In the Know on Right to Know: June Municipal Law Update

By Theodore T. Speedy, Esq.
Gawthrop Greenwood, PC

When key updates to the Right to Know Law happen, it’s not uncommon to note them – and forget them – when there arises a situation to apply those changes. Think of this as your double-check! Gawthrop Greenwood’s continuing series of municipal law updates is excited to present  “In the Know on Right to Know,” which provides Municipal Leadership and Agency Open Records Officers (“AOROs”) with a brief review of updates and decisions to keep in mind, as well as additional issues we’ve encountered recently with the multiple municipalities we counsel. As always, please contact us with any questions.

Attention Open Records Officers: Complete the RTKL Survey by June 26, 2026 

The Office of Open Records (OOR) is conducting a survey of AOROs to better understand the impact of the Right to Know Law on agencies throughout the Commonwealth and to help inform future policy decisions. The deadline to complete the survey is June 26, 2026. To access the survey, click here.

Notice: Beware of AI-generated Legal Precedent in RTKL Requests

The use of AI in the legal field has created many challenges, most notably, where AI-generated legal documents provide caselaw citations to nonexistent or misleading legal precedent, otherwise known as a “hallucination.” If you receive a request containing legal authority that is being presented to require the release of otherwise exempt or confidential information, you should request a legal review from your Solicitor to analyze the applicability of the legal statements presented.

In Case You Missed It…OOR Issues 2025 Annual Report

The Office of Open Records has released its 2025 Annual Report, which provides information on the number of RTK appeals filed, and provides data on certain characteristics of the appeals, including the number of decisions issued, the type of responding agency, and exemption challenges raised on appeal. Highlights include:

• 3,970 appeals filed in 2025 — the busiest year on record. The three-year average number of appeals is 3,448.
• OOR Decisions were issued in 3,738 appeals.
• 42% of RTK appeals involved local agencies, with Counties, Townships, and School districts the top three local agencies involved in appeals.
• Of the appeals filed against local agencies, 48% were denied or dismissed, 34% were granted, partially granted or withdrawn.
• The top three exemptions under the RTKL raised on appeal concerned: Noncriminal Investigative Records, §708(b)(17); Criminal Investigative Records, §708(b)(16); and Internal, Predecisional Deliberations, §708(b)(10)

The full report can be found here.

Take a Moment to Review the Standard Language on All Agency RTK Response Letters to Ensure Compliance with RTKL Requirements

When issuing a RTK denial, the RTKL requires that the response be in writing, dated, issued within the appropriate response time, include a description of the records requested, set forth the specific reasons for denial and a citation to legal authority, provide the name, title, address and telephone number of the AORO, and must include the procedure to appeal denial of access under the RTKL.

Because the process for filing an appeal must be included in your response, take the time to confirm that all response letters include the required information. Also, if you are not aware, several updates within the last year may make your template form inaccurate. As with any other questions regarding the RTKL, all agencies should periodically review their response forms and procedures with their Solicitor to ensure compliance.

Check that the OOR Office Address is Updated

In November 2025, the Office of Open Records relocated its physical office and changed its mailing address for the submission of RTKL appeals to: 555 Walnut Street, Suite 605, Harrisburg, PA 17101. The OOR website has not changed:  www.openrecords.pa.gov. All letters denying access to records need to include the OOR mailing address and website address for the filing of an appeal.

The OOR No Longer Accepts Email Appeals

The Office of Open Records has stopped accepting RTK Appeals by email. Appeals filed electronically must be submitted through the OOR’s E-File Appeal Portal.

Refer Back to OOR Standard Forms

If your template form has been used by your agency for a while, it may be a good idea to check it against standard forms. The OOR website contains a library of form responses for use by AOROs, which can be found here.

If You Deny Access to Criminal Investigative Records, the County DA’s Office is the Appealing Authority, not OOR

The RTKL provides that when a local agency denies access to records pursuant to the criminal investigative records exemption, 65 P.S. § 67.708(b)(16), the appeal is to be reviewed by the County District Attorney’s Office in the county where the local agency is located, and not the OOR. See, 65 P.S. §§ 67.503(d) and 67.903(5).

Criminal investigative records are any record that contains information assembled as a result of the performance of any inquiry, formal or informal, into a criminal incident or an allegation of criminal wrongdoing. Remember that the size, scope or formality of the police inquiry, whether the investigation is ongoing, or whether an arrest has occurred, are not relevant to a decision on whether responsive records should be withheld pursuant to the exemption. Criminal investigative records remain exempt from disclosure under the RTKL even after the investigation is completed.

The written response denying a request for criminal investigation records MUST include the address of the County District Attorney’s office to be compliant with the requirements of the RTKL. While it is the duty of the AORO to comply with the RTKL, ensuring that the requestor has the information to file any appeal with the responsible reviewing authority will also serve to procure a more timely review and disposition of the appeal. If an appeal on such a denial is filed with the OOR, it will eventually be transferred to the responsible District Attorney’s office, delaying disposition, and potentially requiring effort on the part of the agency to notify OOR.

BUT, also keep in mind that the RTKL provides review authority to the District Attorney ONLY as to denial of access to criminal investigative records. If a request is also denied based on any other enumerated exemption, an appeal on those exemptions must go to OOR. It is therefore critical that if any questions arise when reviewing these types of requests, that your AORO seek legal guidance from your Solicitor.

An Act 22 Request for Body-Worn Camera Footage is not a Right to Know Request

AOROs must be aware of the distinction between requests under the RTKL that seek criminal investigative records, as described above, and those that seek law enforcement audio recordings or video, such as body-worn camera footage, which are not subject to the RTKL.

Any request seeking these materials must instead be reviewed pursuant to the provisions of Act 22 of 2017, 42 Pa.C.S. §§ 67A01–67A06. The OOR has designated a request form that should be utilized for Act 22 Requests. See the form request here.

If an AORO receives a request for law enforcement recordings on a standard RTKL form, the Act 22 Request Form should be forwarded to the requester.

A request for records under Act 22 has very specific requirements, as follows: an individual that requests a copy of law enforcement audio recordings or video recordings must do so within 60 days of the date when the recording was made, by written request to the agency AORO; the request must specify the particular incident that is the subject of the recording, including date, time, and location of the event; and the request must include a statement describing the requestors’ relationship to the event.

Upon receiving such a request, the law enforcement agency must determine whether the recording contains potential evidence of a criminal matter, information pertaining to an investigation, confidential or victim information, and whether reasonable redaction would not safeguard the sensitive information. After such a determination, the request may be denied. Where such a request is denied, the requestor may file a petition for judicial review in the court of common pleas. It is recommended due to the circumstances surrounding these types of requests, that an agency consult with their Solicitor or the local DA to assist with the analysis of disclosure of any request for law enforcement recordings under Act 22.

Responsive Records to a Request for Social Media Content Must Be Carefully Reviewed

In Penncrest School District v. Cagle, 341 A.3d 720 (Pa. 2025), the Pennsylvania Supreme Court rejected a “social media-specific” test for determining whether a record was subject to disclosure under the RTKL. While a public official’s use of social media “for personal communication, official communication, or both—and the line between the two is often blurred[,]” makes the determination more challenging, AOROs should stick to the procedure contained in the RTKL.

An AORO that is making a determination on whether a request seeking social media content contains a responsive record, must consider whether the record: (1) documents a transaction or activity of an agency and (2) was created, received, or retained by an agency. The fact that a social media account is not controlled by the agency is not dispositive to this determination. When it comes to requests for social media content, factors that can be considered when determining whether the content is a documented transaction or activity of an agency include:

• Forum and audience — whether an official is posting personal views on a private page to a limited audience or whether the post is publicly discussing agency business done in an official capacity, and
• Topic — whether the content of the post concerns a transaction or activity of the agency.

In Penncrest, a school board member shared, on their personal Facebook account, a photo taken at a district school with a comment on a divisive social topic. A Right to Know request was received requesting from the school district all Facebook posts and comments made by the school board member. In response, the school board partially denied the request, on the basis that the requested social media content was not posted by or on a school-owned Facebook account.

The OOR granted relief to the requestor on appeal, noting that in this situation, the Facebook posts were used as a significant platform by the elected official to conduct or discuss official agency business. The school district took additional appeals, where the matter ultimately was reviewed by the Pennsylvania Supreme Court.

The Court relied heavily on the definition of “public record,” which allows for disclosure of all types of information, including posts made on digital platforms. It was immaterial whether the local agency had oversight over the social media account or authorized the public official to maintain such an account. Instead, the AORO should look to whether the account was used as a significant platform by an elected official to conduct official business. This is similar to prior decision related to emails, which can be public records, even if privately maintained, when the emails document a transaction or activity of the agency.

If faced with such a request, an AORO should focus on the content of the communication or post, not on whether it is stored on a personal device or within a personal email account or personal social media page. If in doubt, clarify with your Solicitor on whether a communication is a responsive record or not.

Tips on How to Avoid Bad Faith Penalties for RTK Denials

In an unreported decision, County of Bucks v. Brock, 344 A.3d 874 (Table) (Pa. Cmwlth. 2025), the Court affirmed a sanctions award against a County health department, which, through a series of RTK denials, responses and appeals, was found to have improperly withheld from disclosure responsive records.

The RTKL “expressly authorizes the imposition of sanctions for any denial of records done in bad faith.” Bad faith does not require a showing of fraud or corruption, deliberate, intentional, or willful misconduct. Rather, to rise to bad faith, the actions of the agency must only lack good faith compliance with the RTKL and demonstrate abnegation of an agency’s mandatory duties.

Acting in bad faith is simply not acting in good faith. An agency that is reviewing responsive documents must ensure that all responsive documents are produced and that any exemptions are properly invoked. The clear lesson in this case is that an agency will be held accountable for a prior denial if records withheld are later disclosed, which will certainly raise questions regarding failure to act in compliance with the RTKL.

A U.S. navy veteran and former civil engineer, Theodore T. Speedy, Jr. is a government and municipal law attorney at Gawthrop Greenwood, PC, where he advises municipalities on a wide range of legal matters, including governance, personnel, compliance, land use, and public policy. For more information, contact Theo at tspeedy@gawthrop.com or 610-696-8225.