Case law” referred to by a county commissioner as authorizing an economic
development project.
Holding: A claim of attorney-client or attorney work-product privilege may be demonstrated
through affidavit testimony and covers both a client’s request for legal advice and an attorney’s
provision of the same.
114
Confidentiality Laws
Other state and federal laws, or agency regulations, may render a record exempt from disclosure.
Other Laws Generally
Case
Date
Citation
Pa. Department of Labor &
Industry v. Heltzel
May 5, 2014
90 A.3d 823
(Pa. Commw. Ct. 2014)
Request: Pennsylvania’s Tier II hazardous chemicals inventory.
Holding: The OOR has the authority to interpret state and federal statutes that involve public
access to agency information as part of the appeals process, because it must determine whether
other laws block or effectuate access to records under the RTKL.
Case
Date
Citation
Pennsylvanians for Union
Reform v. Pa. Department of
State
May 23, 2016
138 A.3d 727
(Pa. Commw. Ct. 2016)
Request: Voter registration and candidate information of individuals with specified first names,
including address and date of birth.
Holding: The Voter Registration Act, 25 Pa.C.S. §§ 1101-1906, and the regulations of the
Department of State governed the accessibility of the voter registration information requested, and
the RTKL did not apply since access to the records was otherwise provided by law.
115
Case
Date
Citation
Pa. Department of Health v.
McKelvey
September 27, 2018
2018 Pa. Commw. Unpub.
LEXIS 520
(Pa. Commw. Ct. 2018)
Request: The names, job titles and departments of the panel that is reviewing and scoring
applications for grower/processor and dispensary permits under the medical marijuana program.
Holding: The agency denied the Request, stating that the requested information is exempt from
disclosure under Pennsylvania regulations governing the medical marijuana program and that
disclosure would threaten the personal security of the panel members. The Commonwealth Court
held (1) that the agency regulations should be interpreted as written when the request was made,
when the regulations did not affect procedural matters and were not expressly retroactive, and (2)
the agency did not set forth clear evidence that the sought material would be exempt under Section
708(b)(1). The agency’s interpretation of its regulation was not entitled to deference, and the
regulation did not prohibit public disclosure under the RTKL, it merely prohibited disclosure to
applicants in the agency’s program.
Case
Date
Citation
Feldman v. Pa. Commission on
Crime & Delinquency
April 18, 2019
208 A.3d 167
(Pa. Commw. Ct. 2019)
Request: Lists of individuals whose applications for victim compensation benefits were denied.
Holding: Section 709 of the Crime Victims Act prohibits disclosure of any information obtained
by the Commission on Crime & Delinquency during the processing of a claim. As such, no data
from those claims may be provided in any form, even in aggregate.
Case
Date
Citation
Pa. Pub. Util. Comm’n. v.
Friedman
April 18, 2019
2020 Pa. Commw. LEXIS 788
(Pa. Commw. Ct.)
Request: Calculations showing blast radius for HVL pipelines.
116
Holding: When an agency denies a request for records under the Confidential Security
Information Act, the requester must challenge the designation of records as CSI with the agency
administering the statute rather than the OOR.
Case
Date
Citation
Pennsylvanians for Union
Reform v. Governor’s Office
of Administration
December 18, 2015
129 A.3d 1246
(Pa. Commw. Ct. 2015)
Request: Records of all union political action committee contributions processed by agency
payroll deduction for three months for thirty employees.
Holding: An agency is permitted to demonstrate that a record is exempt from disclosure as a matter
of law without first confirming the existence of that record where information regarding the
existence of the record is itself exempt. Furthermore, the Election Code and the First Amendment
to the United States Constitution protect an individual’s rights to political association and prevent
the government from disclosing some political donations.
Case
Date
Citation
Ali v. Philadelphia City
Planning Commission
October 1, 2015
125 A.3d 92
(Pa. Commw. Ct. 2015)
History: The OOR refused to order the Philadelphia City Planning Commission to provide the
requester with unredacted copies of records which contained information that the Commission
deemed protected under Section 106 of the federal Copyright Act.
Holding: Federal copyright law does not exempt records but may limit distribution. The Copyright
Act neither makes copyrighted material private or confidential, nor does it expressly preclude a
government agency, lawfully in possession of the copyrighted material, from disclosing that
material to the public. When an agency determines that material is copyrighted, the agency is
entitled to limit a requester’s review to inspection and is not required to seek out the copyright
owner’s approval for duplication or to conduct a fair use analysis.
117
Case
Date
Citation
Perez v. Stedman
July 12, 2017
2017 Pa. Commw. Unpub.
LEXIS 501
(Pa. Commw. Ct. 2017)
Request: Tapes and tape-recorded conversations connected to two criminal cases brought against
the requester.
Holding: A law enforcement agency does not waive an exemption under the RTKL by using
records as evidence in a criminal trial where disclosure of the records is prohibited by law.
Furthermore, while agencies may waive exemptions under the RTKL and provide records, they
cannot waive confidentiality statutes.
Case
Date
Citation
Pa. Public Utility Commission
v. Seder
May 25, 2016
139 A.3d 165 (Pa. 2016)
Request: A “tip letter” and investigative file associated with a settlement agreement between PPL
and the agency.
Holding: Section 335(d) of the Public Utility Code requires the agency to make public the letter
and the file because they were documents that were relied upon by the agency in beginning an
investigation and in taking official action against a utility.
Case
Date
Citation
Pa. Liquor Control Bd. v.
Burns
June 16, 2020
229 A.3d 51 (Pa. Commw. Ct.
2016)
Request: Records reflecting the total number of licenses for auction per county.
Holding: The Liquor Code does not exempt the number of licenses; the fact that it once made
them expressly public and no longer does is not sufficient to manifest an intention by the General
Assembly that they be exempt under the RTKL. Furthermore, the Board did not show that they
were subject to any of the RTKL’s exemptions.
118
Case
Date
Citation
Greenberger v. Pa. Insurance
Department
March 7, 2012
39 A.3d 625
(Pa. Commw. Ct. 2012)
Request: Documents related to “Reinsurance Offset Guidelines” issued by the Pennsylvania
Insurance Department concerning the liquidation of Reliance Insurance Company.
Holding: The RTKL is inapplicable to rehabilitation or liquidation proceedings because they are
solely within the control of the court under the Insurance Act. The court and not the OOR had
jurisdiction over the requested documents. The OOR’s decision was vacated for lack of
jurisdiction.
Case
Date
Citation
Barosh v. City of Philadelphia
May 9, 2018
2018 Pa. Commw. Unpub.
LEXIS 259
(Pa. Commw. Ct. 2018)
History: Requester filed 11 requests directed to the City’s fire department seeking 33 separate
items all related to events that led to his convictions for arson and insurance fraud.
Holding: A previously entered protective order may act to prevent disclosure of public records
responsive to a subsequent RTKL request. Where a court of competent jurisdiction enters such an
order, even in collateral litigation, the OOR should deny a subsequent appeal.
Case
Date
Citation
Danvers v. Pa. Department of
Aging
July 18, 2013
2013 Pa. Commw. Unpub.
LEXIS 564
(Pa. Commw. Ct. 2013)
Request: Records related to complaints filed about the care of the requester’s mother.
Holding: For RTKL purposes, the identity of the requester is irrelevant; the Protective Services
Act renders confidential reports and information derived from investigations.
119
Case
Date
Citation
Pa. Department of
Transportation v.
Walsh/Granite JV
October 31, 2016
149 A.3d 425
(Pa. Commw. Ct. 2016)
Request: Bids submitted to PennDOT for maintenance and repair of structurally deficient bridges.
Holding: The Public-Private Transportation Partnership Law (“P3 Law”) only specifically
provides for the disclosure of successful proposals; because the P3 Law subsequently lists
exemptions, it follows that unsuccessful proposals are exempt from disclosure. The P3 Law
presents an alternative to the procurement process; likewise, public access to related records is not
governed by the RTKL.
Case
Date
Citation
Smith v. Pa. Department of
Environmental Protection
May 8, 2017
161 A.3d 1049
(Pa. Commw. Ct. 2017)
Request: Records relating to a business that performs drilling diagnostics throughout the state.
Holding: Pursuant to Department regulations promulgated under the Radiation Protection Act,
investigative reports “pertaining to safety and health in industrial plants” must be disclosed,
although trade secrets and confidential, proprietary information can be redacted. Inspections of
well sites qualify as reports that must be disclosed. However, records related to the Department’s
inspection of the business in question are related to a noncriminal investigation and are exempt.
Case
Date
Citation
Davis v. Pa. State Emps. Ret.
Sys.
October 27, 2022
284 A.3d 1307 (Pa. Commw.
Ct. 2022)
Request: Records involving a decision to invest in several real estate funds
Holding: Records relating to “alternate investments” under the Retirement Code may be exempt
from disclosure if they are (1) subject to a confidentiality agreement or, (2) disclosure would cause
120
substantial public harm, or (3) disclosure would detrimentally affect the value of the investment,
but only until release of such documents would no longer cause the associated harms. The
elements of this test may be demonstrated by a sufficiently detailed affidavit.
Case
Date
Citation
Energy Transfer v. Moss
January 20, 2023
2023 Pa. Commw. LEXIS 5
(Pa. Commw. Ct. 2023)
Request: Communications related to emergency planning for gas pipelines
Holding: Whether the records designated as “confidential security information” by Energy
Transfer qualified under the CSI act is a determination for the Public Utility Commission, and the
OOR has no jurisdiction to decide it. Furthermore, the filing of a formal complaint by the
Commission’s Bureau of Enforcement is not a final decision within the meaning of the Public
Utility Code- rather, that requires a decision, settlement, or official action under the Sunshine Act.
Case
Date
Citation
Swoboda v. Pa. Dep’t of State
October 20, 2023
304 A.3d 105 (Pa. Commw.
Ct. 2023)
Request: A list of registered voters without the requirements imposed under the Voter Registration
Act’s access provisions
Holding: Because the Voter Registration Act sets out an exclusive method for obtaining certain
voter registration information, it preempts the RTKL and petitioners could not obtain that
information without agreeing to avoid republication.
Case
Date
Citation
Honey v. Lycoming Cnty.
Office of Voter Services
March 4, 2024
2024 Pa. Commw. LEXIS 71
(Pa. Commw. Ct. 2024)
Request: Cast Vote Record files for the 2020 general election
121
Holding: CVR files constitute the “contents of a ballot box” under the Election Code and are,
therefore, unavailable through a RTKL request.
122
Criminal History Record Information Act (“CHRIA”)
CHRIA exempts records that relate to an individual’s criminal history. This law has significant
overlap with the exemption at Section 708(b)(16) of the RTKL, and may also be decided by appeals
officers for a District Attorney’s Office in some cases.
Case
Date
Citation
Pa. State Police v. Zloczower
October 4, 2011
2011 Pa. Commw. Unpub.
LEXIS 822
(Pa. Commw. Ct. 2011)
Request: A wide variety of police records.
Holding: Neither the RTKL nor CHRIA protect press releases, police blotters or court dockets
(filed charges) from disclosure. Further, an agency may not restrict access to public records
requested under the RTKL by asserting that the records are subject to disclosure only under
CHRIA, as the RTKL offers an alternative to CHRIA to obtain public records.
Case
Date
Citation
Barros v. City of Allentown
July 5, 2012
2012 Pa. Commw. Unpub.
LEXIS 466
(Pa. Commw. Ct. 2012)
History: Motion to dismiss on lis pendens, improper parties to CHRIA/RTKL action.
Holding: A District Attorney is an adjudicator, but not a keeper of criminal records. Therefore, he
is not a proper party to a RTKL action. The city police department is a local agency charged with
maintaining criminal records. Accordingly, it is a proper party to a RTKL action. Lis pendens
protects a defendant from being forced to defend multiple suits on the same cause of action at the
same time. When a Petitioner claims he has a right to access these records under the RTKL,
whereas in the earlier proceeding he sought access only under the CHRIA, lis pendens does not
apply.
Case
Date
Citation
In re Mezzacappa
April 6, 2023
297 A.3d 446 (Pa. Commw.
Ct. 2023)
123
Request: Mug shots taken of inmates during a 3-month period from the county prison
Holding: CHRIA and Section 708(b)(16) do not shield materials by implication, or create a
blanket protection for all records in which police take any interest; in the absence of a relationship
to a specific investigation, a record is not exempt. Additionally, the RTKL does not impose a duty
on a requester to act in good faith before an agency is required to reciprocate.
Case
Date
Citation
Segelbaum v. Pa. Office of the
Attorney General
August 17, 2023
304 A.3d 56 (Pa. Commw. Ct.
2023)
Request: A timeline sent by the AG’s office to a District Attorney as part of a complaint
Holding: The record sought constituted part of an investigation shared between two criminal
justice agencies and was exempt under CHRIA.
124
Family Education Rights and Privacy Act of 1974 (“FERPA”)
FERPA exempts certain education records from disclosure.
Case
Date
Citation
Easton Area Sch. Dist. v.
Miller
June 18, 2020
232 A.3d 716 (Pa. 2020)
Request: School records, including a school bus video showing a teacher disciplining a student.
Holding: School videos may be subject to restriction under both FERPA and the state
constitutional right to privacy, and therefore the agency should perform a balancing test and ensure
that the rights of students are represented before providing any records. However, records
otherwise exempt under FERPA may be provided without any constitutional issue if the images
of students are redacted from the video.
Case
Date
Citation
Central Dauphin School
District v. Hawkins
December 10, 2018
199 A.3d 1005
(Pa. Commw. Ct. 2018)
Request: Footage of a bus video showing a confrontation between a parent and a student.
Holding: Where a video of a student reveals nothing about a student-specific file, is not part of
any student discipline and is not part of the records traditionally considered education records, it
is not protected by FERPA. Furthermore, where school bus cameras are used for many purposes
other than conducting noncriminal investigations, footage taken from the cameras is not
necessarily exempt under Section 708(b)(17).
Case
Date
Citation
Sherry v. Radnor Township
School District
April 4, 2011
20 A.3d 515
(Pa. Commw. Ct. 2011)
Request: Records or reports of Academic Honor Code violations from a school district.
125
Holding: Student disciplinary records are “educational records,” and may not be disclosed without
the written consent of the student’s parent, pursuant to Section 1232g(b)(1) of FERPA.
Case
Date
Citation
Jessica Calefati and the
Philadelphia Inquirer. v.
School District of Philadelphia
January 12, 2022
2022 Pa. Commw. Unpub.
Lexis 17, 2022 WL 108455
Request: Records student-level attendance with student identifiers redacted.
Holding: FERPA does not categorically bar public disclosure of education records and an Agency
may not deny access to a record if the information which is subject to access is able to be redacted.
Case
Date
Citation
Central Dauphin Sch. Dist. v.
Hawkins
December 21, 2022
286 A.3d 726 (Pa 2022)
Request: Video of an interaction between a parent and a student on a school bus
Holding: Information which personally identifies students is exempt under FERPA; however, the
agency has a duty to redact that information if possible. The agency is responsible both for
asserting that lack of capacity and carrying the burden of persuasion to the tribunal. Although a
heightened expectation of privacy or a story’s presence in the news may factor into this analysis,
the tribunal must also consider whether the individuals in the case are still of school age.
126
Probation and Parole Records
The regulations of the Pennsylvania Board of Probation and Parole exempt from disclosure most
probation and parole-related materials.
Case
Date
Citation
Jones v. Office of Open
Records
March 31, 2010
993 A.2d 339
(Pa. Commw. Ct. 2010)
Request: The written parole recommendations made by the sentencing judge and prosecuting
attorney in his parole hearing.
Holding: Under 37 Pa. Code §61.2, any record possessed by the Board of Probation & Parole
which relates to matters concerning “a probationer or parolee are private, confidential and
privileged.” Furthermore, this regulation applies equally to those who have received probation or
parole and those who sought and were denied it.
127
Vehicle Code
Certain records involving driving and vehicles are exempt from disclosure.
Case
Date
Citation
Pa. Department of
Transportation v. Office of
Open Records
November 1, 2010
7 A.3d 329
(Pa. Commw. Ct. 2010)
Request: Sight distance measurements performed at an intersection
Holding: Under 75 Pa.C.S. § 3754, “in-depth accident investigations and safety studies”
performed by PennDOT and the Pennsylvania State Police are confidential, as are records used in
their preparation. However, the agency must demonstrate that the records sought either were or
are being used to prepare such a study.
Case
Date
Citation
Pa. Turnpike Commission v.
Murphy (Patriot News)
July 19, 2011
25 A.3d 1294
(Pa. Commw. Ct. 2011)
Request: Sought the name, positions and record of entry for all employees with E-ZPass
transponders who used the turnpike.
Holding: Records of electronic toll collection account holder information, including vehicle
movement records compiled from transactions with account holders, are exempt under 74 Pa.C.S.
§ 8117(d).
Case
Date
Citation
Advancement Project and
Marian Schneider v. Pa.
Department of Transportation
January 14, 2013
60 A.3d 891
(Pa. Commw. Ct. 2013)
Request: Sought the name, address, date of birth and social security number of each person issued
a driver’s license or non-driver photo identification card, by PennDOT, for a four-year period.
128
Holding: Name, address, date of birth and social security number of each person issued a driver’s
license or non-driver photo identification card are confidential under Section 6114 the Vehicle
Code and the Federal Privacy Act.
Case
Date
Citation
Coulter v. Pa. Board of
Probation & Parole
June 14, 2012
48 A.3d 516
(Pa. Commw. Ct. 2012)
Request: Parolee sought “home plan” records that she had submitted to Board agents related to
investigation of residences at which she sought to live.
Holding: Estoppel as a doctrine does not apply to RTKL requests because whether a document is
a public document or exempt, that character does not change just because the agency releases some
information contained in the document. Even though the Requester sought her own Home Plans,
the public status of a record does not depend on the identity of a requester.
129
Internal Revenue Code
Certain tax records are exempt from disclosure.
Case
Date
Citation
Pa. Office of the Budget v.
Campbell
August 4, 2011
25 A.3d 1318
(Pa. Commw. Ct. 2011)
Request: Copies of the current and former OOR employee W-2 forms, subject to redaction.
Holding: W-2 forms were within the definitions of “return” and “return information” under 26
U.S.C.S. § 6103(b), such that they were confidential and not subject to disclosure under § 6103(a).
Therefore, W-2 forms must be withheld entirely.
Case
Date
Citation
Fort Cherry School District v.
Coppola
February 23, 2012
37 A.3d 1259
(Pa. Commw. Ct. 2013)
Request: W-2 and 1099 forms submitted by the District for two years regarding four employees.
Holding: 1099 forms were within the definitions of “return” and “return information” under 26
U.S.C.S. § 6103(b), such that they were confidential and not subject to disclosure under § 6103(a).
Furthermore, the OOR erred in addressing issue of the 1099 forms, because it was not properly
raised by the Requester on appeal.
130
Constitutional Right to Privacy
The Pennsylvania State Constitution guarantees a right to “reputation,” which requires agencies
to perform a balancing test before producing certain information pertaining to individuals.
Case
Date
Citation
Pa. State Education Association
(PSEA) v. Office of Open Records
October 18, 2016
148 A.3d 142 (Pa. 2016)
History: This matter began with a declaratory judgment action to stop the production of the home
addresses of school employees in RTKL cases. After a complex procedural history, the lower
courts and OOR determined that there was no state constitutional right to privacy in RTKL cases.
On a final appeal to the Pennsylvania Supreme Court, PSEA argued that such a right did exist, and
that the RTKL was constitutionally deficient in providing the holders of that right an opportunity
to assert it. The Court agreed, finding that a right to privacy exists in Article 1, Section 1 of the
State Constitution, and that it could be invoked to bar the release of certain home addresses.
Holding: The Pennsylvania Supreme Court held that the right to privacy contained in Article 1,
Section 1 of the State Constitution requires that a balancing test be performed whenever an agency
is asked to produce records in which people have a privacy interest. This balancing test requires
that the agency and any tribunal deciding the case compare the public interest in disclosure set
forth by the requester and balance it against the interests of the third parties. Furthermore, the court
found that such an interest exists in the home addresses of public employees, and that those
addresses should not be released absent a compelling reason.
Case
Date
Citation
State Employees Retirement
System (SERS) v. Campbell
March 3, 2017
155 A.3d 1153
(Pa. Commw. 2017)
Request: A copy of the names and addresses of all retired SERS members with mailing addresses
in particular European countries.
Holding: Home address information implicated the right to privacy under Pa. Const. Art. I, § 1,
therefore a balancing test was required under the RTKL to determine whether the right to privacy
outweighed the public’s interest in dissemination.
131
Case
Date
Citation
Chester Housing Authority v.
Polaha
November 21, 2017
173 A.3d 1240 (Pa. Commw.
Ct. 2017)
Request: A list of all properties in a township where the tenant receives HCVP assistance, and a
list including the address of the property and name of the property owner.
Holding: The vouchers for HCVP assistance do not expressly waive the right to privacy of the
tenants of the homes, and therefore the Court must balance the tenants’ right to privacy against the
Requester’s interest in the records. The Court found that the agency’s compromise, where it
provided a less-specific list of addresses, was sufficient to satisfy the Requester’s interest and
therefore a greater government intrusion would be unjustified.
Case
Date
Citation
Butler Area School District v.
Pennsylvanians for Union
Reform
November 2, 2017
172 A.3d 1173
(Pa. Commw. Ct. 2017)
Request: School District Superintendent’s home address and an unredacted copy of the most
recent Property List for the School District.
Holding: Under the RTKL, property addresses contained in property tax assessment records are
public under 53 Pa.C.S. § 8841(d) and case law, as it was not sufficiently personal in nature to
trigger a balancing test under Pa. Const. art. I, § 1.
Case
Date
Citation
State Employees’ Retirement
System (SERS) v. Fultz
March 29, 2017
2017 Pa. Commw. Unpub.
LEXIS 220
(Pa. Commw. Ct. 2017)
Request: Home addresses of members of the state retirement system.
Holding: Although a court has the ability to take new evidence and make new findings on appeal,
the proper procedure is to remand to the OOR to conduct the balancing test in the first instance.
132
Case
Date
Citation
Governor’s Office of
Administration v. Campbell
January 24, 2019
202 A.3d 890
(Pa. Commw. Ct. 2019)
Request: The full names, dates of birth, job titles and counties of residence for all employees.
Holding: The OOR was required to perform the balancing test before releasing personal
information, even as de-identified as county of residence alone. The court, performing the
balancing test, determined that there was no public interest in release of county information.
Case
Date
Citation
Pa. Social Services Union v.
Commonwealth of PA
December 14, 2012
59 A.3d 1136
(Pa. Commw. Ct. 2012)
History: Members of the Social Services Union were provided an advisory opinion holding that
they were public employees and therefore required to complete and file Statements of Financial
Disclosure under the Governor’s Code of Conduct. It was further noted that these statements would
be made available to the public on request but redacted under Section 708(b)(6).
Holding: Though the statements required by the Governor’s Code of Conduct seek the submission
of data in which there is a right to privacy, the government’s interest in regulating employee ethics
is significant enough to make the requirements constitutional. However, the court enjoined the
Office of Administration from releasing these statements without redacting personal financial data.
Case
Date
Citation
City of Harrisburg v. Prince
January 3, 2023
2023 Pa. Commw. LEXIS 1
(Pa. Commw. Ct. 2023)
Request: Information regarding donors to a City litigation defense fund
Holding: While the information contained on a donation qualifying as a financial record may not
be exempt under the RTKL, a tribunal must still consider whether the identities of the donors are
subject to the state constitutional right to privacy. Although information provided to the
government in exchange for a benefit may result in a superior public interest in release of the
applicant’s information, disclosure of mere donations encompasses a diminished public interest.
133
Furthermore, objectors to release of their information may object anonymously, and a tribunal is
not required to receive verified statements from every objector.
134
Records of a Judicial Agency
The Constitutional separation of powers between executive and judicial agencies prohibits
executive agencies from providing certain records.
Case
Date
Citation
Court of Common Pleas of
Lackawanna County v. Office
of Open Records
August 11, 2010
2 A.3d 810
(Pa. Commw. Ct. 2010)
Request: Inappropriate emails from or to any email accounts used by a county employee, who was
also a court employee.
Holding: The RTKL limits the records that judicial agencies must disclose to financial records,
and the OOR may not decide appeals of records of a judicial agency, even if such records are held
by an executive body.
Case
Date
Citation
Register of Wills & Clerk of the
Orphans’ Court of
Philadelphia License Marriage
Bureau v. Office of Open
Records
March 26, 2010
2010 Pa. Commw. Unpub.
LEXIS 922
(Pa. Commw. Ct. 2010)
Request: Copies of 24 marriage license applications.
Holding: The Philadelphia Register of Wills & Clerk of the Orphans’ Court is a judicial agency
over which the OOR does not have jurisdiction.
Case
Date
Citation
Grine v. Centre County
April 13, 2016
138 A.3d 88
(Pa. Commw. Ct. 2016)
History: Several judges filed complaints seeking declaratory and injunctive relief to enjoin the
County from responding to RTKL requests for “judicial records” related to their activities. A
135
Requester sought phone records relating to three judges. Since the County paid the phone bill, the
request went to the County’s Open Records Officer, and the County had access to the records.
Holding: The Phone Records involve the usage of cellular phone services by the judges. The
County conceded that the records document the judges’ activities in that they reveal their identities
as the caller or recipient. However, to some extent the Phone Records also documented the
County’s payment of Verizon invoices for service. As such, the Phone Records were
simultaneously “of” the judicial agency and “of” the County. The judges established a clear right
to relief to ensure the judiciary retains control over records showing the activities of uniform
judicial system personnel. To avoid a potential separation of powers violation, the trial court
properly enjoined the County from responding to requests for records “of” a judicial agency. When
the responsive records are simultaneously of a county and of a judicial agency, a county must defer
to the judicial agency for a response.
Case
Date
Citation
Philadelphia District
Attorney’s Office v. Stover
September 12, 2017
176 A.3d 1024
(Pa. Commw. Ct. 2017)
Request: Copies of a conviction order, a sentencing order, and a court commitment form.
Holding: The requested records are judicial records and the District Attorney’s office is not
required to provide copies in response to a RTKL request. The court noted, however, that the
RTKL is not the sole mechanism for obtaining such records.
Case
Date
Citation
Smith v. Phila. Office of
Judicial Records
September 25, 2020
2020 Pa. Commw. Unpub.
LEXIS 466 (Pa. Commw. Ct.
2020)
Request: Written judgment of sentence order in a criminal proceeding.
Holding: The filing office of any court or court system is a judicial agency, and requests under the
RTKL should be appealed to the appeals officers designated by the responsive courts.
Furthermore, substantive filings such as orders and judgments are not financial records, and
therefore are not subject to a judicial request. However, such records are generally available under
court rules.
136
Case
Date
Citation
Faulk v. Philadelphia Clerk of
Courts
May 28, 2015
116 A.3d 1183
(Pa. Commw. Ct. 2015)
Request: Certified sentencing orders related to the requester’s criminal case.
Holding: A sentencing order is a judicial record, and only the financial records of a judicial agency
are accessible under the RTKL.
Case
Date
Citation
Frazier v. Philadelphia County
Office of the Prothonotary
December 4, 2012
58 A.3d 858
(Pa. Commw. Ct. 2012)
Request: A copy of an autopsy report and other related information from county prothonotary.
Holding: The OOR does not have jurisdiction to hear appeals under the RTKL taken from
determinations of a judicial agency of the Commonwealth. 65 P.S. § 67.503(a). Under the
Pennsylvania Rules of Judicial Administration, court prothonotaries are personnel of the unified
judicial system. Pa. R.J.A. No. 102. Moreover, the RTKL only requires judicial agencies to provide
financial records. 65 P.S. § 67.304.
Case
Date
Citation
Antidormi v. Lackawanna
County Clerk of Courts
September 14, 2011
2011 Pa. Commw. Unpub.
LEXIS 779
(Pa. Commw. Ct. 2011)
Request: Notes of testimony, pleadings filed in a trial court case.
Holding: The OOR does not have jurisdiction over requests for the records of court staff, including
a county Clerk of Courts.
137
Case
Date
Citation
Scolforo v. County of York
July 10, 2023
298 A.3d 193 (Pa. Commw.
Ct. 2023)
Request: Names, salary, job titles, and length of service of employees of the York County
Prothonotary’s Office.
Holding: Prothonotaries are judicial agencies under the RTKL, and even if those records are
possessed by a County, they must be sought from the court under Rule 509.
138
Judicial Review and Enforcement
After an administrative appeal of a RTKL Request is concluded, the parties have thirty days in
which they can appeal to a court. These cases examine the procedures involved.
Case
Date
Citation
Bowling v. Office of Open
Records
August 20, 2013
75 A.3d 453 (Pa. 2013)
Request: Records of invoices and contracts relating to equipment and services that Pennsylvania
Emergency Management Agency (PEMA) had purchased using grant funds from the federal
Department of Homeland Security.
Holding: The Pennsylvania Supreme Court granted allowance of appeal to determine the standard
and scope of review that applies when a court reviews a final determination of the Office of Open
Records. The first appellate court is to review appeals de novo, and the scope of review is broad
or plenary when it hears appeals from determinations made by appeals officers under the RTKL.
Case
Date
Citation
Baron v. Pa. Department of
Human Services
September 21, 2017
169 A.3d 1268
(Pa. Commw. Ct. 2017)
Request: Rates paid to nursing homes by managed care organizations.
Holding: Mandamus is not an appropriate remedy against a private party, and it was an infirm
basis to compel disclosure by the Department when a challenge to the underlying Order was still
pending. Both the appeals filed by the direct-interest participants and the requester’s cross-petition
for review constitute appeals of a final determination, thus triggering an automatic stay of the
release of all documents.
Case
Citation
Bethke v. City of Phila.
282 A.3d 884 (Pa. Commw.
Ct. 2022)
139
Request: All directives and policies of the Philadelphia Sheriff’s Office
Holding: An agency must timely file an appeal from an adverse Final Determination of the OOR
within 30 days. An agency should not attempt to rely on convincing a reviewing court to alter the
OOR’s order during an adverse enforcement action.
Case
Date
Citation
Roddy v. Pa. Office of the
Gov.
December 15, 2020
No. 561 M.D. 2020
(Pa. Commw. Ct. 2020)
History: Petitioner filed a Petition to Enforce against the Governor’s Office in the Commonwealth
Court after the Office did not produce unredacted records within thirty days.
Holding: Enforcement of OOR Final Determinations against Commonwealth agencies is
governed by Pa. Rule of Appellate Procedure 3761, which identifies a Petition to Enforce as the
proper vehicle and sets forth the requirements for that filing. The proceeding does not allow a
party to collaterally attack the Final Determination, but when third-party privacy rights are
implicated by a disclosure order the Court may provide for disclosure which protects those rights.
Finally, an agency’s assertion that a record is insufficiently specific on appeal does not relieve it
of its duty to present all applicable exemptions to the OOR; if it lacks the time to determine those
exemptions, it should seek additional time under APSCUF rather than raise none of them.
Case
Date
Citation
Guarrasi v. Scott
June 21, 2011
25 A.3d 394
(Pa. Commw. Ct. 2011)
History: Court documents related to prior criminal proceedings against requester. Petitioner
subsequently filed Petition for Review in Court’s original jurisdiction seeking declaratory relief
against various “Bucks County judges, officials or employees … who were designated as open-
records officers or appeals officers” seeking an order declaring his common law and constitutional
rights of access to the documents and requiring Defendants to forward the documents to him.
Holding: Because the Requester failed to appeal the denials of his requests and exhaust his
administrative remedies under the RTKL, the court declined to address his original jurisdiction
claims. The RTKL provides the exclusive means to seek redress for violations under the RTKL.
140
Case
Date
Citation
Crockett v. Southeastern Pa.
Transportation Authority
(SEPTA)
May 23, 2012
2012 Pa. Commw. Unpub.
LEXIS 365
(Pa. Commw. Ct. 2012)
Request: Claim files, maintenance, repair, and inspection records, and any handwritten reports
and/or the actual accounts of 156 incidents/accidents.
Holding: The filing of a petition for review “shall stay the release of documents” until the court
resolves the case. While an appeal is pending in any court, mandamus is not available.
Case
Date
Citation
Pennsylvanians for Union
Reform v. Centre County
District Attorney’s Office
June 1, 2016
139 A.3d 354
(Pa. Commw. Ct. 2016)
Request: Records showing government-issued cellular telephone usage of certain individuals, and
for the name and salary of its agency open records appeals officer.
Holding: The Commonwealth Court lacked jurisdiction over a political activist group’s petition
for review of a final determination by an appeals officer for the District Attorney’s office, which
denied access to records requested pursuant to the RTKL, because the District Attorney’s Office
was not a judicial agency and as such, review was properly before the Court of Common Pleas.
Case
Date
Citation
Capinski v. Upper Pottsgrove
Township
June 14, 2017
164 A.3d 601
(Pa. Commw. Ct. 2017)
History: Requester filed a petition to compel compliance with two final determinations. The Court
of Common Pleas denied this petition, holding that the agency had produced all responsive records.
The agency argued that the Court of Common Pleas did not have jurisdiction to hear this petition.
Holding: Mandamus is the action to file where the requester has not appealed the final
determination to a court for a merits review and seeks compliance with a final determination of
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the Office of Open Records as to a local agency, and it must be filed within the six-month statute
of limitations in the Judicial Code. An improper “petition to enforce” may be treated as a
mandamus when it pleads the essential factual prerequisites of mandamus.
Case
Date
Citation
Drack v. Tanner
October 12, 2017
172 A.3d 114
(Pa. Commw. Ct. 2017)
History: Two years after a final determination had been issued, a Requester filed a complaint in
the Court of Common Pleas, requesting enforcement and seeking bad faith penalties. The
Township filed preliminary objections in the nature of demurrer and for failure to join a necessary
party. The Court of Common Pleas dismissed the complaint.
Holding: The Requester pleaded facts necessary to bring an enforcement action in mandamus
against the Township. The trial court erred in sustaining the preliminary objections of the
Township, as (1) the third parties implicated with the request did not need to be added to the lawsuit
in order to compel compliance with the Final Determination of the OOR and (2) the trial court
improperly relied upon testimony/evidence outside of the plead facts in the Complaint, when
considering the Township’s demurrer.
Case
Date
Citation
Bethke v. City of Philadelphia
May 8, 2023
282 A.3d 884 (Pa. Commw.
Ct. 2023)
Request: All policies from the Sheriff’s Office.
Holding: The failure of the Office to file a timely appeal from the OOR’s Final Determination
was fatal to any appeal of the merits of the OOR’s decision, and the trial court could not grant
relief nunc pro tunc where the Office had simply failed to meet the deadline without other factors.
142
Case
Date
Citation
Cruz v. Pottsville Police Dep’t
September 18, 2023
2023 Pa. Commw. Unpub.
LEXIS 513
Request: Use of force policies.
Holding: Failure to file a timely appeal from the OOR’s Final Determination may result in the
waiver of any arguments on appeal that the records are exempt from disclosure.
Case
Date
Citation
Wishnefsky v. Pa. Department
of Corrections
July 8, 2015
2015 Pa. Commw. Unpub.
LEXIS 473
(Pa. Commw. Ct. 2015)
History: The Requester sought copy of any report showing the amount received from inmates
from the sale of commissary products, as well as sales broken down by category. After his appeal
was granted by the OOR, the Department did not produce records, and the Requester filed a
mandamus action to enforce the Final Determination.
Holding: Mandamus may be an appropriate vehicle by which to enforce a Final Determination.
When a Final Determination issues and is not appealed or scheduled for reconsideration, it creates
an enforceable right. Finally, a mandamus action may occur even when there are disputed factual
issues.
Case
Date
Citation
Buehl v. Pa. Department of
Corrections
July 27, 2015
2015 Commw. Unpub.
LEXIS 552
(Pa. Commw. Ct. 2015)
History: Request dated September 11, 2014. On October 15, 2014, after properly invoking an
extension, the agency granted the request in part, stating that it would provide redacted versions
upon payment of $106.25. Petitioner paid by money order in November 2014, and the agency
mailed responsive records on December 4, 2014. Requester appealed to OOR, stating that he had
been overcharged and that he didn’t receive all of the records. OOR denied Requester’s appeal as
143
untimely, holding that the period for any appeal from these actions by the agency began to run at
the time of the agency’s October 15, 2014 response.
Holding: OOR erred in finding Petitioner’s appeal untimely with respect to his claim that he was
improperly charged copying costs for blank pages of records. Remanded to OOR for further
proceedings on that issue. Requester’s appeal rights vested upon receipt of documents which were
redacted under a partial grant, because the denial did not occur until December 4, 2014, when the
agency provided the redacted pages. Therefore, the deadline for filing an appeal on this issue began
to run on December 4, 2014, not October 15, 2014.
Case
Date
Citation
Duquette v. Pa. Office of Open
Records
May 17, 2023
299 A.3d 190 (Pa. Commw.
Ct. 2023)
History: The OOR issued a Final Determination, and the Requester filed an action in mandamus
seeking to compel the OOR to disqualify an agency’s attorney and other injunctive relief. The
OOR filed preliminary objections.
Holding: The RTKL provides an adequate method of appeal for disagreements which stem from
the issuance of a Final Determination, and therefore collateral actions may be inappropriate.
Case
Date
Citation
Gray v. Phila. District Atty’s
Office
February 22, 2024
2024 Pa. Commw. LEXIS 64
(Pa. Commw. Ct. 2024)
Request: Sets of records related to the distribution of a video
Holding: The DA’s Office demonstrated that the records sought do not exist by providing
evidence that it had conducted a search and that it had no reason to have a requested list.
Furthermore, a Requester under the RTKL is permitted to withdraw an appeal in whole or in part
during the appellate process.
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Sanctions and Penalties
An agency which fails to properly discharge its duties under the law may have penalties imposed
upon it by a court, including sanctions and attorney’s fees.
Case
Date
Citation
Crockett v. Southeastern Pa.
Transportation Authority
(SEPTA)
September 11, 2012
2012 Pa. Commw. Unpub.
LEXIS 685
(Pa. Commw. Ct. 2012)
Request: Information related to an accident that occurred on September 1, 2010, while requester
was exiting a SEPTA train.
Holding: A showing of good faith effort by an agency to comply with the OOR’s Final
Determination will prevent sanctions against the Agency from being issued for failure to comply.
An award of damages requires the Agency to act in bad faith and fail or refuse to perform a duty
required by law.
Case
Date
Citation
Uniontown Newspapers, Inc.,
v. Pa. Department of
Corrections
December 19, 2016
151 A.3d 1196
(Pa. Commw. Ct. 2016)
Request: Documentation of illnesses contracted by inmates and/or staff members at SCI-Fayette.
Holding: Penalties for bad faith were premature in this case because there were still disputed facts
as to whether the agency provided all of the requested records or not. Requester bears the burden
of proving that DOC did not comply with OOR’s order directing DOC to disclose “all responsive
records” within 30 days.
145
Case
Date
Citation
Uniontown Newspapers, Inc. v.
Pa. Department of Corrections
March 23, 2018
185 A.3d 1161
(Pa. Commw. Ct. 2018)
History: The Commonwealth Court had made a finding of bad faith as to the agency’s compliance
with the RTKL, and a hearing was held as to the matter of sanctions and attorney’s fees.
Holding: Relying upon Section 1304(a), the court construed the RTKL as permitting recovery of
attorney fees when the receiving agency determination is reversed, and when the agency had
deprived a requester of access to records in bad faith. The court granted the Requester’s fee
petition, in part, and awarded it $118,458.37 because the Requester demonstrated that the
Department denied access willfully and with knowing disregard of Requester’s rights to access,
and otherwise acted in bad faith.
Case
Date
Citation
Philadelphia District
Attorney’s Office v. Bagwell
February 16, 2017
155 A.3d 1119
(Pa. Commw. Ct. 2017)
Request: Records related to emails backed up from the City of Philadelphia and in possession of
the Philadelphia District Attorney’s Office.
Holding: The Commonwealth Court held that some of the emails in the possession of the District
Attorney’s Office were not protected by an exemption in the RTKL. The District Attorney’s Office
refused to disclose the requested records, and therefore a civil penalty was imposed and upheld by
the Commonwealth Court as such behavior constitutes bad faith.
Case
Date
Citation
City of Philadelphia v. Ali
November 12, 2015
2015 Pa. Commw. Unpub.
LEXIS 830
(Pa. Commw. Ct. 2015)
Request: Sought all records relating to the revitalization and redevelopment of a commercial
corridor.
146
Holding: Section 1304(a)(2) of the RTKL provides that a court may award attorney’s fees and
costs if the agency’s reasons for denial were not based on a reasonable interpretation of the law;
Section 1304(b) allows an award if the court finds that a legal challenge under the RTKL was
frivolous. Raising 1304(a)(2) only before a lower court results in waiver of an argument based on
1304(b) on appeal.
Case
Date
Citation
Borough of Pottstown v.
Suber-Aponte
May 7, 2021
2021 Pa. Commw. Unpub.
LEXIS 245, 256 A.3d 501
Request: Police video footage of the Requester taken during a specific time and date.
Holding: Because Requester did not appear at a hearing and present evidence in support of a claim
of spoliation of evidence, the court properly declined to impose sanctions on bare allegations.
Case
Date
Citation
McFalls v. Mun. of Norristown
May 17, 2022
280 A.3d 345 (Pa. Commw.
Ct. 2022)
Request: Documents regarding the requester’s interaction with police officers
Holding: The RTKL is not a vehicle of the criminal discovery process, and an agency is not liable
for prejudice to a criminal proceeding from delayed RTKL responses. Furthermore, the proper
vehicle to enforce a Final Determination of the OOR is a petition in mandamus. Finally, the
requester’s motives in seeking documents are not relevant to a determination of bad faith- only the
conduct of the agency is relevant.
Case
Citation
Bethke v. City of Phila.
282 A.3d 884 (Pa. Commw.
Ct. 2022)
Request: All directives and policies of the Philadelphia Sheriff’s Office
147
Holding: An agency must timely file an appeal from an adverse Final Determination of the OOR
within 30 days. An agency should not attempt to rely on convincing a reviewing court to alter the
OOR’s order during an adverse enforcement action.
Case
Date
Citation
Mont. Co. v. Brock
September 28, 2022
286 A.3d 402 (Pa. Commw.
Ct. 2022)
Request: All communications to the County Department of Health referencing several keywords
Holding: Failure to timely appeal a Final Determination of the OOR may not be resolved via nunc
pro tunc relief if the cause of that failure is an agency’s negligence rather than sufficient
extraordinary circumstances. However, an agency’s conduct is not sanctionable bad faith where
it timely responds to a request and merely seeks prepayment of fees, even if that fee demand is
later overturned.
Case
Date
Citation
Sawicki v. Wessels
December 19, 2022
2022 Pa. Commw. Unpub.
LEXIS 556 (Pa. Commw. Ct.
2022)
Request: Invoices to the Borough solicitor and communications mentioning the Requester
Holding: Where an agency fails to prove that records do not exist and the OOR grants an appeal,
the agency may satisfy the order by producing specific evidence that the records do not, in fact,
exist. Additionally, a lawyer may not obtain attorney’s fees while representing themselves, but a
pro se litigant may still be able to recover the costs of the case under the RTKL. Finally, a court
must analyze a claim of bad faith under the RTKL without reference to the mental state of the
Requester.
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The Right-to-Know Law Case Law Index was prepared by the Office of Open Records as a resource
for agencies and requesters. It does not include every appellate case, and you should not rely upon
it in place of experienced legal counsel.
Additional resources are available on the OOR’s website:
https://www.openrecords.pa.gov/