PNA, Oct. 12

Pa. Commonwealth Court rules on two Right to Know cases

By Teri Henning, General Counsel
Pennsylvania Newspaper Association

On Oct. 12, the Pennsylvania Commonwealth Court issued decisions on two pending Right to Know Law cases.

First, in Times Leader v. Hazleton Police Civil Service Commission, No. 2518 C.D. 2005 (Pa. Cmwlth. 2006), the Court ruled that the names, test scores, and rankings of police officers who took the civil service examination are public records. The ruling was consistent with a 1978 case on this issue, where the Commonwealth Court ruled that a civil service exam booklet, written examination papers, and scores of examinees were public records. Marvel v. Dalrymple, 393 A.2d 494 at 497 (Pa.Cmwlth. 1978).

In ruling that the names of the candidates and their scores are a matter of public record, the Times Leader v. Hazleton Court goes farther, however, and expressly rejects Hazleton’s arguments that disclosure of the scores would harm the individual candidates’ personal security and reputation, or that they would reveal information about an agency’s investigation.

In Van Osdol v. Department of Transportation, No. 2204 C.D. 2005 (Pa. Cmwlth. 2006), the Commonwealth Court ruled that PennDOT’s list of hazardous intersections and locations in Allegheny, Beaver, Washington, and Westmoreland Counties for the years 2002 through 2005, along with related annual progress reports and correspondence, were not public records under Pennsylvania’s Right to Know Law. The Court found that these documents did not meet the definition of “public record,” as they were not “accounts, vouchers or contracts” or “minutes, orders, or decisions” of the Department as those terms are used in the Right to Know Law.

Van Osdol had argued, among other things, that the records were public because they were submitted to the federal government in order to receive federal funding. He also argued that the documents were agency decisions, or closely connected to agency decisions, because they formed the basis for PennDOT’s decisions about which roads required repair. The Court disagreed, finding that Van Osdol had not met his burden of proving that the records fell into either category of “public record.”

This case highlights the difficulties that Pennsylvanians encounter when trying to access agency records. The records requested here would show the most hazardous intersections in these counties, as determined by PennDOT. Such information would undoubtedly be useful to every citizen in the affected communities. In denying access, the Commonwealth Court makes it clear that the burden of proving that an agency record is a “public record” is a difficult one to meet. In Pennsylvania, unlike the majority of states and the federal government, the burden of proving that a record is public is on the requester. In most other states and under federal law, an agency denying access has the burden of proving that a record is not public.

In denying access, PennDOT argued, among other things, that Van Osdol could not meet his burden because he could not point to any specific PennDOT decision that was directly connected to its hazardous intersection list. Again, this highlights the infirmities of Pennsylvania’s Right to Know Law. The agencies have all of the information (what documents they have, how they label and store them, how they use them in administering the public’s business), and the citizens have all of the burden.

The Pennsylvania Newspaper Association has launched a legislative initiative called "Brighter Pennsylvania" in an effort to improve access to public records and meetings in Pennsylvania. For more information, please visit www.pa-newspaper.org.

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