Opinion: Commonwealth Court orders DEP to provide records to Times-Tribune
July 31, 2012 Right to Know Law | Commonwealth Court
OPINION
By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association
In a positive decision for access, the Commonwealth Court has ordered the Department of Environmental Protection to provide records to the Times-Tribune (Scranton).
In DEP v. Legere and the Times-Tribune, the newspaper requested copies of Act 223, Section 208 letters and orders sent to natural gas drillers regarding pollution caused by drilling operation activities. DEP partially complied by providing some records but denied access to the remaining records. DEP argued several bases for denial including lack of specificity, undue burden on the agency, and unspecified exemptions to the Right to Know Law. The Commonwealth Court disagreed with DEP on all bases and ordered production.
The court held that the fact that a requester seeks access to “all” copies of a defined class of records does not render the request insufficiently specific. In this case, the request sought access to a particular class of record within a limited time frame which satisfied the law’s requirement for specificity.
Further, the court also held that the burden on the agency is not a proper basis for denial and burden does not render a request overbroad. DEP argued that because it did not keep track of the letters and orders in an easily searchable manner, the request was overly burdensome and overbroad. The court disagreed and found that agencies cannot frustrate public access by failing to maintain records in a manner that enables RTKL compliance. The court also found that requiring the agency to search for and evaluate the records does not require and agency to “maintain, file or format” a record in a manner in which it does not exist.
Finally, the court held that DEP had waived the exemptions in the RTKL by not asserting the specific exemptions relied upon. The court held that the agency cannot assert generally applicable exemptions when denying access to records.
Read the opinion
By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association
In a positive decision for access, the Commonwealth Court has ordered the Department of Environmental Protection to provide records to the Times-Tribune (Scranton).
In DEP v. Legere and the Times-Tribune, the newspaper requested copies of Act 223, Section 208 letters and orders sent to natural gas drillers regarding pollution caused by drilling operation activities. DEP partially complied by providing some records but denied access to the remaining records. DEP argued several bases for denial including lack of specificity, undue burden on the agency, and unspecified exemptions to the Right to Know Law. The Commonwealth Court disagreed with DEP on all bases and ordered production.
The court held that the fact that a requester seeks access to “all” copies of a defined class of records does not render the request insufficiently specific. In this case, the request sought access to a particular class of record within a limited time frame which satisfied the law’s requirement for specificity.
Further, the court also held that the burden on the agency is not a proper basis for denial and burden does not render a request overbroad. DEP argued that because it did not keep track of the letters and orders in an easily searchable manner, the request was overly burdensome and overbroad. The court disagreed and found that agencies cannot frustrate public access by failing to maintain records in a manner that enables RTKL compliance. The court also found that requiring the agency to search for and evaluate the records does not require and agency to “maintain, file or format” a record in a manner in which it does not exist.
Finally, the court held that DEP had waived the exemptions in the RTKL by not asserting the specific exemptions relied upon. The court held that the agency cannot assert generally applicable exemptions when denying access to records.
Read the opinion
