Many “bad faith” arguments fail at the OOR level. Sometimes, there’s just…no evidence of bad faith. But sometimes there might be, and the evidence isn’t properly presented, or isn't presented at all.
First, you need to understand the legal limitations of the OOR. The OOR can find that an agency acted in bad faith, as in, they can say on the record, “We think this agency acted in bad faith.” That said, the ability to award fees or otherwise sanction the agency belongs to a reviewing court.[1]
But the OOR’s opinion that bad faith occurred can be very helpful, in that it provides analysis for a reviewing court and is what lawyers call, persuasive precedent (meaning that a reviewing court doesn’t have to agree with the OOR, but they may be persuaded by the OOR’s findings).
So how do you get that crucial OOR finding that can persuade a court to find bad faith? During the appeal, watch out for these egregious acts that signal bad faith.
Notice that with the exception of Numbers 3, 4, and 5, most of these acts or omissions will happen during the OOR appeal. This means that you may want to wait to argue bad faith until near the end of the OOR appeal, unless it's clear earlier on.
1. IGNORING THE OOR’S REQUESTS FOR CLARIFICATION
When the OOR emails an agency during an appeal and asks a question, and the agency refuses to answer the questions or respond, that can be evidence of bad faith. [2]
2. IGNORING APPEAL DEADLINES
When an agency ignores the deadlines imposed by the OOR and the RTKL during an appeal, that can be evidence of bad faith. [3] Notice that I said ignoring deadlines “during an appeal.” Agencies do sometimes ignore requests before they are appealed. That is usually not sufficient evidence of bad faith. Instead, the OOR just treats that as a “deemed denial,” which you can appeal. If they consistently ignore the OOR during the appeal, that’s when you are in solid “bad faith” territory.
3. REFUSING TO SEARCH FOR RECORDS
Evidence demonstrating that an agency is refusing, or has refused, to search for records can support a finding of bad faith.[4] In one particularly bad case, an agency failed to look for records until after litigation had begun, resulting in massive fines and sanctions on the agency.[5]
4. WHEN AN AGENCY BASES ITS DENIAL ON UNLAWFUL REASONS
The Commonwealth Court has held that when a lawyer for the agency denies access by basing its denial on the identity of the requester and the presumed use of the records, that can be evidence of bad faith, as the RTKL doesn’t allow denials on either of these bases.[6]
5. WHEN AN AGENCY FAILS TO CITE ANY LEGAL AUTHORITY IN SUPPORT OF ITS REASONS FOR DENIAL, AND/OR MISREPRESENTS LEGAL AUTHORITY
The Commonwealth Court has held that when an agency fails to cite to any legal authority in support of its reasons for denial, that can be evidence of bad faith, as the RTKL requires them to do so. [7] In the same decision, the Court stated that the Agency lawyer’s “representation of binding precedent and the state of the law in this Commonwealth throughout these proceedings was deficient at best,” further supporting the Requester’s bad faith claim.
6. WHEN AN AGENCY SAYS IT DOESN’T HAVE RECORDS, AND PROVIDES THEM LATER
The Commonwealth Court has held that when an agency submits an affidavit saying that no records exist, and then later provides responsive records—this can be evidence of bad faith.[8] The Court said: “When an agency responds to a RTKL request, the requester and later, the adjudicators, rely on the agency's representation as to whether there are any responsive documents. In this case they did so, only to find out almost two years later that there were thousands of responsive documents that had not been discovered or provided to the Requester.” [9]
7. IGNORING THE EXISTENCE OF THE OOR OR THE RTKL
In one particularly infamous case, the OOR noted that in a fourteen-month period, an agency invoked a thirty-day extension but didn’t respond to the Request or participate on appeal—twelve times. [10] The OOR found, not surprisingly, that the agency was acting in bad faith.
Keep in mind that bad faith is a finding that is reserved for extraordinary cases. It isn't applied in cases when the agency isn't responding as quickly as you would like, or when there is some other minimal delay or issue with the agency's response.
But if you have experienced one egregious episode of any of these issues, or smaller, multiple issues, then raising these case law examples at the OOR might assist you in winning your bad faith argument.
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 joy@ramsinghlegal.com. Joy Ramsingh is an open records, open meetings, appellate advocacy lawyer and the founder of her virtual law office, Ramsingh Legal.
[1] Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) ("As we observed, Section 1304 of the RTKL permits a Chapter 13 court to award costs and attorneys' fees, and to impose sanctions, after the court, not the appeals officer, makes relevant factual findings and legal conclusions.... Section 1304(a)(1) requires a court to make factual findings regarding whether an agency denying access to records acted "willfully or with wanton disregard" or "otherwise ... in bad faith."); Mission Pa., LLC v. McKelvey, 212 A.3d 119, 138 (Pa. Commw. Ct. 2019) aff'd in part, 255 A.3d 385 (Pa. 2021) ("the statute is clear that only a court may make a finding regarding an agency's bad faith”). [2]Towne v. Pittsburgh Water and Sewer Auth., OOR Dkt. AP 2021-0292, 2021 PA O.O.R.D. LEXIS 307. [3]Id. [4] See id., see also Office of the District Attorney of Phila. v. Bagwell, 155 A.3d 1119, 1142 (Pa. Commw. Ct. 2017) (finding that a trial court did not err in finding that an agency acted in bad faith when it "failed to conform to the duties imposed by the RTKL in several respects," including the failure to make a good faith search for responsive records). [5] Uniontown Newspapers, Inc. v. Pa. Dep't of Corr., 243 A.3d 19, 25 (Pa. 2020). [6] Office of the District Attorney of Phila. v. Bagwell, 155 A.3d 1119, 1142 (Pa. Commw. Ct. 2017). [7] See id., see also Hayden v. City of Reading, OOR Dkt. AP 2018-0244, 2018 PA O.O.R.D. LEXIS 402 (the agency failed to provide factual or legal support for denying the request). [8] See Chambersburg Area Sch. Dist. v. Dorsey, 97 A.3d 1281, 1292 (Pa. Commw. Ct. 2014) [9] Id. [10] See Hayden v. City of Reading, OOR Dkt. AP 2018-0244, 2018 PA O.O.R.D. LEXIS 402.