A Pennsylvania appellate court ruled on Tuesday that the state Department of Transportation must release records on speed enforcement devices used by state police agencies in full – without any redactions – under the state's Right-to-Know Law to an engineer whose speeding ticket sparked the requests.
The decision affirmed an order from the Pennsylvania Office of Open Records (OOR) that required the transportation department to release the requested materials last May. The department appealed the ruling to the state Commonwealth Court, which agreed with the OOR, ruling that the department must provide the requester, Earle Drack, with full copies of the records he sought.
In Jan. 2011, Drack requested copies of all department correspondence regarding the speed measurement device – ENRADD – under the Right-to-Know-Law. He also requested materials related to its calibration procedure and training manuals. This device, only used in Pennsylvania, was used to track Drack's speed when he was stopped for speeding in 2007, he said.
Drack said in an interview that the tracking device was "grossly off" in recording his speed when he got the ticket.
In a letter sent one week after his 2011 request, PennDOT informed Drack it would need to take an extra 30 days to respond to his request, according to court documents. Under state law, agencies are generally required to respond to records requests within five days, but have the right to a 30-day extension for certain statutory purposes, such as to conduct a legal review of the records or to make redactions for material that is exempt from disclosure.
But, at the end of the 30-day period, the department issued an "interim" response instead. The department said it would not process Drack's request until he paid an outstanding balance of $16.38, due from past records requests on the same issue.
Drack appealed to the OOR and argued the department could not delay processing his request or issue a final response letter beyond the 30-day extension period due to an unpaid balance, as "[t]he law has no provision for 're-starting the clock.'" According to Drack, the department should have raised the issue in its initial five-day response. The department claimed that because a separate provision of the law provides that all fees must be paid to receive access to requested records, it was permitted to issue a non-final response after the 30-day period.
After Drack paid his balance, the agency provided him with copies of the materials he requested — but wrongfully redacted material, he argued. PennDOT justified these redactions and said they were protected from disclosure under the attorney-client privilege.
PennDOT declined to comment on the case. When asked for further basic information about the ENRADD device, a department official could not comment immediately.
The court ruled that the agency could not withhold materials at that point based on the attorney-client exemption. Once the department exercised its right to an extension, it was then required to provide a final response to the requester within the 30-day allotted period, the court said, and that final response "must identify all reasons why an agency is denying access to all or part of the requested records."
The department failed to do so, the court ruled, as PennDOT had not mentioned that exemption in its final response to Drack, and it therefore waived its right to raise it on appeal.
This was not Drack's first litigation over records with PennDOT.
In June 2008, the court ruled in favor of the department in denying Drack's request for records related to the device. The court concluded that Drack failed to establish that the documents he sought were public records subject to the Right-to-Know Law.
But later that year, former Gov. Edward G. Rendell signed into law an overhaul of the state's open records law. The new Right-to-Know Law, which took effect in 2009, broadened the definition of a public record and established a presumption of openness in government records, placing the burden of establishing records as exempt onto government agencies denying access to requested records. Following this change in the law, Drack filed additional records requests with PennDOT.
Related Reporters Committee resources:
· Pennsylvania – Open Government Guide: D. Fee provisions or practices.
· Pennsylvania – Open Government Guide: 1. Statutory, regulatory or court-set time limits for agency response.