[J-49A-2020 and J-49B-2020]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

UNIONTOWN NEWSPAPERS, INC., D/B/A 

THE HERALD STANDARD; AND 

CHRISTINE HAINES,

Appellees

v.

PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS,

Appellant

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No. 76 MAP 2019

Appeal from the Order of the 

Commonwealth Court at No. 66 MD 

2015 dated March 23, 2018.

ARGUED: May 21, 2020

UNIONTOWN NEWSPAPERS, INC., D/B/A 

THE HERALD STANDARD; AND 

CHRISTINE HAINES,

Appellees

v.

PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS,

Appellant

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No. 77 MAP 2019

Appeal from the Order of the 

Commonwealth Court at No. 66 MD 

2015 dated October 29, 2018.

ARGUED: May 21, 2020

OPINION

JUSTICE MUNDY DECIDED: December 22, 2020
[J-49A-2020 and J-49B-2020] - 2

We granted appeal in this matter to consider the assessment of sanctions and 

attorney fees based on a finding of bad faith and willful and wanton behavior by an agency

responder under the Right to Know Law (RTKL).

1

In September 2014, prior to the request for the records at issue in this case, the 

Abolitionist Law Center published a report entitled “No Escape: Exposure to Toxic Coal 

Waste at [SCI-]Fayette.” The report alleged a causal connection between the ill health of 

inmates at SCI-Fayette, and the facility’s proximity to a fly ash dumpsite. In response to 

the report, the Department of Corrections (DOC) coordinated with the Department of 

Health (DOH) to investigate the allegations (the No Escape Investigation). Christopher 

Oppman, who was then the Director of the DOC’s Bureau of Health Care Services, 

oversaw the No Escape Investigation, which was led by Drs. Paul Noel and Eugene 

Ginchereau. In conducting the No Escape Investigation, the DOC consulted many 

sources of information. These included “causes of inmate deaths (Mortality Lists); a 

database that tracked inmates treated for cancer (Oncology Database); reports of inmate 

medications prepared by DOC's pharmacy contractor (Pharmacy Contractor Reports); 

and, records showing inmates enrolled in Chronic Care Clinics, tracked via the PTrax 

database (collectively, Inmate Illness Sources).” Uniontown Newspapers, Inc. v. Pa. 

Dep’t of Corr., 185 A.3d 1161, 1164-65 (Pa. Cmwlth. 2018) (Uniontown II).

On September 25, 2014, reporter Christine Haines of The Herald Standard

(Appellees) sent an e-mail RTKL request to the DOC, seeking:

documentation of illnesses contracted by inmates and/or staff 

members at SCI-Fayette. I am not seeking identifying 

information, only the types of reported contracted illnesses 

and the number of inmates and staff members with those 

illnesses. I am particularly interested in various types of 

cancer reported at SCI-Fayette since its opening, as well as 

respiratory ailments reported. If there is also information 

 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
[J-49A-2020 and J-49B-2020] - 3

comparing the health at SCI-Fayette with the health at other 

state correctional facilities, that would also be helpful.

Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 151 A.3d 1196, 1200 (Pa. 

Cmwlth. 2016) (Uniontown I). 

DOC assumed Appellees’ request related to the Abolitionist Law Center’s report 

and the No Escape Investigation. Uniontown II, 185 A.3d at 1165. DOC’s open records 

officer, Andrew Filkosky, issued a denial of Appellees’ request in its entirety, citing several 

exceptions under Section 708(b) of the RTKL, as well as attorney-client privilege and 

deliberative process privilege grounds. Appellees appealed and, on December 1, 2014, 

the Office of Open Records (OOR) reversed, ordering DOC to disclose to Appellees “all 

responsive records” within 30 days. DOC did not file a petition for review of this 

determination with the Commonwealth Court.

On December 31, 2014, in-house counsel for DOC, Chase DeFelice, disclosed 15 

pages of records to Appellees. The disclosed records included “charts depicting the 

following: the number of patients with pulmonary conditions in all SCIs (from Chronic Care 

Clinic records); the number of inmates with cancer in all SCIs (2010–13); inmate cancer

deaths by institution (2010–13); inmate cancer deaths at SCI–Fayette (2003–13); the 

number of inmates treated by Pharmacy Contractor for pulmonary ailments (2010–14); 

and, the number of inmates treated by Pharmacy Contractor for gastrointestinal ailments 

(2010–14).” Id. (citation omitted). In January 2015, Appellees asked DOC to verify that 

its December 31, 2014 disclosure was a complete response to the request for records. 

After undertaking an additional review, DOC disclosed a memorandum from Dr. 

Ginchereau to Dr. Noel, as well as an e-mail from Dr. Noel about the investigation, and a 

day later disclosed cancer patient records from November 2014 and January 2015. At 

this juncture, Director Oppman verified that the DOC “had no other records of SCI–
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Fayette inmate illnesses by type and quantity[,] and comparison of illness rates at other 

[SCIs].” Id. (brackets in original, internal quotation marks and citation omitted).

In February 2015, Appellees filed a petition for enforcement with the 

Commonwealth Court, seeking statutory sanctions and attorney fees alleging DOC 

demonstrated bad faith in responding to the request for records, and the OOR’s directive. 

DOC filed preliminary objections, which were overruled. DOC thereafter filed an answer 

and new matter. Appellees filed a motion for judgment on the pleadings, which the court 

denied.2 After further discovery, the parties filed cross-motions for summary relief. 

A three-judge panel of the Commonwealth Court first considered whether DOC 

had complied with the OOR’s Disclosure Order. DOC contended it provided all 

responsive records based on its reasonable interpretation of the scope of the request. 

The panel granted DOC’s motion in part and denied it in part. Specifically, it held DOC 

was not required to disclose individual inmate medical records or to create new records 

compiling data from those records not already created or that would not be created in 

regular course. Uniontown I, 151 A.3d at 1207 (Pa. Cmwlth. 2016). However, in addition 

to records created as part of the No Escape Investigation, the Commonwealth Court 

identified the following records that DOC should have provided: (1) the Chronic Care 

Clinics Database; (2) the Oncology Database; (3) Mortality Lists; and (4) Pharmacy 

Contractor Reports, set forth above. Id. at 1205. Because the panel could not discern 

the full extent of any non-compliance by DOC, the panel directed the parties to file a 

stipulation as to the disclosure status of these five classes of records. The panel denied 

 

2 Senior Judge J. Wesley Oler, Jr. issued this ruling in an unpublished single-judge

opinion. See Uniontown Newspapers v. Dep’t of Corr. (Pa. Cmwlth., No. 66 M.D. 2015, 

filed December 7, 2015). Therein, he held judgment on the pleadings was inappropriate 

because an issue of material fact existed concerning whether the DOC’s interpretation of 

and/or response to the request for records was reasonable or made in bad faith.
[J-49A-2020 and J-49B-2020] - 5

Appellees’ motion without prejudice and reserved judgment on the issue of bad faith 

sanctions. Id. at 1209

The parties engaged in further discovery. During this process, in March 2017, 

DOC disclosed additional mortality lists and data from its oncology database. After 

discovery was complete, the parties filed a stipulation that the “Pharmacy Contractor 

Reports and Chronic Care Clinic records remained outstanding.” Uniontown II, 185 A.3d 

at 1166. The Commonwealth Court held a hearing in August 2017, and the parties filed 

proposed findings of fact and conclusions of law in October 2017. 

In a single-judge opinion and order entered on March 23, 2018, the court 

proceeded to review Appellees’ alleged grounds for finding DOC acted in bad faith, 

specifically, that DOC construed the record request too narrowly; DOC failed to search 

records; and DOC failed to comply with the OOR’s Disclosure Order. It addressed DOC’s 

compliance at each stage, including its construction of the request, responsive actions 

upon receipt of the record request, its actions at the appeal stage before the OOR, and 

its degree of compliance with the disclosure order of the OOR.

With respect to the construction of the request, the court first noted that nothing in 

the request for information referenced the No Escape Investigation, and that DOC’s 

assumption that the request related only to records related to that investigation stemmed 

merely from the coincidental timing of the request. The court noted that Appellees

presented no evidence of communications with DOC clarifying the parameters of the 

request. The court further found that DOC’s open records officer merely forwarded the 

request to DOC’s Health Care Bureau without an interpretation of the request, and 

reflexively accepted the Health Care Bureau’s subsequent interpretation. Absent any 

showing of an attempt to construe the request in any particular adverse manner, the court 

determined that DOC’s erroneously narrow interpretation of the request did not itself 
[J-49A-2020 and J-49B-2020] - 6

amount to bad faith. Rather, it noted, “the primary problem revealed during the hearing 

was that DOC did not give any specific, separate consideration to the Request at all.” 

Uniontown II, 185 A.3d at 1171 (emphasis in original).

The court observed that, during the appeal stage before the OOR, DOC 

represented to the OOR that it possessed records that were responsive to Appellees’

request, but the records were exempt from disclosure. The basis for this representation 

was a verification DOC’s in-house counsel prepared for the Director of DOC’s Bureau of 

Health Care Services, who also oversaw the No Escape Investigation. Critically, counsel 

submitted this verification to the OOR without ever obtaining or reviewing the records. Id.

at 1173. Judge Simpson concluded that “by contesting access during the appeal, without 

obtaining all records and assessing the records’ public nature, DOC acted in bad faith.” 

Id. 

Once the OOR ordered disclosure within 30 days, “DOC bore the burden to prove 

it provided all responsive records.” Id. (internal quotation marks omitted). The court found 

that DOC waited until after the 30-day period had passed before confirming whether it 

had searched for all potentially responsive records. Id. In addition, DOC failed to disclose 

all mortality lists and the oncology database data until months beyond the deadline. Id. 

Furthermore, DOC did not contact its pharmacy contractor until 2017 in order to obtain 

potentially responsive records held by the contractor. Id. The court determined this 

further evidenced a lack of good faith on the part of DOC. Id. at 1174. In addition, due 

to DOC’s tardiness, certain chronic care clinic records were not preserved and were no 

longer available. Id.

Concluding DOC responded in bad faith, the court then turned to the relief due to 

Appellees. First, the Commonwealth Court ordered disclosure of certain classes of 
[J-49A-2020 and J-49B-2020] - 7

remaining responsive records within 20 days.3 Id. In addition, the court observed that 

the RTKL permits sanctions up to $1,500.00 “if an agency denied access to a public 

record in bad faith.” 65 P.S. § 67.1305(a). Based on its findings, the court concluded 

that the maximum amount of sanctions was appropriate in this case. The court deferred 

any resolution of Appellees’ request for attorney fees. The court directed Appellees to 

advise the court in writing of its intent to pursue its claim for attorney fees together with 

any supporting documentation, whereupon further briefing and/or hearing would be 

scheduled.

Appellees subsequently pursued their claim for attorney fees. The court conducted 

a hearing on the issue of what constituted “reasonable” attorney fees in this case. 

Ultimately, by order entered on October 29, 2018, the Commonwealth Court awarded 

Appellees attorney fees of $118,458.37. Uniontown Newspapers, Inc. v. Pa. Dep’t of 

Corr., 197 A.3d 825 (Pa. Cmwlth. 2018) (Uniontown III). Therein, the court clarified that 

it resolved the issue of bad faith in its earlier decision and accepted that finding for the 

purpose of determining reasonable attorney fees in the instant proceeding. Id. at 830.

DOC filed a petition for allowance of appeal, which this court granted, limited to the 

following issues:

1. Where RTKL Sections 65 P.S. §67.1304 and §67.1305 

premise the award of sanctions and attorney fees on a finding 

of bad faith and willful and wanton behavior, can a court 

impose those penalties based on a finding that the RTK 

responder failed to personally and independently assess the 

universe of documents sought, instead relying on the 

statement of Bureau functionaries that all otherwise 

responsive records are part of a noncriminal investigation, 

when any duty to independently and personally assess is not 

clearly delineated in either the statute or the case law?

 

3 DOC does not dispute that these documents were responsive to the request, were not 

subject to any exclusion, and remained undisclosed.
[J-49A-2020 and J-49B-2020] - 8

2. Did the Commonwealth Court properly construe the 

statutory language in 65 P.S. §67.1304 as authorizing an 

award of attorney fees when a court reverses a final 

determination of an agency rather than when a court reverses 

the final determination of the appeals officer?

Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 218 A.3d 375 (Pa. 2019).

I.

With respect to the first issue, DOC focuses primarily on the Commonwealth 

Court’s findings regarding the actions of open records officer Filkosky.4

The court found that upon receipt of Haines request, Filkosky forwarded her e-mail 

to DOC’s Bureau of Health Care Services without any instructions. The Bureau did not 

respond in writing; however, one of its employees, Cathy Montag, spoke to Filkosky and 

informed him that the requested records all related to the No Escape Investigation that 

DOC and the DOH were performing. Filkosky concluded that the only other records would 

be the inmates’ medical files. N.T. 8/28/17, at 126-28. In addition, the court noted:

Significantly, Filkosky did not receive any potentially 

responsive records from DOC’s Health Care Bureau. Without 

understanding the records involved, he relied on DOC’s 

Health Care Bureau’s assessment that any responsive 

records related to the No Escape Investigation. Filkosky also 

did not discern what records were allegedly investigative 

either to document their content or to assess any exemptions. 

Filkosky issued DOC’s denial under Section 903 of the RTKL 

without reviewing any records.

Accordingly, DOC did not perform its duties during the request 

stage in several material respects. In short, DOC neglected 

to: perform a good faith search; obtain records from sources 

consulted during the No Escape Investigation; review all 

potentially responsive records; and assess the content of 

responsive records before withholding access.

 

4 Statutory interpretation raises a question of law. Therefore, our standard of review is 

de novo and our scope of review is plenary. Com. v. Giulian, 141 A.3d 1262, 1266 (Pa. 

2016).
[J-49A-2020 and J-49B-2020] - 9

Uniontown II, 185 A.3d at 1168.5 

The court noted that pursuant to DOC’s procedures, once the open records officer

receives a RTKL request, “‘there must be no disposal of potentially responsive 

records (no deletion of potentially responsive e-mails, etc.), . . . notice of the RTKL 

request should be considered the equivalent of a litigation hold.’” Id. at 1167 (citing Jt. 

Ex. 1 (RTKL Procedures, 2/12/12) (bold in original)). Further, DOC Policy provides, “[t]he 

open records officer must retain all potentially responsive records obtained from the 

custodian ‘until further notice’ regardless of a record retention schedule permitting 

disposal.” Id. (citing Jt. Ex. 19 at part IV(K)(19)). Here, the Bureau of Health Care 

Services did not receive notice of a hold instruction. N.T. 8/28/17, at 45-46.

The court explained that the RTKL is remedial legislation designed to facilitate 

transparency of government information and to promote accountability. Id. at 1170 (citing 

Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Cmwlth. 2010), aff’d. 75 A.3d 

453 (Pa. 2013)). As such, the court observed that, under the RTKL, proof of bad faith 

does not require establishing fraud or corruption. Id. Rather, an abnegation of mandatory 

duties by an agency, including performance of a detailed search and review of records to 

ascertain if the requested material exists, or if any exclusion may apply, prior to denial of 

access will support a finding of bad faith. Id. (citing Chambersburg Area Sch. Dist. v. 

Dorsey, 97 A.3d 1281 (Pa. Cmwlth. 2014)).

The court noted that Chapter 9 of the RTKL sets forth an agency’s duties when 

responding to a request for records. Upon receiving the request, the officer “must make 

 

5

In the appeal to the OOR, DOC submitted a verification from Director Oppman dated 

November 4, 2014, which stated that the records Haines requested are “presently part of 

a noncriminal investigation that was started by the Department and now includes the 

Department of Health.” Joint Trial Exhibit 6. The verification was prepared by Chase 

DeFelice, in-house counsel for DOC. The court concluded that “Oppman was not directly 

involved in responding to the Request during the request stage.” Uniontown II, 185 A.3d 

at 1168 n.5.
[J-49A-2020 and J-49B-2020] - 10

a good faith effort to determine whether: (1) the record is a public record; and, (2) the 

record is in the possession, custody, or control of the agency.” Id. at 1171. The officer 

also has a duty to “to advise all custodians of potentially responsive records about the 

request, and to obtain all potentially responsive records from those in possession.” Id. at 

1171-72. If the agency does not possess the records in question, but a contractor does, 

the agency must “take reasonable steps to secure the records from the contractor and 

then make a determination if those records are exempt from disclosure.” Id. at 1172 

(brackets omitted). After gathering all the relevant records, the agency must then “review 

the records and assess their public nature under Sections 9016 and 9037 of the RTKL.” 

 

6 Section 901 of the RTKL provides, in relevant part:

§ 67.901. General rule

Upon receipt of a written request for access to a record, an 

agency shall make a good faith effort to determine if the record 

requested is a public record, legislative record or financial 

record and whether the agency has possession, custody or 

control of the identified record, and to respond as promptly as 

possible under the circumstances existing at the time of the 

request.

65 P.S. § 67.901.

7 Section 903 of the RTKL provides, in relevant part:

§ 67.903. Denial

If an agency’s response is a denial of a written request for 

access, whether in whole or in part, the denial shall be in 

writing and shall include:

(1) A description of the record requested.

(2) The specific reasons for the denial, including a 

citation of supporting legal authority.

65 P.S. § 67.903.
[J-49A-2020 and J-49B-2020] - 11

Id. As the Commonwealth Court observed, “[i]t is axiomatic that an agency cannot discern 

whether a record is public or exempt without first obtaining and reviewing the record.” Id.

The court determined that the DOC did not make a good faith effort to establish 

whether it possessed or controlled records responsive to the request. Specifically, the 

court found the DOC made no search for responsive records at the request stage, instead 

identifying the existence of responsive records only after litigation had begun. Id. 

Moreover, the court concluded the DOC failed to obtain all records from its Health Care 

Bureau, Pharmacy Contractor, and other record custodians upon receiving Appellees’ 

request. Id. Accordingly, the court concluded, “[w]ithout obtaining or reviewing any 

records, DOC denied access to responsive public records. DOC’s failure to comply with 

Section 901 prior to issuing its ‘denial’ under Section 903 constitutes bad faith.” Id. 

DOC argues that the open records officer’s denial of Haines’ request cannot 

constitute bad faith because Filkosky complied with Section 502 of the RTKL, which

provides, in relevant part:

§ 67.502. Open-records officer

(a) Establishment. -

(1) An agency shall designate an official or 

employee to act as the open-records officer.

. . .

(b) Functions. -

(1) The open-records officer shall receive requests 

submitted to the agency under this act, direct requests to other 

appropriate persons within the agency or to appropriate 

persons in another agency, track the agency’s progress in 

responding to requests and issue interim and final responses 

under this act.

65 P.S. § 67.502.
[J-49A-2020 and J-49B-2020] - 12

DOC maintains that nothing in Section 502 or any other section of the RTKL places 

on the open records officer a duty to perform an independent record search, physically 

obtain records, review them or assess their content. Rather, it asserts the duty to make 

a good faith effort under Section 901 was placed on the agency, and notes that in this 

case, “Ms. Montag, who was familiar with the records, was part of the agency at the time 

in question.” Appellant’s Brief, at 17.

DOC recognizes that once it receives a request, an agency must perform an 

assessment whether the record requested is a public record. However, it argues that 

while the open records officer may perform the assessment, having someone else do so, 

such as Ms. Montag from the Bureau of Health Care Services, is not a violation of Section 

502, which is silent on the point of who must perform the assessment. Id. at 18.

Appellees assert DOC has misconstrued the Commonwealth Court’s decision

because at no point does the opinion specifically state that the open records officer’s 

failure to search for responsive documents is the basis for the finding of bad faith. Rather, 

it emphasizes that the court points to DOC’s misconduct. 

With respect to the request stage, which is the focus of the instant matter, 

Appellees point out that the testimony from the August 28, 2017 hearing supports the 

court’s findings regarding DOC’s failure to conduct a good faith search for responsive 

records. Filkosky testified that he understood the newspaper had not asked for results of 

the DOC’s investigation into the Abolitionist Report. N.T. 8/28/17, at 139. However, 

based on his conversation with Ms. Montag, he “got the impression that other than the

investigation, the only records that would exist would be inmates’ medical files.” Id. at 

128. He did nothing to confirm his impression nor did he question Ms. Montag as to why 

the response to the Abolitionist Report would cover a request for documents from a third 

party. Id. at 135. 
[J-49A-2020 and J-49B-2020] - 13

Appellees are correct that at no point does the Commonwealth Court specifically 

state the open records officer acted in bad faith, but instead concludes that DOC did so. 

However, as noted above, the court criticized both Filkosky’s unquestioning reliance on 

Ms. Montag’s representations that all responsive records related to the No Escape 

Investigation, and Filkosky’s failure to obtain and review those records to document their 

content or assess any exemptions. Uniontown II, 185 A.3d at 1168. Immediately 

thereafter, the court recognized that “DOC did not perform its duties during the request 

stage in several material respects,” id., all of which directly related to the open records 

officer’s deficient performance. The court subsequently noted:

Here, DOC did not make a good faith effort to determine 

whether it had possession or control of responsive records 

upon receipt of the Request. Critically, it did not perform any 

search for records in response to the Request. 

DOC’s failure to search records in its possession for 

responsive records during the request stage constitutes bad 

faith.

Id. at 1172 (citations omitted). Again, there is a clear identification between the failures 

of the open records officer and the DOC as found by the court. Accordingly, it is 

appropriate for us to consider the duties the court placed on the open records officer in 

this case to “obtain records from sources consulted during the No Escape Investigation; 

review all potentially responsive records; and assess the content of responsive records 

before withholding access.” Id. at 1168.

It is well-settled that “[j]ust like a private corporation, any governmental agency or 

political subdivision, and indeed the Commonwealth itself can only act or carry out its 

duties through real people - its agents, servants or employees.” Moon Area School Dist. 

v. Garzony, 560 A.2d 1361, 1366 (Pa. 1989). Section 901 of the RTKL places upon an 

agency the responsibility to “make a good faith effort to determine if the record requested 
[J-49A-2020 and J-49B-2020] - 14

is a public record . . . and to respond as promptly as possible under the circumstances 

existing at the time of the request.” 65 P.S. § 67.901. Section 502(b)(1) provides that the 

open records officer is the individual who receives the request and “track[s] the agency’s 

progress in responding to requests.” 67 P.S. § 67.502(b)(1). Here, the court apparently 

ascribed to DOC the failure of the open records officer to do anything other than forward 

the request to the Bureau of Health Care Services. Filkosky testified that he did not seek 

an explanation about the Abolitionist Investigation and how it related to the request; did 

not review the request with the Bureau of Health Care Services; did not question the 

narrow interpretation of the request by the Bureau; and did not take any steps to confirm 

whether the only records that existed other than those generated in the ongoing 

investigation were medical records. N.T. 8/28/17, at 134-36.

“When the General Assembly replaced the Right to Know Act in 2009 with the 

current RTKL, it significantly expanded public access to governmental records . . . with 

the goal of promoting government transparency.” Pa. State Police v. Grove, 161 A.3d 

877, 892 (Pa. 2017) (internal quotation and citation omitted). In order to advance this 

goal we conclude it is reasonable to impose on the open records officer a duty to act with 

diligence when “direct[ing] requests to other appropriate persons within the agency.” 

65 P.S. § 502(b)(1). This is what the Commonwealth Court did by implication when it 

faulted Filkosky for his slavish reliance on the Health Care Bureau’s conclusion that the 

only responsive records related to the No Escape Investigation, and for his failure to 

review the allegedly investigative records to determine if they were exempt. Mindful that 

the open records officer is the statutorily designated individual responsible for the record 

gathering process, we reject DOC’s contention the open records officer fulfills his or her 

obligation simply by relying on the representations of others without inquiring as to what 
[J-49A-2020 and J-49B-2020] - 15

investigation was made and without reviewing the records upon which the individual 

responding to the request relied.

Accordingly, we conclude that the Commonwealth Court did not err when it 

determined that DOC acted in bad faith at the request stage, in significant part because 

the open records officer failed to act with diligence in response to Appellee’s request.

Related to this issue, DOC argues the Commonwealth Court’s construction of 

Section 502 raises significant administrative problems because it would require an open 

records officer to know every possible place records could exist, which is impossible for 

an agency the size of DOC. It also asserts that requiring an open records officer to obtain 

a copy of records that the agency maintains are exempt would result in duplication and 

temporary retention of thousands of documents that may never be released. Lastly, it 

asserts that requiring the open records officer to assess the records for responsiveness, 

instead of relying on the determinations of employees who are familiar with them may be 

impossible due to the technical knowledge required to determine if the records are 

responsive to the request. Id. at 19-20.

While cognizant of DOC’s argument, in this instance we nevertheless agree with 

Appellees’ reliance on Com., Dep’t of Envtl. Prot. v. Legere, 50 A.3d 260, 266 (Pa. 

Cmwlth. 2012) where the court held, “[t]here is simply nothing in the RTKL that authorizes 

an agency to refuse to search for and produce documents based on the contention it 

would be too burdensome to do so.” Such concerns must give way to the important goal 

of government transparency, which is the hallmark of the RTKL. See Grove, 161 A.3d at 

892.

As recognized by amicus curiae Pennsylvania NewsMedia Association, ‘[a] good 

faith response - either to produce records or assert an exemption - cannot occur absent 

a good faith search, followed by collection and review of responsive records, so an agency 
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has actual knowledge about the contents of the relevant documents.” Brief of Amicus 

Curiae, at 15. In light of DOC’s failure to take any reasonable steps to respond to 

Appellee’s request, its argument with respect to burdensomeness rings hollow.

II.

DOC next challenges the award of attorney fees under Section 1304 of the RTKL, 

65 P.S. § 67.1304. The court observed that it had jurisdiction under the RTKL to consider 

an award of attorney’s fees, based on Appellees’ prior successful appeal before the OOR. 

After that appeal, the court noted that Appellees began this enforcement action in the 

Commonwealth Court’s ancillary appellate jurisdiction under Chapter 13 of the RTKL. 

Uniontown III, 197 A.3d at 832.

In general, awards of attorney fees in RTKL proceedings are authorized by Section 

1304(a), which provides: 

§ 67.1304. Court costs and attorney fees

(a) Reversal of agency determination.--If a court reverses 

the final determination of the appeals officer or grants access 

to a record after a request for access was deemed denied, the 

court may award reasonable attorney fees and costs of 

litigation or an appropriate portion thereof to a requester if the 

court finds either of the following:

(1) the agency receiving the original request willfully or 

with wanton disregard deprived the requester of 

access to a public record subject to access or 

otherwise acted in bad faith under the provisions of this 

act; or

(2) the exemptions, exclusions or defenses asserted by 

the agency in its final determination were not based on 

a reasonable interpretation of law.
[J-49A-2020 and J-49B-2020] - 17

65 P.S. § 67.1304(a).

The court noted that the term “final determination” is used in two different ways in 

Section 67.1304(a). The section refers to “the final determination of the appeals officer” 

in the text of Subsection (a) and “the agency in its final determination” in the text of 

Subsection (a)(2). Id. at 834 (quoting 65 P.S. §67.1304). The court concluded that the 

term “final determination” was therefore ambiguous. It framed the question as “whether 

attorney fees are reserved for when the Court reverses an appeals officer’s determination, 

as opposed to when a receiving agency’s determination is reversed.” Id. (emphasis in 

original).

The court concluded that the best reading of Section 67.1304(a) is to authorize 

attorney fees when an agency’s determination is reversed. Judge Simpson noted that a 

contrary interpretation would be unreasonable and yield absurd results. Id.; see also 1 

Pa.C.S. § 1922(1). Construing the section to mean an appeals officer’s determination 

“would penalize a requester for prevailing in its Chapter 11 appeal . . . because when an 

appeals officer recognizes a requester’s access rights in the administrative proceeding, 

reversing that appeals officer’s determination would be adverse to the requester.” Id.

(emphasis in original). The court continued that if the section required “reversal of an 

appeals officer’s final determination is a prerequisite for requester’s recovery under 

Section 1304(a), the agency accused of bad faith may preclude this remedy by electing 

not to appeal the final determination to a Chapter 13 Court.” Id. As a result, “the most 

egregious of agency conduct, and the denials of access recognized as improper during 

the Chapter 11 appeal, could go unchecked.” Id. The Commonwealth Court offered this 

case as an illustration of the problems such an interpretation would create.

Consider the current case. DOC disregarded its disclosure 

duties during each stage of the RTKL process and did not 

comply with the appeals officer’s final determination in 

Requester’s favor. Because it obtained the Disclosure Order, 
[J-49A-2020 and J-49B-2020] - 18

Requester had no interest in this Court reversing the appeals 

officer’s final determination. However, DOC elected to not 

appeal, yet did not discover or disclose all responsive records 

until after years of litigation. Requester here advocated the 

public interest in a matter of public health affecting a captive 

population. Its recovery of fees should not turn on whether a 

noncompliant agency appealed to this Court.

In the context of “bad faith,” if an agency denied access 

improperly, it is more likely that an appeals officer would 

decide disclosure in a requester’s favor. Presuming an 

agency committed bad faith, and disregarded the RTKL 

process at each stage as DOC did here, then on appeal, a 

Chapter 13 Court is more likely to affirm an appeals officer’s 

determination in a requester's favor than to reverse it.

Id. (emphasis in original).

The court also concluded that its construction was supported by cases construing 

the Right to Know Act, the RTKL’s predecessor. Specifically, in Parsons v. Pa. Higher 

Educ. Assistance Agency, 910 A.2d 177 (Pa. Cmwlth. 2006) (en banc), appeal denied, 

917 A.2d 316 (Pa. 2007), the Commonwealth Court held that the attorney fees provision 

of the [Right to Know Act] permitted an award of attorney fees “if a court reverses an 

agency’s final determination[.]” Parsons, 910 A.2d at 188. Based on these 

considerations, the court construed “Section 1304(a)(1) of the RTKL as permitting

recovery of attorney fees when the receiving agency determination is reversed, and it 

deprived a requester of access to records in bad faith.” Uniontown III, 197 A.3d at 835. 

Therefore, the court held Appellees were entitled to reasonable attorney fees.8 

In this case, Appellees requested fees totaling $215,190.75. Id. After reviewing 

the legal parameters surrounding what constitutes “reasonable” attorney fees, and upon 

consideration of the evidence presented, the Commonwealth Court reduced the amount 

of attorney fees to $118,458.37. Id. at 841.

 

8

In light of its conclusion on Section 67.1304(a), the court declined to decide whether the 

Costs Act would allow Appellees to recover attorney fees. Uniontown III, 197 A.3d at 835; 

see also generally 42 Pa.C.S. § 2503(7).
[J-49A-2020 and J-49B-2020] - 19

DOC asserts that the Commonwealth Court erred in concluding that the term “final 

determination” in Section 1304(a) is ambiguous. It argues, “[w]hile it is true that the term 

is used in two places to address different determinations, each use is clear in itself.” 

Appellant’s Brief at 22. DOC notes that while Section 1304(a) provides for imposition of 

costs and attorney fees if the court reverses “the final determination of an appeals officer,”

Section 1304(a)(2) refers to the final determination of the agency in answering the 

request. Id. 

DOC draws our attention to Section 1921(b) of the Statutory Construction Act, 

which provides that “[w]hen the words of a statute are clear and free from all ambiguity, 

the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S § 

1921(b). It avers that the plain language of Section 1304(a) “limits court costs and fees 

imposed to two instances --- reversal of the appeals officer or grant of a deemed denial.” 

Id. Here, the Commonwealth Court did not reverse the appeals officer because no appeal 

was taken from her order. Nor was there a deemed denial by the agency. Accordingly, 

DOC argues that in light of the plain language of the statute, the court should not have 

resorted to the principles of statutory construction.

Appellees offer several reasons in support of their position that we should affirm 

the Commonwealth Court’s interpretation of Section 1304(a). Initially, they note that the 

heading of the section, “reversal of an agency decision,” indicates that the provision 

applies any time an agency’s decision to deny access is reversed. In addition, they assert 

the multiple references to a “final determination” in Section 1304(a), along with the 

heading of the section create an ambiguity that justifies the Commonwealth Court’s 

reliance on canons of statutory construction. See, Narberth Borough v. Lower Merion 

Twp., 915 A.2d 626, 634 (Pa. 2007) (statutory interpretation principles apply when “the 
[J-49A-2020 and J-49B-2020] - 20

plain language of the statute, standing alone, leaves room for doubt as to its intended 

meaning.”).

Appellees emphasize that “[t]he object of all interpretation and construction of 

statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. 

§ 1921(a). This Court held that “the objective of the RTKL is to empower citizens by 

affording them access to information concerning the activities of their government.” Levy 

v. Senate of Pennsylvania, 65 A.3d 361, 381 (Pa. 2013) (quotation and citation omitted). 

“Courts should liberally construe the RTKL to effectuate its purpose of promoting access 

to official government information in order to prohibit secrets, scrutinize the actions of 

public officials, and make public officials accountable for their actions.” Id. Appellees’ 

Brief at 36-37.

When interpreting a statute, we are mindful that “the General Assembly does not 

intend a result that is absurd.” 1 Pa.C.S. § 1922(1). Echoing the Commonwealth Court, 

Appellees argue that limiting fees to situations where the court reverses an order of the 

OOR appeals officer would render such a result. “If reversal of the OOR was a 

prerequisite to fees, the RTKL would penalize a requestor for prevailing at the OOR.” Id.

at 37. 

Appellees further assert this Court has recognized that the RTKL, which replaced 

the former Right to Know Act, “was a dramatic expansion of the public’s access to 

government documents” and “demonstrate[s] a legislative purpose of expanded 

government transparency through public access to documents.” Levy, 65 A.3d at 381. 

The Right to Know Act contained the following fee shifting provision:

(a) Reversal of agency determination. If a court 

reverses an agency’s final determination, the court may award 

reasonable attorney fees and costs of litigation or an 

appropriate portion thereof to a requester if the court finds 

either of the following:
[J-49A-2020 and J-49B-2020] - 21

(1) the agency willfully or with wanton disregard 

deprived the requester of access to a public record subject to 

access under the provisions of this act; or

(2) the exemptions, exclusions or defenses 

asserted by the agency in its final determination were not 

based on a reasonable interpretation of the law.

65 P.S. § 66.4-1(a) (repealed).

Noting that Section 1304(a) of the RTKL has the identical heading as Section 66.4-

1(a) of the Act, Appellees suggest the RTKL should be read in accord with the 

predecessor statute. To do so is consistent with this Court’s direction that when 

discerning legislative intent we may consider “the former law, if any, including other 

statutes or regulations upon the same or similar subjects.” Com. v. Giulian, 141 A.3d 

1262, 1268 (Pa. 2016). Further supporting this position, Appellees note that while the 

RTKL bill was before the Senate, the focus was on strengthening the enforcement 

provisions and facilitating fee shifting:

Another criticism of Senate Bill No. 1 is the fact that it removes 

criminal penalties which have existed since the current law 

was adopted. This was done because we can find no 

evidence of a single criminal prosecution under the 1957 law, 

and because the ACLU and the Attorney General of 

Pennsylvania agree that criminal, sanctions were an 

inappropriate remedy. Although Senate Bill No. 1 removes 

the criminal penalties, it also significantly strengthens civil 

penalties for noncompliance and makes it easier for a plaintiff 

to recover attorney fees if an agency acts in bad faith. I 

believe these are things that will have a practical, meaningful 

effect on people’s ability to obtain records.

SB 1, PN 1583 - Pa. Legis. J., No. 89, Sess. of 2007, Bill on Third Consideration and 

Final Passage, at 1407 (Pa. 2007) (Sen. Pileggi).

Because the intent of the Legislature when enacting the RTKL was to expand 

access to government records, Appellees argue it would be unreasonable to limit fee 
[J-49A-2020 and J-49B-2020] - 22

shifting to a narrower set of circumstances than provided for in the Right to Know Act. 

Accordingly, consistent with its predecessor, the enforcement provision of the RTKL 

should apply “where an agency’s final decision to deny access is reversed and found to 

be in bad faith.” Appellees’ Brief, at 40.

Appellees further challenge DOC’s position that only a deemed denial as opposed 

to an express denial can serve as a basis for fee shifting. They note that throughout the 

RTKL no distinction is made between deemed and express denials. Accordingly, relying 

on the rule that “[e]very statute shall be construed, if possible, to give effect to all its 

provisions,” 1 Pa.C.S. § 1921(a), Appellees argue that deemed and express denials give 

requestors the same rights under the RTKL. Id. at 40-41.

Appellees maintain the enforcement provisions of the RTKL should be viewed in a 

manner consistent with Section 1932(b) of the Statutory Construction Act, which provides, 

in relevant part, “[s]tatutes in pari materia shall be read together. 1 Pa.C.S. § 1932(b), 

Appellees point out that Section 1305(a) of the RTKL permits a civil penalty of up to 

$1,500 “if an agency denied access to a public record in bad faith.” 65 P.S. § 67.1305. 

Because this section applies any time a bad faith denial of access occurs, Appellees 

assert that a similar standard should apply to the fee shifting provisions of Section 

1304(a). Id. at 41.

Our resolution of this issue is grounded on whether Section 1304(a) is ambiguous. 

As this Court has noted:

In matters involving statutory interpretation, the Statutory 

Construction Act directs courts to ascertain and effectuate the 

intent of the General Assembly. 1 Pa.C.S. § 1921(a). A 

statute’s plain language generally provides the best indication 

of legislative intent. See, e.g., McGrory v. Dep’t of Transp., 

591 Pa. 56, 915 A.2d 1155, 1158 (2007); Commonwealth v. 

Gilmour Mfg. Co., 573 Pa. 143, 822 A.2d 676, 679 (2003). In 

construing the language, however, and giving it effect, “we 
[J-49A-2020 and J-49B-2020] - 23

should not interpret statutory words in isolation, but must read 

them with reference to the context in which they appear.” 

Roethlein v. Portnoff Law Assocs., Ltd., 623 Pa. 1, 81 A.3d 

816, 822 (2013), citing Mishoe v. Erie Ins. Co., 573 Pa. 267, 

824 A.2d 1153, 1155 (2003). Accord Commonwealth v. Office 

of Open Records, 628 Pa. 163, 103 A.3d 1276, 1285 (2014) 

(statutory language must be read in context; in ascertaining 

legislative intent, every portion is to be read together with 

remaining language and construed with reference to statute 

as a whole).

The United States Supreme Court also takes a contextual 

approach in assessing the plain language of statutes and in 

determining if an ambiguity exists. See generally King v. 

Burwell, 576 U.S. 473, 486, 135 S.Ct. 2480, 2489, 192 

L.Ed.2d 483 (2015) (“If the statutory language is plain, we 

must enforce it according to its terms. But oftentimes the 

meaning—or ambiguity—of certain words or phrases may 

only become evident when placed in context. So when 

deciding whether the language is plain, we must read the 

words in their context and with a view to their place in the 

overall statutory scheme.” (internal quotation marks and 

citations omitted)); Yates v. United States, 574 U.S. 528, 537, 

135 S.Ct. 1074, 1081–82, 191 L.Ed.2d 64 (2015) (“‘[T]he 

plainness or ambiguity of statutory language is determined 

[not only] by reference to the language itself, [but as well by] 

the specific context in which that language is used, and the 

broader context of the statute as a whole.’ Ordinarily, a word’s 

usage accords with its dictionary definition. In law as in life, 

however, the same words, placed in different contexts, 

sometimes mean different things.” (internal citations omitted)).

Com. v. Giulian, 141 A.3d at 1266.

Like the Commonwealth Court, we conclude that the use of the term “final 

determination” with respect to the appeals officer and to the agency in the same section 

renders the term ambiguous in Section 1304(a).

In light of this ambiguity, recourse to statutory interpretation is appropriate. 

Foremost, we look to the intent of the legislature when enacting the RTKL. As this Court 
[J-49A-2020 and J-49B-2020] - 24

has recognized, “the objective of the RTKL . . . is to empower citizens by affording them 

access to information concerning the activities of their government.” SWB Yankees, LLC 

v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). “We are obliged to liberally construe 

the [RTKL] to effectuate its salutary purpose of promoting access to official government 

information in order to prohibit secrets, scrutinize actions of public officials and make 

officials accountable for their actions.” Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 

29 (Pa. 2015) (quotation and citation omitted). 

As noted, the fee shifting provision of the Right to Know Act provided for an award 

of reasonable attorney fees and cost of litigation where “a court reverses an agency’s 

final determination.” 65 P.S. § 66.4-1(a) (repealed). If we were to accept DOC’s position 

that Section 1304 only permits recovery of attorney fees and costs where the court 

reverses the determination of the appeals officer or the agency deems the request denied, 

a requester would have less rights under the RTKL than under the repealed Right to Know 

Act. Considering that the RTKL “significantly expanded public access to governmental 

records . . . with the goal of promoting government transparency,” Grove, 161 A.3d at 

892, such a result is contrary to legislative intent.

Moreover, as the Commonwealth Court recognized, making the reversal of the 

appeals officer’s determination a prerequisite for imposition of attorney fees and costs

can lead to an absurd result. In this case, after DOC denied Appellees’ request, they 

sought relief from the OOR appeals officer who issued a disclosure order in their favor. 

Having received the relief they requested, Appellees had no reason to seek further 

appeal. DOC chose not to appeal, yet nevertheless failed to “discover or disclose all 

responsive records until after years of litigation.” Uniontown III, 197 A.3d at 834. The 

effect of DOC’s proposed reading of Section 1304 is that a requester who is successful 

at the OOR is prevented from seeking attorney fees and costs if an agency does not file 
[J-49A-2020 and J-49B-2020] - 25

an appeal. The practical effect of DOC’s position is to limit a requester to “a civil penalty 

of not more than $1,500 if an agency denied access to a public record in bad faith.” 65 

P.S. § 67.1305. 

Consistent with the purpose of the RTKL, we affirm the conclusion of the 

Commonwealth Court that Section 1304(a)(1) “permit[s] recovery of attorney fees when 

the receiving agency determination is reversed, and it deprived a requester of access to 

records in bad faith.” Id. at 835.

Chief Justice Saylor and Justices Baer and Donohue join the opinion.

Justice Wecht files a concurring and dissenting opinion in which Justice Todd joins.

Justice Dougherty files a dissenting opinion.