Department of Transportation v. Drack
Commonwealth Court of Pennsylvania
No. 1030 C.D. 2011
March 27, 2012
The Commonwealth Court held that an agency must issue a final response to a Right to Know Law (“RTKL”) request within the time limits established under the law and cannot refuse to provide requested documents because the requester has not paid for records he previously requested.
In addition, the court ruled that an agency can waive the attorney-client privilege by failing to raise it as a ground for denying a RTKL request.
Background
Earle Drack requested records from the Department of Transportation (“DOT”) pursuant to the RTKL.
DOT responded by sending Drack a letter stating that it would need the additional 30 days provided by the RTKL to undertake a legal review of his request. After 30 days, DOT denied the request because Drack had failed to pay $16.38 for past requests he made to DOT.
DOT characterized this denial as an “interim” response and stated that it would make a final determination on his latest request once the payment was made.
Drack appealed to the OOR.
After several rounds of briefing, the OOR ordered the disclosure of the records. It stated that the RTKL does not allow an agency to “refuse to process a request or identify grounds for withholding records prior to payment of fees unless the copy fees exceed $100.”
The OOR determined that DOT did not provide substantive reasons for its denial. Therefore, it was precluded from raising additional objections.
DOT then appealed to the Commonwealth Court.
Commonwealth Court Decision
The court affirmed the OOR’s final determination.
The court held that the RTKL does not provide for “interim” responses. An agency must issue a final response within the times mandated by the RTKL, and that response must address all of the reasons for denying the request.
The court also rejected DOT’s argument that it could decline to provide a substantive response to a RTKL request in light of the requester’s failure to pay amounts he owed for the agency’s compliance with prior requests. The law allows an agency to withhold requested records if a person does not pay for them, but it does not allow an agency to refuse other requests by the same person because he had not paid for previously requested records.
Finally, the court rejected DOT’s argument that the requested records were covered by the attorney-client privilege.
The court ruled that DOT waived this issue because it did not deny Drack’s request on that ground.
It also rejected DOT’s argument that its open records officer could not waive the agency’s privilege, noting that DOT first told Drack that it needed to undertake a legal review, but then failed to raise the attorney-client privilege as a basis for denying his request after that review.
▪ March 27, 2012 — Commonwealth Court Opinion — No. 1030 C.D. 2011