65 P.S. § 67.901 [requiring a good faith search for records]
Sep 18th, 2014
- 65 P.S. § 67.901 [requiring a good faith search for records].
- 65 P.S. § 67.901 requires agencies to, inter alia, “make a good faith effort to determine... whether the agency has possession, custody or control of the identified record.” In the past, the City of Philadelphia has denied requests as asking for exempt records on their face, and only revealed later - after an appeal of the claimed exemptions to the Office of Open Records - that no search was done for the records requested before the appeal (see, e.g. Nolen v. City of Philadelphia, Police Department, AP 2014-1187).
- This practice violates the requirement for a good-faith search, and it also violates the instructions of the Commonwealth Court that “agencies as a normal practice should raise all objections to access when the request is made if the reason for denying access can be reasonably discerned when the request is made,” because “otherwise, review will be piecemeal, and the purpose of the RTKL in allowing access to public records in a timely manner will be frustrated.” Pennsylvania State Police v. Office of Open Records, 995 A.2d 515, 517 (Pa. Cmwlth. 2010) . The way in which such a practice makes review “piecemeal” is clearly demonstrated in Nolen, AP 2014-1187, wherein the appellant was unable to challenge the later-discovered malfeasance on the part of the City since he had not included a challenge to the search in his original appeal and thus was not able to include the issue in any request for judicial review (“The record before a court [in a judicial review of an RTKL request] shall consist of the request, the agency’s response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.” 65 P.S. § 67.1303(b)).
- Due to the City's practice of failing to follow the law concerning requests which on their face appear to ask for exempt records, and then obstructing effective review of its failure, I am appealing the failure of the City to conduct a good faith search in this case. This is in order to insure that my request is not similarly denied effective review. Please note that while this is not a claim under 65 P.S. § 67.1101, I have already addressed my grounds for appeal under Section 1101 above, and thus this portion of my appeal should be considered as well, even though it alone would not be sufficient.
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