Penn. court holds agency wrongfully ignored records request because they were requested incorrectly

The Pennsylvania Commonwealth Court held Monday that written requests for records that do not comply with certain agency-specific request policies cannot merely be ignored.

"[The case] is a seminal case for open records," said Terry Mutchler, executive director of the Pennsylvania Office of Open Records (OOR). "They don’t need to use magic language in order to secure records of their government. They get in the door by saying 'I’m asking for records.'"

On March 20, 2009, James Schneller, a member of the Eastern Pennsylvania Citizens Against Gambling, sent e-mail to the state Gaming Control Board's communications office seeking copies of certain communications and financial data exchanged between the Board and gaming license applicants.

Schneller's e-mail explained that he was "writing to repeat my verbal and written requests" for those records. After receiving no response to his records request 10 days later, Schneller appealed to the OOR, citing a provision of the law that states requests are "deemed denied" if an agency does not respond "within five business days."

The board argued it had no duty to respond because Schneller did not specify the request was "being made pursuant to the [Right-to-Know Law]" or use official request forms, as required under the board's policies.

However, the OOR determined Schneller's request was valid, and the board should therefore have followed a provision in the law that requires employees to "forward requests for records to the open-records officer."

The court affirmed this opinion in a 6-1 decision, ruling that such "technicalities should not stop a written request for records in its tracks."

The court held the provision that a "written request must be addressed to the open-records officer" only meant it must be "directed" to that officer, rather than requiring "a formal salutation" such as "'Dear Open-Records Officer." The court also ruled that requests did not need to cite the Right-to-Know Law, but only needed to request records with "sufficient specificity."

Finally, if the board received a request in the wrong format, the law required it to notify the requester of the mistake within five business days of receipt, the court ruled.

Judge Dan Pellegrini, in his dissenting opinion, wrote that "the majority's holding would make an unaddressed request written on the back of a brown paper bag and given to a PennDot plow driver by the side of the road on a snowy winter night a valid right-to-know law request."

Mutchler disagreed and said in the 4,500 cases processed through her office under the Right-to-Know law since it came into effect in 2009, no scenario like the one described in the dissent has occurred.

"This did not open the floodgates to problems in my view. This interpreted the law in a way that makes sense, that permits citizen to access records of their government," she said.

The Pennsylvania Gaming Control Board said that it supports the goals of the Right to Know act, but will consider further review of the decision.

"We . . . have significant concerns over the divided Court's decision which appears to re-write the procedural requirements of a law that included procedures that provide a definite and reliable process for all government units," said Doug Harbach, communications director of the Gaming Control Board.