IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet and Scott Brunermer, :

 Appellants :

:

v. :

: No. 661 C.D. 2021

Apollo Borough : Submitted: February 11, 2022

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE LORI A. DUMAS, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE FIZZANO CANNON FILED: July 28, 2022

Janet and Scott Brunermer (Brunermers) appeal pro se from the May 

12, 2021, order of the Court of Common Pleas of Armstrong County (trial court), 

which granted relief in the Brunermers’ mandamus action arising from a request 

pursuant to Pennsylvania’s “Right-to-Know” Law (RTKL)1 but declined to assess 

attorneys’ fees or civil penalties against Apollo Borough (Borough). Upon review, 

we affirm.

I. Factual & Procedural Background

In February 2020, the Brunermers submitted a RTKL request to the 

Borough asking for “Borough-related e-mails to and from Brenda Troup [Troup], 

Zoning Officer, from personal and business e-mail accounts, 

1 Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2

contact@thefishbowltoo.com [Fishbowl account] and rechhaben@gmail.com

[Gmail account] from April 2017 – February 2020.”2 Office of Open Records 

(OOR) Final Determination, 6/5/20, at 1; Reproduced Record (R.R.) at 240a-47a. In 

March 2020, after taking a standard 30-day extension, the Borough produced 

documentation responsive to the Brunermers’ request.3 R.R. at 28a-33a. The 

Brunermers appealed to the OOR, which invited the parties to supplement the record

and accepted additional submissions from both sides. Id. at 242a.

The OOR concluded in a June 2020 final determination that the 

Borough had not conducted a sufficient search for records when it received the 

Brunermers’ initial request and since then had not shown that there were no further 

responsive records in its possession or the possession of any possible third parties. 

R.R. at 246a. The OOR ordered the Borough to search for and provide any 

additional records within 30 days. Id. In July 2020, the Brunermers filed a 

mandamus action in the trial court alleging that the Borough failed to conduct a good 

faith search for responsive documentation, which warranted imposition of attorneys’ 

fees, costs, and civil penalties. Id. at 1a-15a.

Hearings were held in February and March 2021, during which counsel 

for the Borough acknowledged that some individuals were not asked to produce 

documents responsive to the February 2020 request until after the Brunermers filed 

their mandamus action in July 2020. R.R. at 710a. Scott Brunermer testified that in 

an unrelated mandamus action the Brunermers brought against the Borough, the 

2 The Brunermers also requested documentation from boroughmanager@yahoo.com, but 

ultimately withdrew their claims regarding that address based on the Borough’s verification that 

the address was not associated with the Borough. Trial Ct. Rule 1925(a) Op. at 2 n.1; Reproduced 

Record (R.R.) at 872a.

3 The subject matter pertains to a dispute between the Brunermers and the Borough as to 

permissible uses of a property owned by the Brunermers. 
3

Brunermers received an email between Grant Kanish (Kanish), the Borough’s 

building code official, and Troup at the Fishbowl account that was responsive to the 

Brunermers’ RTKL request here but was not provided to the Brunermers as part of 

the Borough’s RTKL response. R.R. at 674a. Kanish testified that Borough 

Solicitor Scott Andreassi (Andreassi) asked him for emails among himself, Troup, 

Andreassi, and other Borough personnel, but Kanish did not remember the date of 

the request. Id. at 683a-84a. Kanish recalled providing Andreassi with printouts of 

every email he could find after doing a search for the names of Troup, Andreassi, 

the Borough, and the Fishbowl and Gmail accounts, but did not remember when he 

did that. Id. at 684a-87a & 693a. After providing Andreassi with what he had, 

Kanish had no further involvement in this matter. Id. at 687a-89a. Kanish stated 

that the August 2020 affidavit he completed indicating he had no other responsive 

documents was true and accurate to the best of his knowledge when he signed it. Id. 

at 693a.

Richard Craft (Craft), the Borough’s engineer, testified that Andreassi 

contacted him in August 2020, after the Brunermers filed their complaint, and asked 

him to gather any emails relevant to the Brunermers’ initial RTKL request, which 

Craft stated he did by searching his project email folders and his inbox generally. 

R.R. at 697a & 701a. Craft was not asked to seek emails from other people at his 

engineering firm and he did not ask anyone else on his own. Id. at 698a-99a. He 

acknowledged that David Hill (Hill), an architect with his firm, was copied on many 

of the emails he produced, but Craft stated that he was the primary contact between 

his firm and the Borough and that Hill was not directly involved in any matters 

concerning property owned by the Brunermers. Id. at 700a & 702a-03a. Craft stated 

that the August 2020 affidavit he signed indicating he had no other responsive 
4

documents was true and accurate to the best of his knowledge when he signed it. Id. 

at 703a.

Jamie Johnston (Johnston), an assistant secretary for the Borough, 

testified she was asked by Andreassi in June or July 2020 to look for emails between 

herself and Troup’s Fishbowl and Gmail accounts. R.R. at 708a & 712a. She 

provided everything that came up when she searched her email account for those

addresses. Id. at 712a-13a. She had no intent to withhold information or documents,

and the August 2020 affidavit she signed indicating she had no other responsive 

documents was true and accurate to the best of her knowledge when she signed it. 

Id. at 714a-15a.

Deanna Shupe (Shupe), the Borough secretary and treasurer, stated that 

one of her duties is to handle RTKL requests and that she received the Brunermers’ 

request in February 2020. R.R. at 717a. She searched her own emails for Troup’s 

Fishbowl and Gmail addresses. Id. at 720a. She also asked Troup to search her 

emails and included Troup’s responses with her own when she responded to the 

request in March 2020. Id. at 721a & 723a. She did not double-check with Troup 

about what Troup provided to her, and because she did not have access to Troup’s 

email accounts, she was unable to review whether Troup’s responses were complete. 

Id. at 744a-46a. She turned over everything she found and received from Troup and 

did her best to be thorough but acknowledged that additional emails were later found

when she learned of other ways to search. Id. at 720a-31a, 744a & 750a. The 

affidavit she completed for the March 2020 response was accurate based on what 

she had done at that time. Id. at 722a. She could not recall whether she asked anyone 

else for information responsive to the Brunermers’ request. Id. at 725a. She did not 

personally redact any information from the materials she provided. Id. at 739a-40a. 
5

She did not know why some people were not asked for information until after the 

Brunermers filed their mandamus action in July 2020, but Andreassi told her that he 

would be asking some people, so she did not duplicate his efforts. Id. at 723a, 733a34a & 748a. She did not intentionally withhold any documents or information. Id. 

at 749a.

Troup testified that she has been the Borough’s appointed zoning 

officer on an independent contractor basis since 2012; she does not have a formal 

contract with the Borough. R.R. at 785a. Andreassi asked her to respond to the 

Brunermers’ request when it was first received. Id. at 767a. She looked through her 

emails and found six or seven that she gave to Andreassi. Id. at 768a. She was later 

asked several times to check and make sure she had provided a complete response. 

Id. She did not recall Shupe asking her for the names of people she had emailed. Id. 

at 769a. She primarily used her Gmail account for Borough matters but 

acknowledged that some emails may have been through the Fishbowl account, which 

is for her personal business. Id. at 770a. She acknowledged deleting emails because 

she did not believe they needed to be kept and was not aware of a Borough policy 

on record retention. Id. at 773a-74a. She acknowledged several emails she either 

sent or received regarding the Brunermers’ property. Id. at 779a-83a. She 

maintained that she provided everything she had and did not intentionally withhold 

any documents or information. Id. at 788a.

Andreassi, the Borough solicitor, testified that prior to the events at 

issue here, he began helping Shupe with RTKL requests. R.R. at 791a. Generally, 

when Shupe received a request, he would review it and advise her. Id. When she 

compiled a response, he would review it before it was sent to the requester. Id. at 

791a-92a. He contacted many of the individuals in this matter, advised them to 
6

produce any information they had, and produced it as it was provided to him. Id. at 

797a-98a. He did not redact any information and did not withhold any attachments 

to responsive emails. Id. at 796a-97a. He acknowledged that after the Brunermers 

filed their complaint, he used the information in it to conduct another round of 

searches. Id. at 800a.

The trial court found the Borough had a duty to comply with the OOR’s 

final determination and ordered the Borough to conduct a reasonable and good faith 

search for any additional records. Trial Ct. Adjudication & Order, 5/12/21; R.R. at 

854a-57a. However, the trial court declined to find that the Borough had acted in 

bad faith. R.R. at 855a. The trial court noted that the Borough had not refused or 

failed to conduct a search for records, did not object or claim exemptions to the 

Brunermers’ request, and had continued to search throughout the litigation in an 

effort to comply. Id. The trial court therefore denied the Brunermers’ requests to 

assess attorneys’ fees and civil penalties against the Borough. Id. at 857a.

The Brunermers filed a statement of errors complained of on appeal 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) (Rule 1925 

Statement) and the trial court issued an opinion pursuant to Rule 1925(a). See

Pa.R.A.P. 1925(a) & (b); R.R. at 860a-64a & 871a-83a. The trial court concluded 

that the Brunermers’ Rule 1925 Statement failed to raise “discrete allegations of 

error”; the only discernible assertion was that the trial court should have found that

the Borough acted in bad faith and was subject to attorneys’ fees and penalties. R.R. 

at 871a & 880a-83a. The matter is now before this Court.4

4 Under the RTKL, when the request for records is directed to a local agency, the trial court 

reviews the OOR’s determination with a de novo standard and a plenary scope; in this context, our 

appellate review is limited to determining whether the trial court has committed an error of law 

and whether the findings of fact are supported by substantial evidence. Off. of Dist. Att’y of Phila. 

v. Bagwell, 155 A.3d 1119, 1123 n.3 (Pa. Cmwlth. 2017) (Bagwell).
7

II. Discussion

Agencies have a mandatory duty to conduct a good faith search for 

records sought pursuant to a RTKL request. Section 901 of the RTKL states:

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. In the RTKL context, bad faith does not require a showing of 

fraud or corruption by the agency; a lack of good faith compliance and failure to 

meet the mandatory duty of disclosure may rise to the level of bad faith without a 

showing of intent to withhold information. Uniontown Newspapers, Inc. v. Dep’t of 

Corr., 185 A.3d 1161, 1170 (Pa. Cmwlth. 2018) (Uniontown Newspapers II)

(Simpson, J., single judge op.).

5

 Failing to perform a search until a matter is in 

litigation, which may be shown by the existence of responsive records that later 

come to light, may also constitute bad faith. Id. 

A. Attorneys’ Fees

The purpose of attorneys’ fees under the RTKL is to “remedy the 

damage to the requester where an agency has denied access to records in bad faith 

and to the agency where a requester has launched a frivolous challenge to a denial 

of access by restoring the requester or the agency to the place where each would 

have been prior to petitioning the court for review.” Off. of the Dist. Att’y of Phila. 

5 Pursuant to Section 414(b) of this Court’s Internal Operating Procedures, single-judge 

opinions, even if reported, may be cited only for their persuasive value and are not binding 

precedent. 210 Pa. Code. § 69.414(b).
8

v. Bagwell, 155 A.3d 1119, 1140 (Pa. Cmwlth. 2017) (Bagwell). A trial court may 

order payment of attorneys’ fees to a requester pursuant to Section 1304(a) of the 

RTKL, which provides:

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

the final determination of the appeals officer[6] or grants 

access to a record after a request for access was deemed 

denied,[7]the court may award reasonable attorney[s’] 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.

65 P.S. § 67.1304(a). 

The leading cases on bad faith attorneys’ fees in RTKL matters arise 

out of recent litigation between Uniontown Newspapers, Inc., and the Department 

of Corrections (DOC). The dispute arose in 2014 when a reporter requested 

information from the DOC concerning potential exposure of inmates to toxic coal

waste at the State Correctional Institution-Fayette. Uniontown Newspapers, Inc. v. 

Pa. Dep’t of Corr., 151 A.3d 1196, 1200 (Pa. Cmwlth. 2016) (Uniontown 

Newspapers I). The DOC denied the request in its entirety, asserting the records 

6

In Uniontown Newspapers, Inc. v. Department of Corrections, 243 A.3d 19, 33-34 (Pa. 

2020) (Uniontown Newspapers IV), our Supreme Court held that the “appeals officer” in this 

section is the records officer of the agency subject to the RTKL request.

7 Attorneys’ fees are recoverable when an access request is deemed denied. Under the 

RTKL, a request is “deemed denied” where there is a failure to respond to the request within a 

statutory deadline. Uniontown Newspapers v. Dep’t of Corr., 197 A.3d 825, 832 n.4 (Pa. Cmwlth. 

2018) (Uniontown Newspapers III) (Simpson, J., single judge op.) (citing McClintock v.

Coatesville Area Sch. Dist., 74 A.3d 378 (Pa. Cmwlth. 2013)).
9

were part of an internal investigation and therefore not subject to disclosure. Id. The 

OOR disagreed and ordered disclosure, after which the DOC released some 

documentation, but the requester filed a petition for review asking this Court to 

enforce the OOR’s order and compel further disclosure. Id. at 1201. This Court 

largely denied the parties’ cross-motions for summary relief and ordered further factfinding as to the extent of the DOC’s noncompliance and whether the DOC acted in 

bad faith.8 Id. at 1209.

Subsequently, this Court found that the DOC’s records custodian had 

not independently addressed the request, but had forwarded it to the DOC’s health 

bureau and then relied on the health bureau’s position that all requested records were 

exempt from disclosure. Uniontown Newspapers II, 185 A.3d at 1168. This Court 

found bad faith based on the DOC’s denial of the request without having conducted 

a good faith search, its decision to contest the requester’s appeal to the OOR while 

still failing to obtain and assess all potentially responsive records, and its failure to 

comply with the OOR’s disclosure order. Id. at 1172-73. This Court also found that 

the DOC acted in bad faith when it failed to locate and disclose responsive records 

after the order and instructions set forth in Uniontown Newspapers I. Id. at 1173-

74. We noted: “Critically, [DOC] did not perform any search for records in response 

to the Request. . . . Without obtaining or reviewing any records, DOC denied access 

to responsive public records. DOC’s failure to [conduct a good faith search] prior 

to issuing its ‘denial’ . . . constitute[d] bad faith.” Id. at 1172. We also explained 

that

8 When a state agency is the subject of a RTKL enforcement action, a single judge of the 

Commonwealth Court serves as the arbiter of disputes over attorneys’ fees and civil penalties. 

When, as in this case, a local agency is the subject, the common pleas court serves that role. See 

Uniontown Newspapers III, 197 A.3d at 835 n.8.
10

DOC’s delay in complying with the Disclosure Order was 

unreasonable. Once this Court issued the Summary Relief 

Opinion, there was no excuse for further delay. Yet, DOC 

forced Requester to expend time and resources to discern 

what responsive records remained undisclosed. Under 

these circumstances, DOC’s persistent denial of access 

constitute[d] bad faith.

Id. at 1174.

After a hearing, this Court awarded the requester attorneys’ fees 

because the DOC had acted in bad faith and denied disclosure willfully and with 

knowing disregard of the requester’s rights to access. Uniontown Newspapers, Inc. 

v. Pa. Dep’t of Corr., 197 A.3d 825, 834-35 (Pa. Cmwlth. 2018) (Uniontown 

Newspapers III) (Simpson, J., single judge op.). Our Supreme Court affirmed.

Uniontown Newspapers, Inc. v. Dep’t of Corr., 243 A.3d 19, 24, 34 (Pa. 2020) 

(Uniontown Newspapers IV).

Here, the Brunermers argue that the Borough’s initial search and 

response was insufficient and that the Borough failed to comply with its statutory 

duties under the RTKL, including its production of additional records after the 

Brunermers began litigation; the Brunermers claim this amounted to bad faith 

sufficient to warrant an award of attorneys’ fees. Brunermers’ Br. at 20-32; 

Brunermers’ Reply Br. at 3-6. The Borough responds that its actions did not 

constitute a bad faith denial or refusal to search for records. Borough’s Br. at 7. 

Rather, the Borough asserts that it made good faith efforts to respond to the 

Brunermers’ multiple RTKL requests (other legal actions between these parties are 

pending). Id. at 7-10.

The trial court found that the Borough had not denied the Brunermers’ 

request or claimed exemptions from disclosure and had engaged in a valid search for 

responsive documentation. Trial Ct. Rule 1925(a) Op. at 11; R.R. at 881a. The trial 
11

court added that although the Borough had not provided a complete response to the 

Brunermers’ request, the evidence and circumstances, including the Brunermers 

having filed several lawsuits and dozens of requests within the preceding calendar 

year, indicated that the Borough had not acted in bad faith. Id. at 11-12; R.R. at 

881a-82a (“[T]he Borough acted slowly and without adequate staff or open records 

training, but not in bad faith.”). 

We note that Section 1304(a) applies where a reviewing court reverses 

the agency’s denial of disclosure or grants access after a deemed denial, which 

occurs when an agency fails to timely respond to a request. 65 P.S. § 67.1304(a). 

Assuming, without deciding, that the initial requirement for applicability of Section 

1304(a) was met, the trial court’s finding that the Borough did not act in bad faith is 

supported by substantial evidence of record. It is true that in the context of the 

RTKL, intent to wrongfully withhold disclosure is not required for a finding of bad 

faith and that an agency’s failure to provide an adequate response to a request may

be the basis for such a finding. Uniontown Newspapers II, 185 A.3d at 1170. 

However, a trial court, as the reviewing court, is the finder of fact, and its conclusion 

regarding a party’s bad faith will be upheld unless the opponent establishes that it is 

legally erroneous or unsupported by substantial evidence of record. Bagwell, 155 

A.3d at 1123 n.3.

The Borough’s witnesses testified that when they learned of the 

Brunermers’ request, they searched their emails and provided what they found. R.R. 

at 684a-87a, 697a, 701a, 712a-13a, 720a-31a & 768a. The witnesses also confirmed 

that their affidavits accompanying their submissions were true and accurate to the 

best of their knowledge when they completed them. Id. at 693a, 703a, 714a-15a & 

722a. Shupe, the Borough’s de facto RTKL officer, candidly acknowledged that 
12

after she sent her first submission, she found other documents when she learned 

different ways to search her email accounts, but that she did her best to be thorough. 

Id. at 720a-31a, 744a & 750a. She asked Troup, the Borough’s appointed zoning 

officer, for documentation and passed along what she received from Troup, but had 

no way to confirm whether Troup’s submission was complete because she did not 

have access to Troup’s accounts. Id. at 744a-746a. 

Troup also candidly acknowledged that she had deleted Boroughrelated emails in the past because she did not believe they needed to be kept and that 

she was not aware of a Borough policy on record retention. R.R. at 773a-74a. She 

nevertheless averred that she had turned over everything she found. Id. at 788a. 

Andreassi, the Borough solicitor, acknowledged that after the Borough’s initial 

response in March 2020, when he read the Brunermers’ complaint commencing their 

action, he made further inquiries based on the information in that filing that 

apparently had not been known to him beforehand. Id. at 800a. 

Here, the trial court did not expressly credit the Borough’s witnesses, 

but it did so by necessary implication in concluding the Borough’s actions did not 

amount to bad faith so as to warrant attorneys’ fees. The trial court particularly noted 

that while the Borough’s failure to initially provide all responsive information could

result in a finding of bad faith, the totality of circumstances and evidence here did 

not warrant such a finding. Trial Ct. Rule 1925(a) Op. at 11-12; R.R. at 881a-82a. 

Although the Brunermers attempted to portray the Borough’s conduct as obstructive, 

the trial court found no support in the record for that characterization. Id. at 11; R.R. 

at 881a. 

We agree. The circumstances here are distinguishable from the facts in 

the Uniontown Newspapers cases, where the DOC denied the initial request without 
13

conducting a search, then repeatedly failed to locate and disclose documents after 

orders by both the OOR and this Court to do so. Here, the Borough did not deny the 

Brunermers’ request or claim exemptions to disclosure. The Borough witnesses 

testified that they did their best to comply with the initial request, then voluntarily 

and independently searched for more records when they learned better methods to 

do so or, in the instance of Andreassi, when he learned from the Brunermers’ 

complaint of additional potential information subject to disclosure. Although a lack 

of resources does not justify nondisclosure, the Borough did not assert its lack of 

resources as an excuse, and the trial court found as fact that in the context of the 

Brunermers’ multiple requests and lawsuits, the Borough had essentially done its 

best. But see Pa. State Sys. of Higher Educ. v. Ass’n of State Coll. & Univ. Faculties, 

142 A.3d 1023, 1032 (Pa. Cmwlth. 2016) (stating that “just because an agency 

claims it neither has the time nor resources to conduct a document-by-document 

review within the time-period required by the RTKL does not make it so”). Unlike 

in the Uniontown Newspapers cases, the record here does not indicate the Borough 

acted willfully, with wanton disregard of its responsibilities, or otherwise in bad 

faith.9 As the record supports the trial court’s conclusion, the court did not err in 

declining to impose attorneys’ fees on the Borough. 

9

In a March 18, 2022, post-submission filing, the Brunermers asked this Court to consider 

California University of Pennsylvania v. Bradshaw (Pa. Cmwlth., No. 1491 C.D. 2018, filed Oct. 

13, 2021) (Brobson, P.J., single judge op.) (unreported), where a single judge of this Court, acting 

as the reviewing court, imposed attorneys’ fees and civil penalties on the university after finding 

that it acted in bad faith when it denied a RTKL request based on a clearly unreasonable 

interpretation of the law and admittedly failed to conduct any search before issuing the denial. Id., 

slip op. at 13-16. The university had pursued its legally insufficient denial as far as our Supreme 

Court, which denied allocatur, before conducting a search and determining that no responsive 

records existed. Id., slip op. at 14-15. Had the university conducted a search prior to denying and 

litigating the request, several years of litigation could have been “short-circuited.” Id. This case 

is distinguishable from Bradshaw because the Borough did not deny, claim exemptions to, or 

litigate the Brunermers’ request, and the record here contains no indication of bad faith conduct 

on the part of the Borough.
14

B. Civil Penalties

A trial court may impose civil penalties against an agency pursuant to 

Section 1305 of the RTKL, which states:

(a) Denial of access.--A court may impose a civil penalty 

of not more than $1,500 if an agency denied access to a 

public record in bad faith.

(b) Failure to comply with court order.--An agency or 

public official who does not promptly comply with a court 

order under this act is subject to a civil penalty of not more 

than $500 per day until the public records are provided.

65 P.S. § 67.1305.

Whereas attorneys’ fees pursuant to Section 1304(a) seek to remedy 

damage to a requester when an agency denies disclosure in bad faith, civil penalties 

under Section 1305 “penalize conduct of a local agency and . . . provide a deterrent 

in the form of a monetary penalty in order to prevent acts taken in bad faith in the 

future.” Bagwell, 155 A.3d at 1141. “[B]ad faith is a matter of degree, implicating 

the extent of noncompliance,” and the reviewing court (either the trial court or this 

Court) has the exclusive authority to find facts and impose sanctions in this regard. 

Uniontown Newspapers I, 151 A.3d at 1203, 1208.

In Bagwell, the Philadelphia District Attorney’s office initially denied 

the RTKL request as a whole, claiming numerous exemptions. 155 A.3d at 1123. 

The OOR ordered disclosure and the trial court agreed, ultimately imposing a 

Section 1305 civil penalty of $500. Id. at 1124. We affirmed upon concluding that 

the record was “replete with evidence” that the District Attorney’s office wrongly 

denied access based on the identity of the requester and the presumed intended use 

of the records, failed to cite sufficient legal authority in support of its reasons for 
15

denial, and did not make a good faith search for the requested records. Id. at 1141-

42. In the Uniontown Newspapers cases, this Court found that the DOC’s referral 

of the matter to its health bureau and reliance on the bureau’s reasons for denying 

disclosure did not constitute a good faith search. Uniontown Newspapers II, 185 

A.3d at 1172, 1174. In imposing Section 1305 penalties on the DOC, we emphasized 

the agency’s “noncompliance throughout the RTKL process” for more than three 

years. Id. at 1175-76.

Where this Court has awarded or upheld penalties under Section 

1305(a), there generally has been an initial denial by the agency (as required by the 

provision) followed by ongoing nondisclosure or explanations not credited by the 

reviewing court. See, e.g., Uniontown Newspapers II, 185 A.3d at 1175-76; 

Bagwell, 155 A.3d at 1141-42. By contrast, when an agency has shown some 

diligence to respond to a request and nondisclosure is due to a genuine and 

nonfrivolous belief that documents have been provided, are unavailable, or are not 

subject to disclosure, we have declined to impose or uphold penalties. See, e.g., 

Campbell v. Pa. Interscholastic Athletic Ass’n (Off. of Open Recs.), 268 A.3d 502, 

519 (Pa. Cmwlth. 2021); Capinski v. Upper Pottsgrove Twp., 164 A.3d 601, 610 

n.14 (Pa. Cmwlth. 2017); Drack v. Ms. Stacy Hamilton Open Recs. Officer Borough 

of Carlisle (Pa. Cmwlth., No. 2128 C.D. 2014, filed Jan. 13, 2016), slip op. at 8, 

2016 WL 182499, at *3 (unreported).10

As discussed above, in the context of the RTKL, intent to wrongfully 

withhold disclosure is not required to sustain a finding of bad faith, while an 

agency’s failure to provide an adequate response to a request may, but need not, be 

10 Section 414(a) of this Court’s Internal Operating Procedures provides that an unreported 

panel decision issued after January 15, 2008, may be cited for its persuasive value, but not as 

binding precedent. 210 Pa. Code § 69.414(a).
16

the basis for such a finding. Uniontown Newspapers II, 185 A.3d at 1170. However, 

the reviewing court (in this case the trial court) is the finder of fact, and its conclusion 

regarding a party’s bad faith will be upheld unless the opponent establishes that it is 

legally erroneous or unsupported by substantial evidence of record. Bagwell, 155 

A.3d at 1123 n.3. 

Here, the Brunermers sought a $1,500 civil penalty against the Borough 

under Section 1305(a) of the RTKL and asked the trial court to impose penalties 

upon the Borough of $500 per day under Section 1305(b) if the court ordered further 

disclosure and the Borough did not comply. Brunermers’ Complaint ¶¶ 81-82; R.R.

at 13a-14a. The trial court did not address subsections (a) and (b) distinctly, but 

generally concluded that under the circumstances, including the Brunermers’ dozens 

of RTKL requests and multiple lawsuits against the Borough within the past year, 

the Borough had not acted in bad faith so as to warrant penalties, even though its 

response in this matter was incomplete and it should have conducted a more 

thorough search at the outset. Trial Ct. Rule 1925(a) Op. at 11-12; R.R. at 881a-82a. 

Before this Court, the Brunermers reiterate their arguments that the Borough’s 

incomplete response amounted to bad faith such that penalties are warranted. 

Brunermers’ Br. at 19-36. The Borough responds that the trial court correctly 

concluded that no bad faith had occurred. Borough’s Br. at 4-12.

As detailed above, the Borough’s witnesses testified that when they 

learned of the Brunermers’ request, they searched their emails and provided what 

they found. R.R. at 684a-87a, 697a, 701a, 712a-13a, 720a-31a & 768a. The 

witnesses also confirmed that their affidavits accompanying their submissions were 

true and accurate to the best of their knowledge when they completed them. Id. at 

693a, 703a, 714a-15a & 722a. The Borough’s witnesses did not deny or challenge 
17

the request, candidly acknowledged when their efforts had fallen short, and 

explained their efforts to remediate the issue. R.R. at 773a-74a & 800a. 

The trial court did not expressly credit the Borough’s witnesses, but it 

did so by necessary implication in concluding the Borough’s actions did not amount 

to bad faith so as to warrant penalties. The court particularly noted that while the 

Borough’s failure to initially provide all responsive information could result in a 

finding of bad faith, the totality of circumstances and evidence here did not warrant 

doing so. Trial Ct. Rule 1925(a) Op. at 11-12; R.R. at 881a-82a. Although the 

Brunermers attempted to portray the Borough as obstructive, the trial court found no 

support in the record for that characterization. R.R. at 881a. We agree. As the 

record supports the trial court’s conclusion, the court did not err in declining to 

impose a Section 1305(a) penalty on the Borough. Because this matter was appealed 

by the Brunermers upon the trial court’s May 12, 2021, order that the Borough obtain 

and provide all previously undisclosed documentation, there is no evidence that the 

Borough failed to promptly comply with that order. Therefore, we likewise discern 

no error in the trial court’s refusal to impose a penalty under Section 1305(b).11

11 The Brunermers also argue that they should not have had to issue a subpoena to Troup 

for her attendance at the first hearing before the trial court in February 2021. Brunermers’ Br. at 

33-34. The Brunermers assert that they issued Troup a notice to attend the hearing, which should 

have been sufficient pursuant to Pennsylvania Rule of Civil Procedure 234.3, Pa.R.Civ.P. 234.3, 

and that they were wrongfully subjected to additional counsel costs associated with an additional 

hearing. The trial court did not independently rule upon this issue upon finding that all points 

raised in the Brunermers’ Rule 1925(b) Statement were related to their position that the Borough 

acted in bad faith, which the court ultimately found meritless. Trial Ct. Rule 1925(a) Op. at 1; 

R.R. at 871a. We agree. In their Statement, the Brunermers raised the issue of Troup’s nonappearance at the first hearing, but characterized it as additional evidence of the Borough’s bad 

faith and not as a discrete instance of trial court error. R.R. at 863a. 

We also note that at the hearing, Borough Solicitor Andreassi argued that although Troup 

was the Borough’s zoning officer, she held the position in an independent contractor capacity and 

was therefore only subject to compelled attendance and testimony via subpoena. R.R. at 754a-
18

III. Conclusion

The trial court did not err in declining to impose attorneys’ fees and 

penalties on the Borough pursuant to Sections 1304 and 1305 of the RTKL. We 

therefore affirm the trial court’s order.

__________________________________

CHRISTINE FIZZANO CANNON, Judge

57a. The trial court agreed over Brunermers’ counsel’s assertion that Troup had appeared for 

depositions in previous proceedings without requiring a subpoena; therefore, requiring her to be 

subpoenaed for the hearing was disingenuous. Id. Ultimately, Troup did appear and testify at the 

March 2021 hearing after the Brunermers issued a subpoena for her to do so. R.R. at 770a-91a. 

Thus, any error on the part of the trial court was harmless and to the extent the Brunermers seek

attorneys’ fees for the March 2021 hearing, that claim is meritless in light of the Brunermers’ 

failure to establish entitlement to attorneys’ fees pursuant to Section 1304(a) of the RTKL, as 

discussed in Section “A” above.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Janet and Scott Brunermer, :

 Appellants :

:

v. :

: No. 661 C.D. 2021

Apollo Borough :

O R D E R

AND NOW, this 28th day of July, 2022, the May 12, 2021, order of the 

Armstrong County Court of Common Pleas is AFFIRMED.

__________________________________

CHRISTINE FIZZANO CANNON, Judge