PA Office of Open Records Holds that Borough Cannot Fully Redact Non Responsive Entries in Legal Invoices

Christopher L. Voltz, Esq., cvoltz@tuckerlaw.com, (412) 594-5580

In Seman v. Baldwin Borough, AP 2023-00778, the Requester sought legal invoices related to a specific project.  In responding to the Request, the Borough completely redacted entries in the legal invoices that were not related to the project identified in the Request (i.e., non responsive entries) but did not redact entries that were related to the Request.  It did this because the responsive invoices contained multiple entries related to legal work performed for the Borough and most were not related to the project identified in the Request.  In other words, the Borough redacted non responsive entries so that the Requester could identify responsive information.

Historical Context

Previously, the OOR (Office of Open Records) had permitted such an approach.  In Hughes v. Exeter Township, AP 2019-2615, the OOR explained: “Generally, an agency may not redact “nonresponsive” information from responsive records. . . . However, such redactions may be permissible in situations where the unredacted information fully satisfies a request as written.”

However, in this case, the OOR held that an agency cannot claim non-responsiveness as a legal basis to redact a public record that the agency has decided to disclose. Citing Haverstick v. Pa. State Police, 273 A.3d 593, 599 (Pa. Commw. Ct. 2022); Smart Communications Holding, Inc. v. Wishnefsky, 240 A.3d 1014, 1019 (Pa. Commw. Ct. 2020); Scheinler v. Southern Lehigh Sch. Dist., AP 2021-1696. 2021 PA O.O.R.D. LEXIS 1923 (explaining that an agency may not redact non responsive information from responsive records); see also McCullough v. Newtown Township, AP 2023-0661, 2023 PA O.O.R.D. LEXIS 1138, heading 2.

Accordingly, the OOR concluded that while “there is a difference between redacting a record and withholding one in its entirety because it is not responsive, the Borough is not permitted to redact nonresponsive information from responsive records.” Citing Ference v. Sewickly Borough, OOR Dkt. AP 2020-0095, 2020 PA O.O.R.D. LEXIS 1879 (distinguishing withholding entire nonresponsive records and making redactions).

In this case, the Borough provided less redacted invoices of the nonresponsive entries during the appeal, so, despite the OOR’s ruling, it was not required to divulge any privileged communications contained in the invoices.  Even so, this case is an important reminder that nonresponsive information on responsive, public records cannot be redacted unless it is otherwise exempt from disclosure even if doing so makes it more difficult for the Requester to identify the information sought in the request.

For more information, contact Chris Voltz at (412) 594-5580 or click here for more information about Chris.