The Pennsylvania Supreme Court recently held in Bowling v. Office of Open Records, No. 20 MAP 2011, 2013 WL 4436219, at *1 (Pa. Aug. 20, 2013), that courts reviewing pending cases under the state’s Right-to-Know Law (“RTKL”) are free to consider any relevant evidence and argument when evaluating the legitimacy of a RTK request. No longer are courts (the Commonwealth Court for state agencies and the Courts of Common Pleas for county and local agencies) limited to the record previously created during mandatory administrative review by the Office of Open Records (“OOR”). This decision impacts state and local agencies, businesses and individuals seeking documents under the RTKL, and third-parties (both individuals and businesses) whose records are being sought. Now, public agencies and the businesses and individuals involved in appeals pending in the courts are free to introduce additional evidence and present new arguments, even after OOR has rendered its final determination. The greatest impact after Bowling is that public entities will no longer be limited in any appeal to the arguments presented in their initial and often hurried responses.
What was the case about?
The Bowling case involved a dispute over access to certain information contained in public records held by the Pennsylvania Emergency Management Agency (“PEMA”). Specifically, Brian Bowling (an employee of the Pittsburgh Tribune-Review) requested access to invoices and contracts relating to equipment and services that PEMA had purchased with funds from specific federal grants. PEMA provided access to the records, but first redacted the identities of the persons receiving the items purchased with grant money. Bowling appealed PEMA’s redaction to the OOR – the state agency tasked with providing administrative review of RTK requests. OOR found the redactions to be proper under the RTKL, but when the matter was appealed, the Pennsylvania Commonwealth Court considered evidence that was not contained in the original record. The Pennsylvania Supreme Court thereafter granted OOR’s petition for allowance of appeal for the purpose of considering both the appropriate standard of review and whether reviewing courts can consider additional evidence and arguments not presented at the administrative level.
What was the Pennsylvania Supreme Court’s decision?
The Supreme Court affirmed the Commonwealth Court’s decision to review OOR’s determination de novo (meaning afresh), holding that the Commonwealth Court’s review could include argument and evidence beyond that which OOR had considered. The OOR and PEMA had argued that a reviewing court was required to defer to the administrative decision OOR had rendered below. The Supreme Court pointed out several flaws with this reasoning in light of the statutory construction of the RTKL, favoring instead de novo review.
The case also required the Supreme Court to decide who, under the RTKL, was considered the “ultimate statutory fact finder” – the OOR or the reviewing court? The Court determined that the reviewing court is the ultimate statutory fact finder, basing the Court’s decision, in part, on the text of various RTKL provisions in conjunction with Pennsylvania’s Statutory Construction Act. 1 Pa.C.S. § 1501 et seq.
Finally, the Supreme Court decided the scope of evidence that a reviewing court may properly consider. Section 1303(b) of the RTKL provides that: “[t]he record before a court shall consist of the request, the agency’s response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.” 65 P.S. § 67.1303(b). OOR had argued that a court should generally be prevented from expanding the record beyond those specific items prescribed by § 1303(b). The Court, however, reasoned that reviewing courts are the intended fact finders under the RTKL, and therefore those courts must be able to expand the record to include additional evidence and arguments in order to fulfill their statutory function.
What is the impact of the decision?
Bowling provides clarity as to the standard of review and the scope of review to be employed by reviewing courts. Following Bowling, reviewing courts are free to consider whatever evidence or arguments are deemed necessary to appropriately adjudicate pending disputes. The decision is likely to affect the manner in which Pennsylvania attorneys prepare for administrative reviews by the OOR. Bowling signals the end of the current requirement that a comprehensive record must always be established during agency and OOR proceedings. No longer is there a limitation to the OOR record during subsequent review by a court. Forecasting the long term net effect, Bowling will likely underscore the importance of pursuing further review of decisions rendered by the OOR, since review by a court now essentially amounts to a fresh start.
Pennsylvania’s Right-to-Know Law is codified at 65 P.S. § 67.101 et seq. and is available here.