Pursuant to the Right-to-Know-Law, the Commonwealth Court finds a municipality’s unexcused failure to send requested documents until after the Office of Open Records’ ordered deadline, or with redactions, may demonstrate bad faith warranting an imposition of a civil penalty up to $1,500.
Background of the Case
In McFalls v. Municipality of Norristown, Amy McFalls (“McFalls”) requested documents from the Municipality of Norristown (“Norristown”) regarding a March 2018 incident between herself and Norristown police officers.
When Norristown denied McFalls’ May 2019 request for documents, she appealed to Pennsylvania’s Office of Open Records (“OOR”). The OOR ordered Norristown to produce documents within thirty days relating to: the police department’s policies of the custody and care of prisoners; restraint procedures for aggressive prisoners; records of certification and training of the officers involved in the March 2018 incident; and policies and reporting requirements for incidents involving force. Neither McFalls nor Norristown appealed the OOR’s determination, and Norristown forwarded the requested documents, with redactions, thirty-five days after the OOR’s order.
About a month later, McFalls petitioned Montgomery County’s Court of Common Pleas for an order to compel Norristown to release records as ordered by the OOR, and to impose attorney’s fees and a civil sanction. In her petition, McFalls argued that Norristown failed to comply with the OOR’s determination by forwarding responsive documents that were not only late, but also severely redacted.
Norristown then moved for summary judgment on McFalls’ petition, asserting that a petition was an incorrect procedural device to obtain compliance with an OOR decision and even if the petition is proper for appealing the OOR decision, McFalls filed it after the thirty-day appeal period. The Court of Common Pleas of Montgomery County granted Norristown’s Motion for Summary Judgment and dismissed McFalls’ petition.
Appeal to Commonwealth Court
On January 27, 2021, McFalls appealed the trial court’s order, seeking the Commonwealth Court of Pennsylvania’s instructions mandating Norristown to produce all requested documents, and imposition of $8,000 for attorney’s fees and $1,500 for a civil penalty.
Affirming the trial court’s order, the Commonwealth Court denied further sending of records and request for attorney’s fees, holding that a petition to enforce was the improper procedural device to seek OOR compliance and the Right-to-Know-Law (“RTKL”) does not award attorney’s fees in McFalls’ circumstances. However, the Court vacated and remanded the trial court’s order that denied McFalls’ request to impose a civil penalty pursuant to the RTKL.
Under Section 1305(a) of the RTKL, “[a] court may impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.” Although the requester bears the burden of proving bad faith, the Court held bad faith may be proven by evidence of an agency’s failure to perform its required duties.
Additionally, the Court clarified that when determining whether bad faith exists, the correct inquiry concerns the actions and behavior of the agency requested to produce records, not on the motivation of the requester.
The Commonwealth Court ruled that Norristown’s unexcused failure to disclose the requested documents until after the OOR’s deadline is evidence of bad faith sanctionable under the RTKL. It also suggested that an in camera review might be suitable to ascertain whether Norristown’s redactions of the produced documents were unauthorized and in bad faith.
What This Means
While this case itself did not impose sanctions, it creates the possibility that a civil penalty of up to $1,500 may be warranted in consideration of an agency’s conduct. Because of this ruling, agencies that hold records will be more careful when dealing with requests for documents to avoid a potential fine.
Courts will likely look at an agency’s actions and behavior when determining if bad faith exists and a civil penalty under the RTKL is warranted. Additionally, by suggesting that an in camera review may be suitable to determine whether redactions were made in bad faith to produced documents, Courts will now be able to review any redacted documents, even if they were timely.
The McFalls decision makes the requester’s job of proving an agency’s bad faith in withholding access to public records much easier when arguing that the Court should impose a civil penalty.
If you should have any questions, please contact your legal counsel or one of the attorneys at KingSpry.
Municipal Minutes are a publication of KingSpry’s Municipal Law Practice Group. This article was written with assistance from Jacqueline Borrelli, KingSpry Legal Intern. It is meant to be informational and does not constitute legal advice.
