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Appeals to Office of Open Records of Right to Know Law Requests made by Private Companies Raises Questions (and Procedural Dismissals)

On May 20, 2024, the Office of Open Records (OOR) posted a notice regarding Right-to-Know Law (RTKL) requests received by agencies submitted to agencies via FOIA Buddy, a private company that submits requests for records to governmental agencies on behalf of unnamed individuals.  In its notice, OOR confirms that “FOIA Buddy is operated by people who have a stated goal of efficiently promoting government transparency and accountability in a cost-effective manner for all involved” and that “[t]here is no indication that FOIA Buddy is part of any phishing, scraping, or scamming activities.”  Without providing legal advice as to the validity of any such appeal, OOR noted that “[t]o the extent FOIA Buddy disagrees with an agency’s response with regard to a request filed under the RTKL, it can file an appeal with the OOR.”  Additionally, OOR cautions agencies that: “As with all RTKL requests, each agency is responsible for handling the requests it receives in compliance with the RTKL and pursuant to any of its own policies and procedures that are in accordance with the RTKL.” 

So far, appeals to OOR filed as a result of requests filed by FOIA Buddy have been dismissed for procedural deficiencies, leaving unanswered a number of questions for agencies subject to the RTKL that arise from this new method of submitting “anonymous” requests: 

  • Does an agency need to respond to a RTKL request filed by anonymous individual? 
  • Does an agency need to respond to a RTKL request received from a private company on behalf of an anonymous individual? 
  • Can a private company seeking records on behalf of an anonymous individual maintain an appeal to OOR of an agency’s denial for records? 
  • Can an individual appeal to OOR, an agency’s denial of access to records when the underlying request was filed by a private company on the individual’s behalf?

Does an agency need to respond to a RTKL request filed by anonymous individual? 

Under the RTKL, a requester must both be a “person” and “a legal resident of the United States.”  65 P.S. § 102.  Section 702 of the RTKL provides that: “Agencies may fulfill verbal, written or anonymous verbal or written requests for access to records under this act.  If the requester wishes to pursue the relief and remedies provided for in this act, the request for access to records must be a written request.” 65 P.S. § 67.702.  OOR has interpreted this section as affording agencies the discretion to fulfill or ignore anonymous requests. Where there is no evidence that the requester is a resident of the United States, OOR has consistently held that the request is anonymous such that OOR lacks the authority to direct an agency to grant an anonymous request.  See Anonymous v. Norristown Municipality, OOR Dkt. AP 2020-2496, 2020 PA O.O.R.D. LEXIS 3147 (request including only an email address and the identifier ‘E3E3’ was anonymous); Anonymous v. Southeastern Pa. Transportation Auth., OOR Dkt. AP 2018-1877, 2018 PA O.O.R.D. LEXIS 1416 (request including an email address and signed as “T” was anonymous); John Doe v. Pa. Dep’t of Community & Econ. Dev., OOR Dkt. AP 2024-0543, 2024 PA O.O.R.D. LEXIS 506 (request included the name “John Doe”, an email address, and a document purporting to be an attestation that the Requester was a US resident but redacted of all identifying information was an anonymous request).  

Generally speaking, it is within the agency’s discretion whether to fulfill or ignore anonymous requests, i.e., RTKL requests submitted without the Requester’s name or identifying information to provide evidence that the requester is a person that is a legal resident of the United States able to request records under the RTKL. 

Does an agency need to respond to a RTKL request received from a private third-party company on behalf of an anonymous individual? Can the private third-party company maintain an appeal of an agency denial of its RTKL request?

The RTKL provides that a requester must be a “person.” 65 P.S. § 102.  While not defined by the RTKL, the Statutory Construction Act of 1972 defines the term “person” to “[i]nclude[] a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person.” 1 Pa.C.S. § 1991.  

Therefore, assuming the private company submitting the request for records is a valid business entity, that entity likely qualifies as a “requester” as defined by the RTKL and may submit requests with local and state agencies for records under the RTKL in its own name even if the company is seeking the records on behalf of an unnamed individual. 

Likewise, there is nothing under the RTKL that prohibits a private company from maintaining an appeal of an agency’s denial for records to OOR that the company seeks on another’s behalf, so long as the company, as the “requester” under the RTKL, maintains the appeal in its own name. 65 P.S. § 1101(a) (“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)…”)(emphasis added).

Can a named individual appeal an agency’s denial to OOR for records when the underlying request was filed by a private third-party entity?

Under the RTKL, an appeal must be filed by the requester.  If an individual is not named in a request to an agency filed by a private company on its behalf and the private company does not file its own appeal, then OOR may find the named individual (i.e., one that does not file as “anonymous” on appeal) does not have standing to challenge an agency’s denial of a private company’s request allegedly made “on behalf of” the individual as the individual is not injured by the agency’s denial of another’s request. 

While a number of appeals have been filed with OOR by individuals that sought records via RTKL requests submitted by FOIA Buddy, thus far, these appeals have been dismissed for procedural errors.  For example, in Angelo Rodriguez v. Schuylkill County; OOR Dkt. AP 2024-1410, Final Determination dated June 3, 2024, OOR dismissed an appeal arising from a request filed by FOIA Buddy as insufficient for failing to address the County’s reasons for denying access to the records and therefore the appeal failed to “identify the issue(s) which remain outstanding for disposition” by OOR.  While OOR noted in that case that the requester was “not prohibited from filing a new appeal pursuant to the requirements of 65 P.S. §. 67.1101(a)(1),” all subsequent appeals filed by the requester to OOR were deemed untimely. See Angelo Rodriguez v. Schuylkill County, OOR Dkts. AP 2024-1430 et al., Final Determination dated June 5, 2024.  In three OOR final determinations issued on May 22, 2024, OOR likewise dismissed a series of appeals filed by the same individual which arose from requests submitted to various local agencies by FOIA Buddy “on behalf of” the named individual as insufficient for failure to identify the issues to be adjudicated by the OOR.  See Frank Curry v. Etna Borough; OOR Dkt. AP 2024-1295; Frank Curry and FOIA Buddy v. Bald Eagle Area Sch. Dist., OOR Dkt. AP 2024-1300; Frank Curry and FOIA Buddy v. Charleroi Borough Auth., OOR Dkt. AP 2024-1291. 

The validity of appeals filed by companies offering to file requests seeking records from agencies that are submitted on behalf of anonymous individuals remains unresolved; however, the takeaway is that agencies must be cautious and should consult with counsel regarding the agency’s RTKL policy before rejecting requests filed by private companies that submit RTKL requests on behalf of “anonymous” individuals or in facing appeals before OOR involving this new type of “requester.” 

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