Commonwealth Court: Gaming board wrong on open records stance
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A deeply divided Commonwealth Court has ruled that public-records requests are still governed by the Right-to-Know Law even if they're not submitted on the designated agency form or to the proper agency officer.
In so ruling, by a 4-3 count, the court affirms a decision by the state's Office of Open Records, which found that the Pennsylvania Gaming Control Board had improperly ignored a request for records that was sent to the agency's communications office via email -- rather than to its open records officer using the designated request form.
Judge Mary Hannah Leavitt, writing for the majority, said the Legislature's intent was for state and local agencies to "presume that written requests for records are Right-to-Know requests."
"A written request for records sent to the wrong person in the agency must be forwarded to the open records officer," she wrote. "If a written request does not comply with the agency's policy for such requests, the open records officer in the agency must so notify the requester of this fact so that the requester can resubmit the request."
Judge Leavitt was joined by Judges Patricia A. McCullough, Robert Simpson and Bonnie Brigance Leadbetter, who was president judge at the time.
But Judge Dan Pellegrini, who is now president judge, issued a strongly worded dissent that was joined by Judges Renee Cohn Jubelirer and Bernard L. McGinley.
"Because the majority's holding would make an unaddressed request written on the back of a brown paper bag and given to a PennDOT plow driver by the side of the road on a snowy winter night a valid Right-to-Know Law request, I respectfully dissent," Judge Pellegrini said.
In Pennsylvania Gaming Control Board v. Office of Open Records, according to Judge Leavitt, James D. Schneller, a member of Eastern Pennsylvania Citizens Against Gambling, sent an email to Catherine Stetler, who works in the board's Office of Communications, requesting copies of "communications" between the board and a number of gaming license applicants, as well as copies of the financial information each applicant provided.
Ms. Stetler did not respond to the request or forward the request to the board's open records officer. After five business days without a response, Mr. Schneller considered his request "deemed denied" under the law and appealed to the Office of Open Records, Judge Leavitt said.
Mr. Schneller argued that the board had improperly denied his request, but the board contended that he had no right of appeal because he never sent a valid request to begin with, according to Judge Leavitt.
The board maintained that it had no duty to respond to the request since it had not been sent in accordance with its "Right to Know Policy and Procedure," which requires requests be submitted to the open records officer on the form available on the board's website, Judge Leavitt said.
But the Office of Open Records said an agency cannot ignore requests that don't comply with their policies or procedures, citing Section 703 of the Right-to-Know Law, which requires that "employees of an agency shall be directed to forward requests for records to the open records officer," according to Judget Leavitt.
The Office of Open Records determined that the board's failure to respond constituted a denial and directed it to turn over the records since the agency offered no defense for denying Mr. Schneller's request, Judge Leavitt said.
The board then appealed to the Commonwealth Court, which sided with the Office of Open Records.
Judget Leavitt did vacate the portion of the Office of Open Records' determination directing the board to turn over the request records and instead remanded Mr. Schneller's request to the board for review.
Dena Lefkowitz, chief counsel for the records office, said she thought the ruling was "a really positive decision for citizens."
"Citizens were meant to be able to use the Right-to-Know Law without having to go to court or hire an attorney to get records," she said.
But the board's chief counsel, R. Douglas Sherman, said the ruling may actually make it more difficult for the public to obtain records. "It overburdens a system that is working, for the most part, very well," he said, stressing that the board's opposition to the ruling is not an attempt to shield its records from the public.
First Published June 25, 2012 12:00 am