Right to Know Law: Attorney Fees following Commonwealth Court’s Bad Faith Determination

Uniontown Newspapers, Inc. v. Pa. Dep’t. of Corr., 185 A.3d 1161 (Pa. Cmwlth. 2018); 197 A.3d 825 (Pa. Cmwlth. 2018), allocatur granted Sept. 24, 2019, appeal docket 77 MAP 2019

In these combined cases, the Department of Corrections (DOC) was found to have acted in bad faith by failing to conduct a good faith search, as required by the Right to Know Law (RTKL), for documents related to inmate diagnoses at a correctional facility, which resulted in an assessment of over $118,000 in attorney fees against the Department. The Pennsylvania Supreme Court granted allocatur to consider whether the Commonwealth Court’s award of attorneys’ fees was proper.  

In a single judge opinion, Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 185 A.3d 1161 (Pa. Cmwlth. 2018) (Bad Faith Opinion), Judge Simpson found DOC acted in bad faith in responding to requests made pursuant to the RTKL for diagnosis data of inmates at State Correctional Institution (SCI)-Fayette, based in part on its proximity to a fly ash dump in Fayette County (Request), as well as information comparing illnesses of SCI-Fayette inmates with inmates at other SCIs. Specifically, Judge Simpson determined that “DOC did not perform its duties during the request stage in several material respects. In short, DOC neglected to: perform a good faith search; obtain records from sources consulted during the No Escape Investigation; review all potentially responsive records; and, assess the content of responsive records before withholding access.” Bad Faith Opinion at 9. Thus, because the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of the Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, Judge Simpson concluded that “DOC committed bad faith so as to warrant statutory penalties in the maximum amount of $1,500 pursuant to Section 1305(a) of the RTKL, 65 P.S. §67.1305(a).” Id. at 26.

Following the court’s bad faith determination, Uniontown Newspapers, Inc., d/b/a The Herald Standard (Requester) petitioned the Commonwealth Court for attorney fees pursuant to Section 1304(a) of the RTKL, which provides:

(a) Reversal of agency determination.– If a court reverses the final determination of the appeals officer or grants access after a request for access was deemed denied, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:

(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or

(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.

In another single judge opinion, Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 197 A.3d 825 (Pa. Cmwlth. 2018) (Fee Opinion), Judge Simpson noted that while a prior version of the RTKL (referenced by the court as the “RTKA”) did not permit the recovery of attorney fees for bad faith, the legislature added bad faith as a basis for the recovery of attorney fees to the current RTKL. Additionally, the current RTKL changed the term “agency’s final determination” in subsection (a)(1) to “appeals officer’s final determination,” which Judge Simpson determined was ambiguous, explaining:

Significantly, the term “final determination” is used as to the final determination of the appeals officer, and of the receiving agency in the same section. Using the term “final determination” two different ways renders the meaning of “final determination” in Section 1304(a) ambiguous. Although it may be construed as the final determination an appeals officer issues under Chapter 11 of the RTKL, it may also fairly be construed as referring to the receiving agency’s determination denying access. Because the meaning of this term is crucial to the provision, and it is capable of two possible constructions, Section 1304(a) is ambiguous.  

Fee Opinion at 6. Applying the rules of statutory construction, Judge Simpson concluded that Section 1304(a) of the RTKL should not be construed as requiring the reversal of an appeals officer’s determination by a court, reasoning that:

… such an interpretation is unreasonable and would yield an absurd result.

Construing Section 1304(a)(1) to require reversal of an appeals officer’s determination would penalize a requester for prevailing in its Chapter 11 appeal. That is because when an appeals officer recognizes a requester’s access rights in the administrative proceeding, reversing that appeals officer’s determination would be adverse to the requester.

If a court’s reversal of an appeals officer’s final determination is a prerequisite for requester’s recovery under Section 1304(a), the agency accused of bad faith may preclude this remedy by electing not to appeal the final determination to a Chapter 13 Court. Thus, the most egregious of agency conduct, and the denials of access recognized as improper during the Chapter 11 appeal, could go unchecked.

Fee Opinion at 8. Thus, the Commonwealth Court found that the Requester qualified for an award of reasonable attorney fees pursuant to RTKL § 1304(a), reasoning that:

In light of the prior provision and the ambiguity of the current provision, this Court construes Section 1304(a)(1) of the RTKL as permitting recovery of attorney fees when the receiving agency determination is reversed, and it deprived a requester of access to records in bad faith. [Citation omitted]. This construction gives effect to the legislative intent for the RTKL to provide more transparency than the RTKA. It provides an impetus for an agency to comply with an appeals officer’s final determination in a requester’s favor and provides an incentive to requesters to litigate access and bad faith. Moreover, a fee award holds an agency accountable for its conduct during the RTKL process, as well as for its determination denying access.  

Here, this Court found that DOC, the receiving agency, denied access willfully and with knowing disregard of Requester’s rights to access, and otherwise acted in bad faith. See Bad Faith Opinion. This Court also enforced the reversal of DOC’s denial. Accordingly, Requester qualifies for an award of reasonable attorney fees under Section 1304(a)(1) of the RTKL, 65 P.S. § 67.1304(a)(1).

Fee Opinion at 10-11.

The Supreme Court will decide the following issues:

(1) Where RTKL Section 65 P.S. § 67.1304 and § 67.1305 premise the award of sanctions and attorney fees on a finding of bad faith and willful and wanton behavior, can a court impose those penalties based on a finding that the RTK responder failed to personally and independently assess the universe of documents sought, instead relying on the statement of the Bureau functionaries that all otherwise responsive records are part of a noncriminal investigation, when any duty to independently and personally assess is not clearly delineated in either the statute or the case law?

(2) Did the Commonwealth Court properly construe the statutory language of 65 P.S. § 67.1304 as authorizing an award of attorney fees when a court reverses a final determination of an agency rather than when a court reverses the final determination of the appeals officer?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.