State director, attorney say Herald-Standard court win sets precedent
When a Commonwealth Court judge awarded the Herald-Standard nearly $120,000 in legal fees this week, it sent a strong message that there will be consequences for ignoring a ruling to release public records under the state’s Right-to-Know Law, said state Office of Open Records (OOR) Executive Director Erik Arneson.
“It really sends a dramatic signal to agencies that the courts are taking this law very seriously,” he said.
On Monday, Judge Robert Simpson found the Herald-Standard was entitled to recoup $118,458.37 of the $215,000 spent during a three-year legal fight with the state Department of Corrections. In 2015, the newspaper took the DOC to court when the agency did not release records about inmate illnesses as ordered by the OOR.
In March of this year, Simpson found that the DOC acted in bad faith by ignoring orders to release the information and fined them $1,500, paving the way for the newspaper to request repayment of the money spent to go to court.
“It’s so helpful to have this first decision out of Commonwealth Court that really hits these issues head on. It’s an important thing for the law, which is relatively young,” Arneson said. “This was a good decision.”
Arneson, who confirmed the fees awarded were the highest yet in the state, said the ruling came on the heels of a Berks County judge’s August decision that ordered the City of Reading to pay $12,071 in legal fees for withholding public information related to contracts.
According to the Reading Eagle newspaper, the judge in that case found the city disregarded the open records law and ordered the fees paid “to encourage compliance with the (law) in the future.”
“I think that because in relatively short order we have a county court and Commonwealth Court issuing sanctions under the Right-to-Know Law, it sends a very strong, very good signal,” Arneson said. “It gives a lot more incentive for agencies to follow orders issued by the Office of Open Records.”
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said the amount of attorneys’ fees granted may be the highest in the country as it pertains to individual states’ open records laws.
“And there’s never been an award anywhere close to what this one is (in Pennsylvania),” said Melewsky.
She called the decision “precedent setting” in the amount of the award and in the language that Simpson used in his opinion.
“It’s a significant win for the Herald-Standard, it’s a significant win for public access and it’s a significant ruling under the Right-to-Know Law for enforcement purposes,” she said. “The decision creates a road map for requesters who find themselves in similar situations.”
Melewsky said legal fees have only been awarded “a handful of times” under the current law, enacted in 2009. Such fees were only awarded that same handful of times under the former state open records law, which was in effect for about 50 years, she said.
The formation of the OOR was one of the biggest changes under the update to the state’s Right-to-Know Law.
The OOR functions as a lower court of sorts, an agency to which those who are denied records by a public entity can appeal. That office looks at the request and looks at the law and determines if the record should be released. It’s free to do, and no attorney is necessary for filing an appeal to the OOR.
“If the OOR orders something to be released and the agency does not appeal that order, the only other option for the agency is to release that record,” Arneson said.
As evidenced by the cases with the Herald-Standard and in Reading, however, that doesn’t always happen.
When an agency doesn’t release the records they’ve been ordered to, which Arneson said he believes is a rare occurrence, the only option is to ask a judge to intervene. And, Arneson acknowledged, that process can get costly.
“I’m glad that the Herald-Standard was able to do this. Most requesters wouldn’t have the ability to handle legal bills the size of which the (newspaper) undertook,” he said.
Melewsky said the rulings issued by OOR generally have kept people out of court. Before the law was updated nearly a decade ago, seeking relief from a judge was the only way to gain access to records that were unlawfully withheld. Yet the cost of doing so, she said, was then, and remains now, prohibitive for many.
“Most people aren’t in the position to litigate. It’s expensive, it’s time consuming and it’s intimidating,” she said.