Washington Ave RTKL Request - status update
Some Background:
I (probably like many people in Philly) am wondering how the City’s plan to make safety improvements to Washington Ave got derailed so badly. I submitted a Right-to-Know Law request in February 2022 to try to find out why OTIS walked back what it had previously referred to as its “Final Design Decision”. Here’s what I requested:
RTKL Practice Tip: when you do a request like this, number the things you’re looking for instead of using bullet points. I should have done that!
I submitted the request on February 7, 2022. The City was entitled to 5 business days, plus 30 calendar days to respond. I filed an appeal after day 30, then the City’s lawyers told me they can’t use Boolean search terms on their e-mail server (so searching for “Washington Ave” brings up everything mentioning “Washington” which is used broadly, beyond just talking about the Ave) OR use document review software (this is actually horrific to imagine). So, I agreed to mediation to give them more time. I’m not a monster! Those are extremely difficult circumstances for a big document review.
Part of my request sought letters and petitions etc. sent in response to OTIS’s September 2020 announcement of the plan for a 3-lane layout. Here they are. I was shocked that this is all there was. But I know this doesn’t account for phone calls or community meetings, and documents alone can’t give you the full picture of this kind of city process.
I also received a large batch of responsive e-mails, with a bunch of redactions. Here are those emails:
In mediation, the City’s attorneys said the redacted text is primarily internal, predecisional deliberation material. The City also apparently had a few different attorneys reviewing documents and had no centralized list of emails that were withheld entirely, and to date they haven’t been able to tell me how many emails they simply withheld. I know they have technological limitations, but that is an objectively terrible practice.
Anyway, procedural yada yada, with respect to my requests for correspondence to and from OTIS, Councilmember Squilla, and Councilmember Johnson, we narrowed the issue down to whether the City’s substantive redactions of the 274 pages of emails & withholding some unknown number of emails entirely was proper. We concluded mediation and kicked it back to an Office of Open Records Appeals Officer who gave us the opportunity to submit briefs and who will issue a final determination in a few weeks.
And this is where it gets really interesting.
While this case was in mediation, I received an e-mail from another attorney, Dan Auerbach of Gamburg & Benedetto, tipping me off to a Common Pleas opinion in his own mandamus action to get emails from the Health Department. He lost the bigger case because his request was overly broad, but Judge Joshua Roberts wrote that the City’s Home Rule Charter creates a broader right of access than the RTKL.
This is a similar issue to Seder and a case I argued, Friedman I, both of which involved disclosure requirements in other Pennsylvania laws. The RTKL creates a baseline right to access, but other statutes (in those cases, the Public Utility Code) can create an additional disclosure requirement.
In Seder, a requester sought a copy of a tip letter sent to the Public Utility Commission alleging that a utility had violated its priority-ranking policy for restoring service after a snowstorm in October 2011. The PUC’s Bureau of Investigation and Enforcement began an informal investigation based on this tip letter, then settled with the utility. The Public Utility Code states in part, “whenever the commission conducts an investigation of an act or practice of a public utility and makes a decision, enters into a settlement with a public utility or takes any other official action, as defined in the Sunshine Act, with respect to its investigation, it shall make part of the public record and release publicly any documents relied upon by the commission in reaching its determination, whether prepared by consultants or commission employees, other than documents protected by legal privilege…” 66 Pa.C.S.A. 335(d). So even though a “tip letter” would typically be exempt as investigative material under the RTKL, the Public Utility Code requires that it be disclosed if the PUC relies upon it in an investigation that results in a settlement with a public utility. And the PA Supreme Court implicitly held that the OOR has the authority to order its disclosure. See Public Utility Commission v. Andrew Seder/The Times Leader et al., 139 A.3d 165, 167 (Pa. 2016)
So I included an argument that the Home Rule Charter requires the City to disclose all emails, even those they claim include “internal predecisional deliberations” which would otherwise be exempt under Section 708(b)(10) of the RTKL. I think this is a pretty good argument but it’s novel and I can’t guess what my odds of success with it will be before the OOR. As a second, but equally important, argument, I pointed out that the City simply hadn’t met its burden to establish by a preponderance of the evidence that its claimed exemptions apply. The affidavits it submitted in support of its position were conclusory, which is not sufficient. Furthermore, the City’s affiants did not even review the documents that were withheld - they only wrote in support of the redactions to emails that were produced. The City has not established that it was entitled to withhold any emails.
The OOR’s Final Determination is scheduled for July 27, so I have to just wait and see what happens. I’m pretty sure that either way this one is getting appealed to Common Pleas, so I don’t expect to receive the unredacted emails for some time.
I strongly agree with the adage that “a lawyer who represents herself has a fool for a client” but I think doing RTKL litigation pro se is the exception - the requester’s motive cannot be considered in determining the public nature of records, and you’re just making a legal argument on a confined record. This has been a particularly exciting opportunity for me because I get to make a novel legal argument, and do so in pursuit of records I believe should be released as a matter of public interest.
I’m also posting the first two submissions to the OOR for any weirdos (or nice normal public records litigators) who want to follow along: