Failure to Address the Request to the Open Records Officer (Section 703 of the RTKL) – Invalid Requests

While Section 703 of the Right to Know Law (“RTKL”) authorizes a requester to submit a request in person, by mail, by e-mail or facsimile, the requester must generally address the request to the agency’s open records officer or the request is invalid

In Commonwealth, Gaming Control Board v. Office of Open Records, 103 A.3d 1276 (Pa. 2014), the requester sent an email to the press aide for the Gaming Control Board (“Board”) requesting copies of communications between the Board and several applicants for gaming licenses and other records.  The email did not reference, in any way, the Board’s open records officer.  The press aide did not forward the request to the Board’s open records officer.  After five business days, the requester deemed his request denied an appealed to the Office of Open Records.  The OOR and Commonwealth Court ruled that the email was a proper RTKL request.

The Supreme Court reversed.  Section 703 of the RTKL provides, in part, that: “A written request must be addressed to the open-records officer . . . .”  The Court interpreted this sentence of Section 703 as mandating that a requester address their RTKL request to the agency’s designated open-records officer.  If a requestor fails to do so, the Court held that the request is invalid, the agency is not obligated to respond and the requester has no right to appeal. 

It is important to note that a requester does not need to identify the agency’s open records officer by name.  Instead, the request must only be “generally” addressed to the open records officer.  In other words, the requester must include (or otherwise make) some positive indication that the intended recipient of the written request is the agency’s open-records officer.  This can be accomplished by identifying the open records officer by name or title, by sending the request to the officer’s specific email address or fax number or by citing to or otherwise expressly referring to the RTKL.   

Accordingly, while the onus is on the requester to generally address requests for records to the open records officer, this burden will be met in all but the rarest of circumstances and it is risky to ignore an improperly addressed request for information. 

One way to avoid uncertainty is to insist that requests be submitted the agency’s RTKL Request Form or the OOR’s Standard Request Form. If a request is submitted on that form, then it is a RTKL request.  If not, as discussed in our previous post, the agency should immediately deny the request and insist that the requester submit an actual RTKL request.  This process will eliminate confusion and uncertainty as to whether a submission includes a “positive indication” that the intended recipient is the open records officer.

If you have any questions or comments, please do not hesitate to contact Chris Voltz or any of the other Municipal and School Attorneys at Tucker Arensberg, P.C.