Joy is an attorney in Obermayer’s Transparency Department. She represents media companies, contractors, developers, independent journalists, corporations, public and private partnership participants, and citizens, helping them either access public information that is...Read More by Author
The #1 Mistake of Request Drafting (Pennsylvania)
When filing a Right-to-Know Law request in Pennsylvania, there are a number of things a requester has no control over— such as whether the agency has a record or not, whether the record is related to an investigation, or any other surrounding factor that might prohibit you from obtaining those records.
As a requester, or requester’s counsel, one of the few things that you do have complete control over is drafting. And getting it right at the first stage is crucial, especially when you want your records quickly.
In Pennsylvania, from the day you file your Right-to-Know Law request, to the day the Office of Open Records issues its Final Determination, the typical timeframe is two months, assuming that you don’t agree any extensions of time. Many requesters arrive at the end of that two-month period and discover that the omission or addition of a few words would have made the difference between a grant and a denial. This is an incredibly painful realization, and it’s 100% avoidable.
Many inexperienced requesters expect to be able to modify their request during the process. Unfortunately, generally, you’re stuck with the language you used in your original request. See McKelvey v. Office of Attorney General, 172 A.3d 122 (Pa. Commw. Ct. 2017) (“Once a RTKL request is submitted, a requester is not permitted to expand or modify the request on appeal.”)
So with that background, let’s dive into the #1 mistake a requester can make in drafting a request. The Right-to-Know Law requires that a request be “sufficiently specific,” so that the agency can “ascertain” which records are being requested. See 65 § 67.703. In plain speak, this means that the request has to be written clearly enough that the agency can figure out what you’re asking for. In other words, the request must be “specific.”
While Section 703 seems straightforward enough, there are more than fourteen landmark Commonwealth cases interpreting specificity, creating a legal framework that requires more than an intuitive read of Section 703 to be able to succeed. The Commonwealth Court developed a “three-pronged test” for specificity, with added weight given to the first prong (subject matter)—but, as the Court cautioned later— no prong is dispositive. While appeals officers and judges end up relying on their informed “gut” to determine whether a request is or is not specific, there is one absolute no-no that can help you stay out of the danger zone.
“Any and all.” For most lawyer-requesters sitting down to write their first request, this phrase almost types itself. Most lawyers are used to drafting interrogatories and requests for production, and they bring that mentality to these requests, hoping to cast a wide net. Surprisingly, citizen-requesters often use this phrase in an attempt to sound lawyerly.
In Pa. State Police v. Office of Open Records, the Commonwealth Court held that the portion of a request seeking “any and all records, files or communications” related to vehicle stops, searches and seizures was insufficiently specific under Section 703 of the RTKL, and that only the portion of the request seeking a particular type of document–manuals related to vehicle stops, searches, and seizures–was sufficiently specific. 995 A.2d 515, 517 (Pa. Commw. Ct. 2010).
Ever since then, Commonwealth and local agencies have argued that any request containing the phrase “any and all records” is not sufficiently specific, even when the requester is seeking records about a very specific subject matter, for a very short time period. Based on that case, most of those arguments succeed. But see Winklosky v Pa. Office of Admin., OOR Dkt. AP 2018-1438, 2018 PA O.O.R.D. LEXIS 1391 (“Seeking all records related to a topic or topics does not necessarily make a request insufficiently specific; however, a request must provide enough specificity in its scope and timeframe to help guide the agency in its search for records.”)
Take, for example, a recent case from the OOR, involving a request for:
“All records and/or records of communication to and/or from the Superintendent regarding reopening plans for schools in the District, monthly, from June 1, 2020, to September 30, 2020, including those on personal computers and personal email accounts.”
Weir v. Wissahickon School District, OOR Dkt. AP 2021-0599, 2021 PA O.O.R.D. LEXIS 927, *9. The OOR held that this request was insufficiently specific, noting that because the request sought “records of communications,” this could be read to refer to both the communications themselves (emails, text messages, memos, letters, etc.) or information documenting that communication has occurred (communication logs or email metadata).
The Weir request was filed on February 5, 2021. The Final Determination was issued on June 2, 2021. This requester waited four months to be denied because she sought “all records and/or records of communication.” The fix is ridiculously simple. A request for “emails” would have completely changed the outcome, given the specificity in the remainder of the request.
From the day the request is filed, an agency has five business days and an optional 30 days to respond. With that single edit— assuming that the agency would have responded in good faith— this requester’s wait time would probably have been reduced by 75%, from four months to just one.
While a negative outcome can’t always be avoided, you can at least steer clear of a costly drafting mistake by identifying the exact sort(s) of record you want.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.