Commonwealth Court: Agencies can't refuse to disclose hard-to-find records
A state appeals court ruled on Tuesday that the Department of Environmental Protection must release documents to The Times-Tribune in response to an open records request regardless of whether it is hard for the agency to find the records in its files.
The three-judge panel of the Commonwealth Court agreed with an earlier decision by the state's Office of Open Records and found that the DEP cannot deny a sufficiently specific request under the state's Right to Know Law because the documents would be "burdensome" for the agency to find. It also noted that the DEP never physically searched its files to find the documents.
"There is simply nothing in the RTKL that authorizes an agency to refuse to search for and produce documents based on the contention it would be too burdensome to do so," Judge Anne E. Covey wrote in the opinion, adding that the burden on DEP comes not from the records request, "but from DEP's method of tracking its records."
"An agency's failure to maintain the files in a way necessary to meet its obligations under the RTKL should not be held against the requestor," she wrote. "To so hold would permit an agency to avoid its obligations under the RTKL simply by failing to orderly maintain its records."
Dena Lefkowitz, chief counsel for the state's Office of Open Records, said that the opinion affirms the office's efforts to encourage and train public agencies across the state to properly maintain and organize their files in order to comply with the Right to Know Law.
"We acknowledge the burden, but volume obviously doesn't mean that a request doesn't have to be complied with," she said. "It's our hope that decisions like this will make agencies more aware of the internal aspects associated with complying with this law, not just the external ones."
She said the opinion also helps define which requests are considered specific enough under the law as well as the kind of effort expected of an agency to track down records in its control. The court found that the department's reliance on a database search and institutional knowledge is not enough, she said.
The judges determined that The Times-Tribune requested "a clearly defined universe of documents": letters sent by the DEP to public and private water supply owners describing whether nearby natural gas drilling operations had polluted or diminished the flow of water to their wells. The paper also asked for enforcement orders issued by the department in response to those findings. DEP partially granted the request and provided some records in response.
A DEP spokesman said Tuesday that the department had just received the opinion and is reviewing it.
The agency can ask the Commonwealth Court to reconsider the decision en banc or petition the state Supreme Court to hear an appeal, Lefkowitz said. If the DEP does not appeal it must produce the records within 30 days, as directed by the Office of Open Records in its initial determination in December.
Times-Tribune attorney J. Timothy Hinton Jr. said the ruling is "a good decision for public access."
"It sets forth some bright line statements as to what's expected of a public agency when responding to a request for records: They have to do an actual physical search for the records; it's their burden to maintain the records in an orderly fashion," he said. "The courts of Pennsylvania are not going to look kindly on an excuse that it's just too burdensome."
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