In this appeal from a final determination of the Office of Open Records, the Commonwealth Court was asked to determine whether an agency’s failure to present evidence in support of their claimed exemption from disclosure under the Right-to-Know Law (RTKL), amounted to a default determination requiring disclosure. In finding that it did not, the court held that where the plain language of a request falls within an exemption, additional evidence is unnecessary.
Requestor’s neighbor filed a complaint with the Pennsylvania Game Commission asserting a tree stand on Requestor’s property was too close to his property. Requestor then submitted a request for copies of the report, and “anything that may have been put on the record of the incident.” The Commission denied the request, asserting the records related to a noncriminal investigation and were exempt from disclosure. Requestor appealed the decision to OOR. The Commission submitted an “unsworn position statement” to the OOR in which it repeated its earlier claim to an exemption. OOR determined this “position statement” did not qualify as evidence, meaning no evidence had been submitted by the Commission and thus the Commission had failed to sustain its burden of proving the records were exempt. OOR then ordered the records disclosed to Requestor. The Commission appealed.
On appeal, the Commonwealth Court reversed. The court concluded that OOR had misconstrued its prior holdings to establish a new standard whereby the failure of an agency to submit affirmative evidence was deemed a default that automatically required disclosure of the requested records. Instead the court found that the plain language of the request indicated the documents should not be disclosed under the noncriminal investigation exemption. While the Commission should have provided a sworn affidavit, the court opined, failure to do this did not result in a default finding that the records were not exempt.
Click here to read: Pa, Game Comm’n v. Fennell, 1104 C.D. 2015 (Pa. Commw. Ct. Oct. 26, 2016).
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