Updated: Mar 21, 2022
“Major” RTKL violations can be remedied fairly easily by good lawyering. These obvious errors can include a lack of due process, failure to produce records, or a bad judgment call about whether records are exempt. All of these are fodder for a proper appeal, and can be resolved with the right evidence and argument.
But every now and then I get a client who tells me that an agency routinely commits minor RTKL violations, and wants me to argue against those violations. Fixing minor violations can be tricky to outright impossible. Here are a few “minors” that I often see, that usually go unpunished because they are nearly impossible to prove:
1. The agency didn’t need 30 days to respond to the request, but they took it anyway
The RTKL requires an agency to handle a request within five business days of receipt. The options are (1) grant, (2) deny, or (3) extend for thirty days.
Under Section 902 of the RTKL, the agency can extend for a variety of reasons, the most common of which are the necessity for legal review (e.g., determine whether records are privileged or if any exceptions/exemptions apply); and the extent or nature of the request precluding response within the required time period (e.g., the size of the request precludes a timely response).
But more often than not, an agency invokes their thirty day extension automatically. Even when the information is already on their website. Even when the information is at their fingertips, or at least should be. Even when it’s clear that the record is public. This unjustified delay is technically a RTKL violation, as the law requires them to have a real reason for the extension.
But how do you prove it? The agency can say that they only have one employee, who works part-time (and sometimes that is truly the case). The agency can say that the open records officer didn’t know the information was online. The agency can say that the lock on their filing cabinet broke, and they couldn’t open it. Can you conclusively prove otherwise? Unless you work at that office, or have access to an email where the open records officer is bragging about her rampant, unjustified RTKL extensions— probably not.
2. The agency says no records exist, but you think they probably do
Many clients are shocked when I tell them that an agency can shrug and say, “we don’t have these records” and the OOR will accept it. But that is, in fact, what the law requires.
Of course, the affidavit has to say more than “we don’t have these records.” The agency has to search in good faith and then explain, in detail, why they don’t have the records. But it is theoretically possible that an agency could lie about that explanation, and there would be absolutely no way to tell.
Again, unless you have evidence to the contrary (the emphasis here is on the word “evidence,” as in, it has to be more than a hunch), the agency’s word usually stands, without further proof beyond its sworn statement. I’d like to think that the perjury penalties are enough to overcome the agency’s interest in doing the least amount of work possible, at least most of the time. But obviously, if the agency employees were sufficiently motivated, an affidavit could be falsified or fudged and no one would know.
3. The agency might be able to throw away their records
There’s no RTKL rule that an agency has to keep their records for a year, a month, or a minute.
This comes into play most often with video footage, which needs to be requested immediately because often, security systems will automatically overwrite or delete old footage. There’s no way to prevent the deletion of these records, except by filing a request as soon as possible after you have identified which records you want.
But if the agency has tossed the records before you send in your request— you may be out of luck.
Theoretically, you could win these fights with the right kind of evidence, assuming you can get it. But my advice is not to waste your time arguing a point that is impossible to prove.
Save your energy for the real fights, the situations where you have the evidence to put behind your hunches. Save the appeals officer from your diatribe about the agency’s rampant use of thirty day extensions, unless you have actual evidence establishing that they were not invoked in good faith.
Wasting your time on the fights you can’t win will only lead to frustration. Spend that time making a strong, concise argument about why the records you seek are public and should be available, instead.
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 email@example.com. Joy Ramsingh is an open records, open meetings, appellate advocacy lawyer and the founder of her virtual law office, Ramsingh Legal.