From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: I recently filed an appeal with the Office of Open Records. The agency has asked the Office of Open Records to order me or my newspaper to pay the agency’s legal fees related to the appeal. The agency argues that my request is “frivolous” because I requested the same record under the old law and was denied. Can the Office of Open Records order me to pay the agency’s legal fees resulting from the OOR appeal?

A: No. The Right to Know Law does not empower the Office of Open Records to impose sanctions in the form of attorney fees; only a court has that power and only in limited circumstances.

Section 1304(b) of the Right to Know Law provides that:
A court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that the legal challenge under this chapter was frivolous.

Accordingly, only a court may award attorney fees or costs, and only where the court has found that the judicial appeal is frivolous. The Office of Open Records cannot order you or your newspaper to pay the agency’s legal fees related to the administrative appeal process. Even in a court appeal, this should be a difficult standard to satisfy (and attorney fee awards should be rare against requesters), particularly in light of the significant changes to the law in 2008, and the differing interpretations of some of the new provisions.

Significantly, attorney fees can also be assessed against agencies if a court finds that an agency willfully, with wanton disregard or in bad faith denied access to a public record or, if a court finds that the agency’s denial is not based on a reasonable interpretation of the law. The courts have ordered agencies to pay attorney fees and costs for requesters who were improperly denied access under the old Right to Know Law.