From Fort Lee to Bowling v. Office of Open Records
In New Jersey, the Christie administration is learning the hard way about the power of open records laws. Reporters broke the "Bridgegate" story after initially obtaining government emails through a request for public records. These included the now infamous exchange between a Christie aide and a Christie political appointee agreeing that it was "time to create some traffic problems in Fort Lee," which triggered days of commuter havoc there as payback against the mayor of Fort Lee.
Every lawyer dreams of finding such priceless proof of conspiracy. Now scandal may have crippled a front-runner for a presidential nomination and his opponents—legal and political—can exploit the resulting paralysis and harm to Gov. Chris Christie's credibility. The simple act of sending a freedom of information request sparked this conflagration.
On this side of the Delaware River, in its August 2013 decision in Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013), the Pennsylvania Supreme Court multiplied the power of Pennsylvania's 2008 Right-to-Know Law, 65 P.S. §§ 67.101 et seq., as a weapon against similar overreaching by state and local officials. The Supreme Court accomplished this by dramatically expanding the standard and scope of review of requests for public documents under the RTKL—what evidence a court can consider when it hears an RTKL appeal, and how the court weighs it.
The Supreme Court held that the standard of review is de novo, nondeferential and independent, and that the scope of review is plenary. As a result, aggrieved citizens and businesses can request an evidentiary hearing when the government denies access, rather than having a court simply read a cold administrative record. They can also ask the court to reevaluate the evidence instead of just accepting the findings of the bureaucrat who denied the request for records.
To put Bowling in context, making an RTKL request is straightforward and inexpensive. A legal resident of the United States, including a corporation (or counsel), sends a request for records to a local government body or a state agency. The state Office of Open Records has a uniform request form to facilitate this, although verbal requests are permissible.
As with any discovery request, simple and clear language is less objectionable. However, an agency cannot limit the number of records sought or require disclosure of the requester's motive. Critically, the RTKL expansively defines "records" as "information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document." Not many government-written materials escape the broad scope of this description.
The agency has five business days to respond, although it can self-grant an extra 30 days. An agency can only deny a request on the ground that it is allegedly disruptive if there are repeated requests that impose an unreasonable burden. Generally, appeals from denials lie with the OOR, which appoints a specially trained appeals officer, who is a lawyer. The requester must initially explain why the record sought is public and address the agency's grounds (if any) for denying the request.
The agency may respond, and the OOR appeals officer may, but need not, conduct an evidentiary hearing. The appeals officer has 30 days to issue a written decision, which is a final, appealable order. Further appeals lie with the county court of common pleas where the request was to a local agency, or to the Commonwealth Court where the request was to a state agency.
Brian Bowling, a reporter from the Pittsburgh Tribune-Review, requested access to invoices and contracts from a state agency, the Pennsylvania Emergency Management Agency. These records related to purchases using grant funds from the federal Department of Homeland Security. PEMA provided the documents but redacted the identities of all of the recipients of the goods and services it had bought. PEMA cited reasons of homeland security, national defense and public safety. (Perhaps not insignificantly, the equipment consisted not only of obviously sensitive materials like biohazard devices, but also bungee cords, thus suggesting that PEMA's redactions were indiscriminate, and that PEMA thereby turned itself into an easy target for an appellate reversal.)
Bowling appealed to the OOR. After reviewing memoranda from Bowling and PEMA, but without holding a hearing, an OOR appeals officer affirmed. Because PEMA is a state agency, Bowling then filed a petition for review in the Commonwealth Court. The OOR and PEMA argued for the deferential review typically afforded the decisions of administrative agencies. This is, basically, a "government knows best" test amounting to little more than a rubber stamp.