Pennsylvania Public Records: Bias Exposed in RTKL Appeals

Lessons from the Pennsylvania Office of Open Records

The United States judicial system faces a trust crisis, with only 35% of Americans expressing confidence in the courts, according to a Gallup poll. This crisis reflects broader concerns about accountability and fairness in adjudication, extending far beyond federal courts to state and local institutions. These alarming trends are echoed in Pennsylvania, where recent decisions by the Office of Open Records (OOR) illustrate how procedural bias can undermine public confidence in open government and accountability.

Procedural Bias at the Office of Open Records

The OOR’s handling of appeals, including cases involving Mahanoy City Borough and East Union Township, demonstrates troubling patterns. In one instance, the OOR extended the deadline for Mahanoy City Borough to respond to an appeal, granting an additional seven days. Despite the agency’s continued nonresponse, the OOR fabricated a defense on behalf of the Borough and ultimately ruled in its favor. This practice not only raises questions about procedural fairness but also suggests a bias that favors agencies over requesters.

Even more concerning is the case involving East Union Township. After Deputy Director Nathanial Byerly acknowledged receipt of the appeal, the OOR failed to create an appeal file or advance the matter. Such oversights erode public trust and suggest systemic failures that demand scrutiny.

Central to the OOR’s rationale in some of these cases is a flawed determination regarding Frank Curry, who submitted requests on behalf of FOIA Buddy. The OOR relied on a prior determination in Curry v. South Western School District, which erroneously categorized Frank Curry as an anonymous requester, despite ample evidence of his identity and U.S. citizenship. The OOR’s refusal to acknowledge the facts—such as video evidence demonstrating Curry’s identity—further illustrates its bias.

The Danger of Erroneous Precedents

Let's Selectively Ignore Other Evidence!

Compounding this issue is the OOR’s selective reliance on unfavorable precedents while ignoring favorable rulings. For instance, the OOR disregarded its own decision in FOIA Buddy v. Pottsville City (OOR Dkt. AP 2024-1585), where it ruled in favor of Frank Curry and upheld his status as a legitimate requester. This inconsistency undermines the OOR’s credibility and reinforces perceptions of bias.

Broader Implications of Procedural Bias

The OOR’s actions echo the systemic issues highlighted in David Daley’s The Guardian article, which examines the declining trust in American courts. As Daley notes, the perception of bias and favoritism in the judiciary undermines democratic norms and accountability. Similarly, the OOR’s approach to handling appeals risks setting dangerous precedents that could reverberate far beyond Pennsylvania. If unchecked, such practices could embolden public agencies to disregard transparency laws, eroding the fundamental rights of citizens to access public records.

Ethical Concerns and Accountability

Attorneys representing agencies, such as an attorney representing a small Schuylkill County Boro close to Ashland & Shenandoah PA(info will be released in the future), bear a heightened responsibility to act ethically. Relying on flawed determinations while ignoring contradictory evidence is not only unethical but may also violate the Pennsylvania Rules of Professional Conduct. Rule 3.3 requires attorneys to avoid making false statements to a tribunal or failing to disclose material facts. Similarly, Rule 4.4 prohibits conduct that serves no substantial purpose other than to burden or harass opposing parties.

The Path Forward

Restoring trust in Pennsylvania’s transparency mechanisms requires immediate reforms, including:

Transparency in Decision-Making: The OOR must articulate clear and consistent standards for evaluating appeals and disclose the rationale behind its decisions.
Accountability for Nonresponse: Agencies that fail to respond to appeals should face penalties, and the burden of producing evidence should rest squarely on them—not on the requester.
Ethical Oversight: Attorneys representing agencies must adhere to ethical standards, avoiding reliance on flawed precedents and baseless defenses.

The systemic issues within the OOR must be addressed to prevent further erosion of public trust. If procedural bias is left unchecked, it risks undermining not only Pennsylvania’s Right-to-Know Law but also the broader principles of transparency and accountability upon which democracy depends. As the saying goes, “Sunlight is the best disinfectant.” It is time for Pennsylvania to shine a brighter light on its own institutions.

Public Comment Opportunity

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If you have information about fraud, abuse, or retaliation, contact FOIA Buddy today. Let’s work together to expose the truth, ensuring transparency, accountability, and justice for all.