TIPS FOR PRACTICE AT THE OOR

To provide some insight for lawyers new to the RTKL sphere, I’m sharing some nuts-and-bolts insights for practicing before the OOR. The disclaimer, of course, is that the OOR can change its practices at any time, and you should always check to see if OOR guidance is available.


The OOR is currently working on regulations that address form. Additionally, a practice guide is available here, which explains the substance of what you need to file and how to file it.


In many other tribunals, a filing can be dismissed for failure to comply with a formatting rule. In comparison, the OOR is a great administrative agency to work with as they are flexible, reasonable, and will focus on the substance of your pleadings.


1. DON’T FILE AN “ENTRY OF APPEARANCE”


Attorneys do not need to send a formally captioned “entry of appearance” in the style that you would use for a court. A simple email stating, “I represent X” is sufficient, or you can include that information on the appeal form if you file on behalf of a requester.


2. WHAT PLEADINGS SHOULD AN AGENCY FILE?


Agencies need to file (1) legal argument explaining why the request was denied and (2) an attestation/affidavit. I recommend using an attestation, as it doesn’t need to be notarized. Just make sure you include this language:


“I, [INSERT NAME], hereby declare, pursuant to 18 Pa.C.S. § 4904, that the following statements are true and correct based upon my personal knowledge information and belief:”


Your argument can just be included in the body of an email or in a separate document. Keep it concise and to the point. No special caption or header is required. The most common form for agency argument is a letter attached to an email.


Although the purpose of this post is to address procedural issues, I can’t help but add that your evidence should always explain “how” or “why” something is exempt, and not just repeat the rule or conclude that the information is exempt without an explanation. Do not simply copy OOR template affidavits without adding in your facts. The OOR will catch these errors and insist on proper evidence.


3. WHAT PLEADINGS SHOULD A REQUESTER FILE?


The agency has the burden of proof, so the requester isn’t required to file anything. Many times, a requester files nothing but the appeal form and wins.


You should consider sending argument when you are aware of a particular case that addresses your legal position, or when there are facts involved that the agency didn’t raise or address. You should inform the OOR if your case is of public significance. And, if you already know about these things, it’s best to go ahead and include them in your appeal filing.


Keep in mind that the appeals officer has to read everything you send. You do not need to send the same argument twice. You do not need to provide the appeals officer with basic restatements of the law (e.g., “the agency has the burden of proof”). You do not need to write a flowery treatise on the purpose of the RTKL. You do not need to send multiple arguments. Keep it straightforward and as direct as possible.


4. HOW DO EXTENSIONS WORK?


Agencies and the OOR are at the mercy of the Requester. 65 P.S. § 67.1101(b)(1). There is one exception to this rule, and that is the due process extension. Ever since the Commonwealth Court’s holding in Pa. Tpk. Comm'n v. Elec. Transaction Consultants Corp., 230 A.3d 548, 551 (Pa. Commw. Ct. 2020), the OOR has extended matters when due process requires it and the requester otherwise refuses to provide additional time or doesn’t respond to the extension request.


If you are a Requester, you can get an extension just by asking and noting that you don’t object to extending the Final Determination deadline date as well.


If you are an agency, get the Requester to agree. If the Requester won’t agree, explain the connection between the additional time you need and your due process right to be heard. You can point out the prejudice to your client if the extension isn’t granted.


5. HOW DOES CONSOLIDATION WORK?


Just ask for it. Often the appeals officer will consolidate without a request if the parties are the same and the issues are similar.


6. DO THEY REALLY HAVE THAT AUTHORITY?


The OOR is a quasi-judicial tribunal with full authority to rule on RTKL issues. Yes, you have to send evidence when they request it.[1] Yes, you have to participate in in camera review.[2]


Ignoring the OOR's request for clarification or evidence can lead to a bad faith finding by a reviewing court. The Commonwealth Court has held that absent justification, an agency's failure to submit evidence to the OOR means that they can't submit it to a court later, even though the standard of review is de novo.[3]


7. WHAT IF I HAVE ADDITIONAL QUESTIONS?


Reach out to the OOR directly to ask questions.


You must include your opponent on any questions you have about your case. It's okay to ask your appeals officer a question about the case, but only if you copy your opponent so that the communication is not ex parte. If you send a communication to the appeals officer without copying your opponent, they may forward it to the opponent so that the other side has a chance to respond.


If you have a general question about the RTKL or procedure, you can reach out to the OOR’s training and outreach contact (just call the general number and let them know you have a general RTKL question). But if you do that, the question shouldn’t be about the specifics of your case, but rather about form and practice or other general issues.


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] “[OOR] appeals officers are empowered to develop the record to ensure Chapter 13 courts may perform appellate review without the necessity of performing their own fact-finding.” Twp. of Worcester, 129 A.3d at 58 (citing Pa. Dep't of Educ. v. Bagwell, 114 A.3d 1113, 1121 (Pa. Cmwlth. 2015)); see also 65 P.S. § 67.1302 (establishing this Court as a “Chapter 13” court with appellate jurisdiction in RTKL appeals). [2] Commonwealth v. Ctr. Twp., 95 A.3d 354, 367 (Pa. Commw. Ct. 2014)

[3] Although a Court may expand the record on appeal, “in the ordinary course of RTKL proceedings, receipt of evidence will occur at the appeals officer stage and a reviewing court will defer to the findings of the appeals officer." Twp. of Worcester v. Office of Open Records, 129 A.3d 44, 59 (Pa. Commw. Ct. 2016) (internal citations and quotations omitted); Levy v. Senate of Pa., 94 A.3d 436, 442 (Pa. Commw. Ct. 2014).



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