Updated: Mar 30, 2022
When I was at the OOR, many agencies filed “disruptive requester" arguments. Some of them might have fit the RTKL description of the term. But the agencies almost always failed to establish that the label applied because they were missing the proof required by the statute.
It makes sense for agency lawyers to focus on evidence relating to the requester's actions. But if all you present is evidence explaining what records they ask for and how often they ask for them, you aren't going to establish disruptive requester status.
The RTKL states:
An agency may deny a requester access to a record (1) if the requester has made repeated requests for that same record and (2) the repeated requests have placed an unreasonable burden on the agency.
I've seen decent arguments where an agency denied the requester as “disruptive” because the requester had asked for the same record three, four, five…maybe even ten times. Those agencies didn’t win that argument, even when they established the first portion of the test.
The statute requires an agency to establish not only that the same record has been requested more than twice, but also that these specific, repeated requests have placed an “unreasonable burden” on the agency. What is or is not unreasonable is a judgment call for the appeals officer, but many agencies didn’t send any evidence at all.
So, here’s a guide as to how to establish that you properly denied a requester for being “disruptive,” during your OOR appeal.
First, make sure everything you say is in the affidavit. Arguments and briefs are not evidence. Sworn statements are evidence.
Establish that the requests are for the same records. Multiple requests aren’t enough. It has to be multiple requests for the same record(s).
Establish that the requests have been repeated more than twice.
Establish that answering these requests has placed an “unreasonable burden” on your agency. You need facts here, so I would answer the following questions in your evidence:
How much time does it take to respond?
How much money does it cost to respond?
How much manpower does it take to respond?
And, the most important question of all:
How is this request more difficult to answer than typical RTKL requests?
In Office of the Governor v. Bari, the Commonwealth Court pointed out that just arguing budgetary and staffing restraints was insufficient. Every agency is constrained by a budget, some more than others. And every agency has to expend staff and/or attorney time for every request. The Court isn’t going to let this exception overtake the rule, which is that the same records can be requested more than once.
So make sure you include some facts explaining why responding to this request is extraordinarily hard, as opposed to a normal RTKL request.
Assuming that you can establish all of these things, and assuming that the burden is truly “unreasonable” in the eyes of an average person—you just might win your next disruptive requester argument.
 65 P.S. § 67.506(a)(1).  Borough of W. Easton v. Mezzacappa, 74 A.3d 417, 419 (Pa. Commw. Ct. 2013).  Office of the Governor v. Bari, 20 A.3d 634, 645 (Pa. Commw. Ct. 2011).
This blog is not intended to be legal advice, as the analysis might change depending upon your specific situation. For additional assistance, reach out to Joy Ramsingh, at firstname.lastname@example.org. Joy Ramsingh is an open records, open meetings, appellate advocacy lawyer and the founder of her virtual law office, Ramsingh Legal.