Three Part Test for Right To Know Requests KingSpry

Edging Closer to Rules for Addressing Specificity Concerns Under Right to Know Law

Posted on July 15th, 2015
by Rebecca A. Young

On July 14, the Commonwealth Court addressed a request for “all emails” and determined that it was insufficiently specific to require an agency response.  A three-part test will now help with Right To Know Law (RTK) requests for “all records.”

Here’s What Happened

On August 5, 2014, the Pittsburgh Post-Gazette submitted a Right to Know request to the Pennsylvania Department of Education (PDE), seeking “all of the emails of Acting Secretary of Education Carolyn Dumaresq as they pertain to the performance of her duties … since … August 25, 2014.”

PDE denied the request as insufficiently specific under Section 703 of the RTKL. On appeal to the Office of Open Records (OOR), PDE further argued that if the request were determined to be sufficiently specific, that PDE should have an opportunity thereafter to review responsive records for redaction.

OOR held against PDE on all counts, and determined that PDE had not established that any exemption applied to the yet-to-be-identified records.

The Court’s Decision

Among the issues presented by PDE on appeal to the Commonwealth Court were the insufficient specificity of the request, and a claim that OOR erred in ordering production of the records without allowing PDE an opportunity to review and apply applicable exemptions.

The Commonwealth Court addressed only whether the request was sufficiently specific to require a response.  Thus, the question remains for another day, whether an agency must identify applicable exemptions when a request is denied, to preserve the ability to redact its response if disclosure of records is ordered on appeal.

The decision establishes a three-part balancing test to determine whether an agency must respond to a broadly-worded request:

  • First, the subject matter of the request must identify the transaction or activity related to the requested record.  Thus, where a request is for “all” of something, it must provide a context to narrow the agency’s search for responsive records.
  • Second, the scope of the request must identify a discrete group of records in some way.  Thus, a request for all emails of an individual or all records regarding a specific type of agency activity or transaction is considered sufficiently specific.
  • The third prong, the timeframe for which records are sought, remains the least clearly defined aspect of the test.  The Court indicated that determining whether a timeframe is narrow enough depends on how specific the subject matter and scope of the request are.  In this part of the opinion, the Court reviewed previous, seemingly disparate opinions, in an attempt to establish a framework for review.  For example, a request for a very specific type of record over a 4-year span of time is considered specific.

In contrast, a request for all emails over a 4-year span of time is not specific, where the request does not define a subject matter.

Where the request is very specific, it may not be necessary to identify a timeframe at all. The Court noted that a short timeframe is sufficient to render a very broadly-written request only in “extraordinary circumstances,” referring to a 2012 decision in which a request for all school board emails sent or received in a thirty-day period was deemed sufficiently specific.

Bottom Line

The procedure to determine whether a broadly-worded request is sufficiently specific is now somewhat clearer, as school districts, community colleges, and other public agencies can rely on the three-part test set forth in this opinion.  There is still not, and may never be, a bright line rule for rejecting requests for “all” of a class of records.  Public agencies should seek guidance from their solicitors where the balancing test does not provide a clear course of action for responding to such requests.

If you have any questions, contact your legal counsel or one of the education law attorneys at KingSpry.   


School Law Bullets are a publication of the school law attorneys of KingSpry’s Education Law Practice Group. John E. Freund, III, is our editor. The article is meant to be informational and does not constitute legal advice.