OOR overrules OOR in Right to Know Law dispute!

The Pennsylvania Office of Open Records ("OOR") is not just an appeals adjudicator under the Right to Know Law ("RTKL"), it is also a Commonwealth Agency in its own right and must itself respond to RTKL requests. It is somewhat quirky, therefore, than a denial of records by OOR as an agency would get adjudicated on appeal by OOR. But that is what happened in the following unusual dispute in which OOR overruled itself:


Yes. OOR Attorneys Young and Lorah are appeals officer colleagues. One decided that the other was wrong about the law.  OOR ruled that OOR was wrong. The duties of OOR executive director Erik Arneson is governed by Section 1310(e) of the RTKL ("The executive director shall ensure that the duties of the Office of Open Records are carried out and shall monitor cases appealed to the Office of Open Records"). Erik would surely have been monitoring an OOR appeal of an OOR denial. Public resources were expended by OOR to reach the legal conclusion that OOR was wrong about the RTKL. A few eyebrows should be raised.

What this was about? (OOR had allowed ex parte communication to occur in earlier dispute) ...

This was about me using the RTKL to hold a public agency and its officials accountable for the their official actions. Here, I was holding the OOR to account. In an earlier OOR appeal (handled by Appeals Officer Higgins), Campbell v. Millcreek Township Schoool District, Final Determination Dkt. No. 2018-0266, Appeals Officer Higgins permitted the school district to send her records, ex parte, (that means without copying the other party). That is not how our judicial system works. One side doesn't get to talk alone to the Judge. Indeed, OOR in its form letter docketing instructions reminds both parties that they must copy the other party on any submissions sent to the appeal officer. The only exception to this rule is when an agency is told to submit records for in camera review (i.e. for only the OOR appeals officer to see) which occurs when OOR wants to assess whether things like attorney-client privilege might apply. But; for redacted records (that the agency is not making any denial argument over) there is no in camera review.

Millcreek Township SD in this earlier case didn't want to send me copies of the redacted records they sent to OOR. And Appeals Officer Higgns let them get away with it. The attitude from OOR was akin to "Appeals Officers can do whatever they like, procedurally, and too bad if you don't like it." I didn't appreciate that attitude, only instead of griping to Appeals Officer Higgins about the fact that Millcreek Township SD had sent redacted records to OOR ex parte, I filed a RTKL request of OOR itself to get hold of the ex parte communication records. This placed OOR into a bind.  I was, creatively, using a new request to point out that (a) OOR shouldn't be allowing ex parte communication in appeals and (b) if it did, then it was pointless because a Requester could get the records from OOR.

OOR didn't want a Commonwealth Court case that it was almost certainly going lose. So, at the last minute, OOR decided to overrule OOR. OOR had allowed ex parte communication from an agency in the middle of an appeal. That was, and remains, legitimate criticism of OOR. Although the decision in Dkt. No. 2018-1041 was correct there are two worrisome things about it:

1.  OOR Open Records Officer Spiess (and advocate attorney Lorah) decided that my identity was relevant. The fact that I was the requester in the earlier Millcreek Township SD dispute playing into the denial basis. That is flat out wrong as a matter of law. Requester identity is irrelevant.

2. OOR Open Records Officer Spiess (and advocate attorney Lorah) decided that my motivation for the request was relevant to the denial argument. They considered, and OOR Appeals Officer Young ruled on, my alleged motivation. At the bottom of page 4 is written "there is no indication that the Requester seeks to challenge any procedure or Order concerning the RTKL appeal to which the requested records relate. Therefore the only issue to be decided in this matter is ..." Again; that is not OK. An agency has no lawful basis to adjudicate a Requester's actual or perceived motive.

OOR made an error in allowing ex parte communication in Dkt. No. 2018-0266. OOR then compounded the problem in a RTKL denial that focused on requester identity and requester motive. While the outcome of Dkt. No. 2018-1041 was correct; the farce of OOR overruling OOR is worthy of consideration. OOR is not immune from public scrutiny of OOR's official actions. It, too, is accountable to the public.