It seems easy enough to appeal an agency’s denial of your request to the OOR, and it mostly is. There’s an online appeal form designed for folks not represented by lawyers, and it raises every possible legal ground for your appeal so that you don’t need a law degree or access to a legal research database to figure out what you should be arguing. I will always recommend that you use that form.
But there’s one important field on that form that should probably come with a disclaimer, and it currently doesn’t.
The “records at issue” field is where you define for the OOR which records are at issue in your appeal. As you stare at the small box on the form it might not be readily apparent that it’s a “speak now or forever hold your peace” sort of moment but-- it is.
In Adrian Amara v. West Manchester Township Police Department, a requester argued that “the appeal should include language from the Request that was not included on the appeal form.”[1] The appeals officer disagreed:
“The Requester specifically stated on his appeal form the records at issue, and also included an additional page describing the records he was appealing. Nowhere on the appeal form, or on the additional page, did the Requester indicate that he was contesting records related to ‘documentation concerning why Brukhart is no longer affiliated with the York County Drug Task Force/York Regional Opiate Collaborative.’ Therefore, this Final Determination will not address this issue further, as the Requester did not appeal those records.”
In other words, if the records you want aren’t included in that text box or any additional attached pages, you won’t be able to get those records on appeal, even if they were included in your original request. This is a pretty standard rule for judicial appeals, as it's difficult for a judge to rule unless he or she knows exactly what you're asking for, at the outset. But the relative informality of an OOR appeal might not give you the impression that you have to preserve these arguments at that specific stage, so it's very important to be aware of this fact.
So what do you type in the box? Here’s what you might say to be safe: “All of the records at issue in my original request, are also at issue in my appeal.”
To be sure, this isn’t the most efficient way of handling the situation. If you are absolutely SURE that you either don’t want some records, or you already have them in your possession, then of course you can and should exclude them. But if the agency has promised you records and you haven’t actually received them, or if you think there may be other issues related to those records that you would like the appeals officer to look at, it’s safer to include them and weed them out later.
You can always narrow your appeal, but you can’t expand it once you’ve filled out the form.
[1] OOR Dkt. AP 2020-1466, 2021 PA O.O.R.D. LEXIS 89, *3 n. 2.
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.
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