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Who has burden of showing "public record"? (Read 377 times)
Aug 23rd, 2011 at 10:00am

rpz1   Offline
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If the new change to the Right-to-Know Law is to presume that requested records are public, then why has a Pennsylvania Office Of Open Records, Final Determination, in Richard Zuckerman, Complainant, v. Plumstead Township, Respondent, Docket No. AP 2011-1117, dated August 19, 2011, "...determined that the Requester failed to provide a statement addressing why the record is a public record"? By the way, the administrative appeal regarded my request for inspection of "...everything you have on LaRancherita Grocery, 5878 Easton Road, Plumsteadville, Pa.; About the business, who owns it, how long, etc.".  Instead of permitting me to inspect anything, the municipality responded with the name of the owner, that's it.  I want to see all documents!!! Now, on administrative appeal, the Pennsylvania Office Of Open Records puts the burden on me of showing it is a "public record".  I thought an important change to this Right-to-Know law is that the burden is on the public entity to show exemption(s)?

At the same time, in regards to a different matter, Richard Zuckerman, Complainant, v. Plumstead Township, Respondent, Docket No. AP 2011-1118, regarding the municipality's determination that the owner of the "boarding house" I am residing in is exempt from filing a landlord-tenant report (ordinarily required under Plumstead Township Local Ordinance Section 11-101), the Pennsylvania Office Of Public Records, Final Determination, also dated August 19, 2011, "...determined that the Requester failed to provide a statement addressing why the record is a public record."

Why do they deny relief for the Requestor's failure to show the record is a public record if the big change in the Right-to-Know law is that the burden is placed on the public entity to show the record is not a "public record"?

Would you please provide me with attornies (name, address, telephone number), preferably near Bucks County, Pa., whom specialize in this Right-to-Know law practice?  Both "Final Determination" decisions state I have 30 days to petition for review to the Bucks County Court of Common Pleas".
 
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Reply #1 - Aug 23rd, 2011 at 11:22pm

Kim de B   Offline
PaFOIC Forum Administrator
It's your government.
It's your right to know.
Harrisburg, Pa.

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You have discovered a new wrinkle in the new Right to Know Law, that only recently has become a serious issue, as far as open records advocates are concerned.

Unfortunately, in Section 1101. Filing of appeal , there IS the following language in the law:

(1) If a written request for access to a record is denied or deemed denied, the requester may file an appeal with the Office of Open Records or judicial, legislative or other appeals officer designated under section 503(d) within 15 business days of the mailing date of the agency's response or within 15 business days of a deemed denial. The appeal shall state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request.

This unfortunate language is a holdover from the old law, where it was totally the burden of the requester to prove he or she was entitled to the records.  As you point out, it flies in the face of the "presumption" of access that is otherwise built into the law.  (That being, the law otherwise starts off with the presumption that all manner of records held by a public agency are open to the public, and that the burden of proving otherwise is on the agency.)

In any case, while that language -- that says the requester is to defend his right to have the record when filing an appeal -- has been in the new law since the beginning, the Office of Open Records has NOT made that an absolute requirement of the appeals process ... until recently, when a state court overturned an OOR determination for this reason.

And so now that the court has ruled on this point, the OOR is bound to dismiss appeals when the requester has not followed the absolute letter of the law and included both a statement of why the requester believes the record is public and addressing the reasons the agency has denied the record.

Even a simple statement that "I believe this record is public because the law presumes that it is" will do.

The OOR is dismayed by this ruling, and open records advocates will be fighting to get this language removed from the law.


 

Kim de Bourbon
Executive Director
Pennsylvania Freedom of Information Coalition
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