When Informal Communications Become Public Records: Pennsylvania’s Right-to-Know Law

Allyson N. Lonas, Esq., (717) 221-7954, alonas@tuckerlaw.com

Routine messages, informal exchanges, and internal communications created for internal use rather than public dissemination often form the core of the Pennsylvania Right-to-Know Law (“RTKL”) mediations, appeals, and litigation. This reality reflects a broader shift in how public entities and municipalities operate. Agency business is now conducted largely through email, text messages, and other electronic platforms that prioritize efficiency over formality. While these tools have changed how individuals communicate and manage day-to-day operations, they have not altered the statutory obligations imposed by the RTKL.

As a result, informal electronic communications frequently become central to RTKL requests. These records often provide documentation of agency decision-making and operations, even where no formal report, memorandum, or policy exists. Notably, the prevalence of electronic communications has, in turn, reshaped the importance of the RTKL’s good-faith search requirement.

Under Section 901 of the RTKL, in response to a request for records, “an agency shall make a good faith effort to determine if . . . the agency has possession, custody, or control of the record[.] 65 P.S. §67.901. The RTKL does not define the term “good faith effort,” however, the Commonwealth Court has outlined the elements of a good faith search.

The Commonwealth Court noted that an Agency Open Records Officer (“AORO”) has a duty to:

(1) Advise all custodians of potentially responsive records about the request;

(2) Obtain all potentially responsive records from those in possession of the potentially responsive records;

 (3) Contact agents within its control, including third party contractors; and

 (4) Review the records and assess their public nature. It is the open-records officer’s duty and responsibility to both end an inquiry to agency personnel concerning a request and determine whether to deny access. 

Uniontown Newspaper, Inc. v. Pa. Dep’t of Corr., 185 A.3d 1161 (Pa. Commw. Ct. 2018) aff’d, 243 A.3d 19 (Pa. 2020).

Conducting a good faith search can be onerous, particularly for agencies operating under significant resource constraints, but if a good faith search is not reasonably conducted to uncover all relevant responsible records in its passion, custody, or control, an agency can find themselves in a costly appeal before the Pennsylvania Office of Open Records (“OOR”).

In sum, an agency must show that it has conducted a reasonably calculated search to uncover all relevant documents in good faith by officials or employees with knowledge of the records and the search for the records.

Similarly, the RTKL places the burden of proof on the agency to establish that a record is exempt from disclosure. The RTKL encourages access to public records, regardless of the medium or informality of the communication, and places the burden on an agency to demonstrate “by a preponderance of the evidence,” that records are exempt from public access. 65 P.S. §67.708(a)(1). An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §67.708(b). Notably, an agency cannot rely on conclusory statements to sustain its burden of proof. See Officer of the Governor v. Scolforo, 65 A.3d 1095, 1103 (Pa. Cmwth. Ct. 2013) (“[A] generic determination or conclusory statements are not sufficient to justify the exemption of public records).

Specifically, if a RTKL request is denied, it must include, among other things, “specific reasons for the denial, including a citation of supporting legal authority.” 65 P.S. §67.903. When agencies respond to requests by asserting multiple exemptions, or by advancing generalized denials, those responses often undermine the agency’s position on appeal.

Accordingly, while electronic and informal communications are becoming increasingly more popular, the RTKL still imposes statutory requirements that agencies must abide by to comply with the Pennsylvania Right-to-Know Law.

Reprinted with permission from the February 10, 2026, issue of The Legal Intelligencer. © 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.