How do you know when you should appeal an open records denial?

I talked to a guy today who called to ask whether a denial he got from his town was legit.

He was asking his municipality’s police department for the number of complaints filed against the department over a several-year period, and the number of times the department had used stun guns on people.

The department refused. It said the right-to-know law exempts noncriminal investigation documents, including complaints submitted; and said it exempts information that relates to or results in a criminal investigation.

My caller basically wanted to know: Can they do this? Well, knowing when to appeal an open records denial isn’t always a science.  But this case illustrates one way you can decide whether to challenge a denial and, basically, that is: Don’t take an agency lawyer’s word that your request meets an exemption in the law. Important things to know, based on our experience here at the YDR and other cases I’ve read about:

  1. The RTK law says records are public unless an agency/municipality can prove why they shouldn’t be.
  2. The open records office has ruled against denials in which an agency/municipality has simply declared that a record meets an exemption without offering proof (for example, case law) that it actually meets the exemption.
  3. Lawyers who are reviewing your right to know request are being paid to make sure their employer isn’t exposed to any risk by releasing documents. Therefore, they will take the broadest possible reading of any exemption that might apply.
  4. That broad reading of the exemptions allows them to issue a denial in hopes you will accept it and move on.
  5. If the denial offers no proof as to why the records fit an exemption, or if you assess the denial and honestly believe the lawyer is stretching the exemption too far, those are good reasons to appeal. You will put the agency in a position of having to prove why the records should be private. And you may get your records, or at least part of them. In doing so, you create a path that others can follow in getting public documents from their municipality or agency.

Have an open records denial story, or success story, to tell? Let me know. The more we can share experiences with the RTK law, the better chance people have of getting access to public records.

 

About Scott Blanchard

Sunday editor at the York (Pa.) Daily Record/Sunday News. Follow me on Twitter and Google+.
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