Lead Opinion
In this matter, the Office of the Governor brought a declaratory judgment action in the Commonwealth Court, challenging the Office of Open Records’ interpretation of 65 P.S. § 67.901, which addresses an agency’s time frame for responding to written requests for documents made pursuant to the Right-to-Know Law.
I.
On March 7, 2012, Sean Donahue (Donahue) submitted to the Office of the Governor (OG) a Right-to-Know Law (RTKL)
On March 29, 2012, Donahue timely appealed to the Office of Open Records (OOR). OOR determined that Donahue’s request was “deemed denied” because OG failed to respond to the request within a five business day period as required by 65 P.S. § 67.901. According to OOR, Section 901 affords an agency five business days to respond to a RTKL request after receipt of the request by any employee of the agency. Instantly, OOR concluded that the five business day period for responding to Donahue’s request began to run on March 7, the date on which an OG employee first received the request, and that the request was therefore “deemed denied” when OG failed to respond within five business days, which was by March 14.
Even though OG prevailed in the matter before OOR, it appealed OOR’s final order to the Commonwealth Court, where it contested OOR’s interpretation of Section 901 of the RTKL. OG contended that OOR wrongly concluded that an agency must respond to a RTKL request within five business days from the date any person within the agency receives such a request. To the contrary, OG argued that an agency, including it, has five business days to respond from the date its RTKL open-records officer receives the request for records. See 65 P.S. § 67.901 (stating that agencies must respond to record requests within “five business days from the date the written request is received by the open-records officer for an agency.”). On July 2, 2012, the Commonwealth Court issued a per curiam order quashing OG’s petition for appellate review. The Commonwealth Court held that OG lacked standing to appeal from the OOR order because OG was not “aggrieved” by the order, but merely disagreed with an issue decided against it regarding the time frame for responding to RTKL records requests.
In addition to appealing OOR’s final order, OG simultaneously filed a declaratory judgment action in the Commonwealth Court’s original jurisdiction, seeking a declaration that OOR misinterpreted Section 901 of the RTKL with respect to the commencement of the five business day period for responding to a RTKL request under Section 901.
In response to OG’s petition for declaratory judgment naming OOR as respondent, OOR filed preliminary objections
In a single judge order, issued without opinion on August 28, 2012, the Commonwealth Court dismissed OOR’s preliminary objections and proceeded to entertain OG’s declaratory judgment action against OOR. Order of the Cmwlth. Ct., No. 376 M.D.2012 (Aug. 28, 2012). As justification for its August 28, 2012 order dismissing OOR’s preliminary objections, the Commonwealth Court cited without explanation the following two cases: Pennsylvania State Educ. Ass’n ex rel. Wilson v. Commonwealth,
In an order and supporting opinion filed January 23, 2013, a three judge panel of the Commonwealth Court granted OG its requested declaratory relief on thе merits. Commonwealth v. Donahue,
The court rejected OOR’s determination that an agency’s five business day period for responding to a RTKL request under Section 901 commences when any agency employee receives the request. Specifically, the court held that OOR mischaracterized the Commonwealth Court’s holding in PGCB to stand for the proposition that an agency employee’s receipt of a RTKL request triggers the five business day period for responding to the request. Id. at 1169. In PGCB, an agency employee failed to forward a records request to an open-records officer and, allegedly, ignored the request after deciding, in a solitary act, that the request was defective.
II.
We first consider whether OG possessed standing to petition the Commonwealth Court for declaratory relief given OOR’s interpretation of 65 P.S. § 67.901 enunciated in Donahue. The issue of standing is a question of law; thus, our standard of review is de novo and our scope of review is plenary. Johnson v. Am. Standard,
OOR argues that the Commonwealth Court’s decision granting declaratory relief should be vacated because OG suffered no harm as a result of OOR’s final order in the Donahue case, and therefore lacked standing to sue OOR. OOR reasons that just as the Commonwealth Court correctly found that OG lacked standing to appeal OOR’s final order in Donahue because it was not aggrieved, the court should have also held that OG lacked standing to sue OOR in declaratory judgment where it sought the same relief (reversal of OOR’s holding in the Donahue matter) for the same reason (that OOR’s position was contrary to the statutory language).
Specifically, OOR argues that OG failed to meet the required elements for standing in its declaratory judgment action-namely, OG failed to demonstrate that its asserted interest was substantial, direct, and immediate. See Fumo v. City of Philadelphia,
OOR further argues that mere disagreement with a tribunal’s legal reasoning or conclusions of law does not confer standing on a party. See ACS Enters. v. Norristown Borough Zoning Hearing Bd.,
In response, OG concedes that the Commonwealth Court properly dismissed its petition for appellate review in Donahue after finding that OG lacked standing to appeal the OOR order. OG, however, contends that it nonetheless possessed standing to petition the Commonwealth Court for declaratory relief against OOR. OG observes that standing to bring an original complaint exists where a party asserts a “discernible adverse effect” to an individualized interest. See William Penn Parking Garage, Inc. v. City of Pittsburgh,
In Pennsylvania, the doctrine of standing at issue in this matter is a prudential, judicially created principle designed to winnow out litigants who have no direct interest in a judicial matter. In re Hickson,
Thus, while the purpose of the Declaratory Judgment Act, 42 Pa.C.S. § 7531 et. seq., is to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and is to be liberally construed and administered,” the availability of declaratory relief is limited by certain justiciability concerns. 42 Pa.C.S. § 7541(a). In order to sustain an action under the Declaratory Judgment Act, a plaintiff must allege an interest which is direct, substantial and immediate, and must demonstrate the existence of a real or actual controversy, as the courts of this Commonwealth are generally proscribed from rendering decisions in the abstract or issuing purely advisory opinions. See Pittsburgh Palisades Park,
OOR’s contention that its newly announced interpretation of Section 901 does not waste agency time or resources or otherwise harm OG’s interests borders on the frivolous. Pursuant to OOR’s interpretation of Section 901, the five business
Moreover, OOR’s insistence that OG is not aggrieved in the absence of OOR engaging in official rulemaking is misguided. Notably, the RTKL authorizes OOR to adopt regulations and issue advisory opinions to facilitate the implementation of the stаtute. See 65 P.S. § 67.504(a); 65 P.S. § 67.1310(a). While the Donahue decision is neither a regulation nor an advisory opinion, and although OOR’s discussion of Section 901 in Donahue was essentially dicta (in that OOR upheld OG’s dismissal of Donahue’s record request for being insufficiently specific), OOR has proceeded to defend its interpretation of Section 901 in this appeal and has otherwise indicated that it intends to enforce Section 901 in accordance with the position it took in Donahue. Brief of OOR at 17-18. Thus, OOR’s initial adjudication in this matter and subsequent advocacy serves to enunciate sufficiently its position on this issue which adversely, directly and immediately impacts OG.
For these reasons we conclude that OG possesses standing to challenge in a declaratory judgment action OOR’s interpretation of Section 901. Our position in this respect is consistent with similar decisions where we have recognized the justiciability of declaratory judgment actions seeking pre-enforcement review of an administrative agency’s interpretation and enforcement of a governing statute. See Arsenal Coal Co. v. Commonwealth,
III.
Next, OOR argues that the Commonwealth Court lacked jurisdiction over OG’s declaratory judgment action. OOR phrases the issue as “[wjhether the Commonwealth Court erred by finding it had jurisdiction over the Governor’s original jurisdiction complaint alleging a misinterpretation of statutory law in the absence of any harm or constitutional question?” Brief of OOR at 4. We note that in so arguing, OOR conflates the distinct notions of jurisdiction, standing, and exhaustion of statutory remedies.
OOR claims that, in rendering its order of August 28, 2012, denying OOR’s preliminary objections to jurisdiction, the Commonwealth Court erroneously relied upon Pennsylvania State Educ. Ass’n ex rel. Wilson v. Commonwealth,
OOR thus contends that the Commonwealth Court lacked subject matter jurisdiction to entertain OG’s declaratory judgment action because OG did not raise an issue with constitutional overtones and, more importantly, because OG failed to exhaust its available statutory remedies.
OG responds that the Commonwealth Court properly exercised its original jurisdiction in OG’s declaratory judgment action because its petition for declaratory relief sought review of what OG viewed as an interpretation of the RTKL which would continuously place OG, as well as all other Commonwealth agencies subject to the RTKL, at jeopardy. Specifically, OG asserts that OOR redefined the limits of its own jurisdiction to entertain RTKL appeals when it clarified the time frame within which an agency must respond to a RTKL record request, given that OOR lacks jurisdiction over RTKL appeals until a request has been “deemed denied.” See 65 P.S. § 67.1101. OG thus characterizes its petition for declaratory relief as an action seeking to define the proper reach of OOR’s authority in RTKL matters, which, according to OG, properly falls within the Commonwealth Court’s original jurisdiction.
Before turning to OOR’s arguments, we initially reject OG’s argument that OOR’s announced interpretation of Section 901 purporting to clarify the time frame within which an agency must respond to RTKL record requests impermissibly redefined the scope of OOR’s authority and thus widened the breadth of its jurisdiction over RTKL matters. Various provisions of the RTKL clearly confer upon OOR the authority to construe RTKL provisions and to decide RTKL matters. See 65 P.S. § 67.504 (authorizing OOR to “promulgate regulations relating to appeals involving ... Commonwealth agenc[ies].”); 65 P.S. § 67.1310(a)(2) (directing OOR to issue advisory opinions); 65 P.S. § 67.1310(a)(5) (granting OOR authority to review and decide appeals of decisions by Commonwealth agencies). Whether OOR advanced a correct interpretation of Section 901 in deciding the Donahue matter is a separate question with no jurisdictional overtones related to OOR’s interpretation and enforcement of the RTKL generally.
We next turn to OOR’s argument that, apart from an inadequate statutory or administrative remedy and the presence of substantial constitutional concerns, a declaratory judgment action addressed to the Commonwealth Court’s original jurisdiction is an improper vehicle for challenging OOR’s interpretation of the RTKL. PSEA serves as the basis of OOR’s argument.
In PSEA a labor union representing public school employees filed an original jurisdiction action against OOR, seeking рreliminary and permanent injunctions
While noting the general rule requiring the exhaustion of statutory remedies, this Court in PSEA held that a declaratory judgment action against OOR was appropriate under the circumstances, where the union raised substantial due process concerns and lacked a reliable administrative or alternative judicial remedy. Id. at 1275-76. Moreover, notwithstanding that the OOR is a quasi-judicial tribunal, we further held that it was an indispensable and proper party to an action brought under the Declaratory Judgment Act, 42 Pa.C.S. § 7541(a), seeking an order regarding its interpretation of the RTKL, particularly when the aggrieved party lacked an adequate administrative or alternative judicial forum for obtaining relief, as was the case in PSEA. Id. at 1277.
OOR’s attempt to limit the Commonwealth Court’s jurisdiction over it to the facts of PSEA understates the reach of the Commonwealth Court’s original jurisdiction over a Commonwealth agency like OOR. The Commonwealth Court has original jurisdiction over any action brought against the “Commonwealth government,” as well as the authority to grant declaratory relief to the same. 42 Pa.C.S. §§ 761(a), 7541(a); Vine v. Commonwealth,
We therefore reject OOR’s contention that the absence of a substantial constitutional issue in this action deprives the Commonwealth Court of jurisdiction. While in PSEA this Court expressly held that a declaratory judgment action against OOR in the Commonwealth Court’s original jurisdiction was appropriate where the aggrieved party lacked an available administrative remedy and raised a substantial constitutional issue, we never indicated that the facts of PSEA represented the extent of the Commonwealth Court’s jurisdiction. See PSEA,
We further reject OOR’s contention that the rule requiring the exhaustion of statutory remedies effectively precludes OG from challenging OOR’s interpretation of Section 901 by means of a declaratory judgment action brought in the Cоmmonwealth Court’s original jurisdiction. While it remains unclear whether the rule requiring the exhaustion of statutory remedies is jurisdictional or prudential (see supra note 7), even assuming, arguendo, one cast an exhaustion discussion in jurisdictional terms, there is no doubt a court may properly exercise its jurisdiction in the face of an existing legal or statutory remedy when that remedy is either inadequate or incomplete. Pentlong Corp.,
Here, OOR, an administrative agency, proffered an interpretation of Section 901 of the RTKL in its Donahue decision that immediately and detrimentally impacted OG. Nonetheless, OOR challenged OG’s standing to appeal from OOR’s Donahue decision because, as the Commonwealth Court noted, OG was the prevailing party therein.
It is precisely under such circumstances, where a party is in need of relief from “uncertainty and insecurity with respect to rights, status, and other legal relations,”
Moreover, as we recognized in Borough of Green Tree, the rule requiring the exhaustion of statutory remedies need not apply where “the administrative process has nothing to contribute to the decision of the issue and there are no special reasons for postponing its immediate decision.” Borough of Green Tree,
Thus, contrary to OOR’s contention, OG’s declaratory judgment action addressed to the Commonwealth Court’s original jurisdiction was a proper vehicle for challenging OOR’s interpretation of the RTKL. Our position is consistent with other decisions where we have permitted declaratory judgment actions brought in the Commonwealth Court’s original jurisdiction against Commonwealth agencies acting within their adjudicatory or regulatory capacities. See Arsenal,
Finally, as with our discussion of OG’s standing, we view it immaterial that OOR’s path to its construction of Section 901 of the RTKL was first its adjudication of a case before it as a quasi-judicial tribunal, and then its position as an advocate. Of consequence is that OOR has adopted an interpretation of the statute in question and stated its intention to apply that interpretation prospectively to the apparent detriment of OG (as well as other Commonwealth agencies). Under these circumstances, we conclude that the Commonwealth Court properly exercised its original jurisdiction over OOR in this matter.
IV.
With standing and jurisdiction concerns aside, we turn to our analysis of when the five business day period for responding to RTKL record requests begins pursuant to Section 901 of that act. OOR contends
According to OOR, the plain language of Section 901 requires that an agency respond to all RTKL record requests within five business days of receipt by any agency employee. OOR points to the first and last sentence of Section 901 which refer to “an agency’s” receipt and response to RTKL records requests, and argues that the language necessarily implies that the five business day period for responding to a records request begins to run upon receipt by any employee of an agency. Moreover, OOR argues that the Commonwealth Court adopted an overly narrow interpretation of Section 901, specifically with regard to the language from Section 901 that reads: “[t]he time for responding to a records request] shall not exceed five business days from the date the written request is received by the open-records officer for an agency.” According to OOR, this language simply means that if the agency’s open-records officer is the first employee to receive a RTKL records request, then the officer’s response is not to exceed five business days.
OOR further argues that its interpretation of Section 901 is the only one that gives full effect to the express language of the RTKL. OOR notes that Section 703 of the RTKL contemplates the receipt of requests by any agency employee, because it directs such employees to forward all requests for records to the respective agency’s open-records officer.
OOR places significance on the fact that various sections of the RTKL refer to an agency’s determination of whether to grant or deny access to records as the “agency’s response,” as opposed to the “open-records officer’s response.” See 65 P.S. §§ 67.706, .903, .904, .905, .1101, and .1303. OOR contends that an open-records officer’s duties are merely administrative
Finally, OOR argues that the Commonwealth Court’s interpretation of Section 901 runs counter to the overriding legislative intent in enacting the RTKL, which is government transparency and the speedy resolution of requests for information. See Levy v. Senate,
In response, OG contends that the plain language of Sections 901, 703, and 502 of the RTKL establish that agencies must respond to RTKL requests within five business days from the date the written request is received by an open-records officer for the agency, as opposed to any agency employee. OG argues that OOR’s interpretation of Section 901 would require a result that is both impossible in execution and absurd in implementation. OG warns that if Section 901 is interpreted as to require an agency response within five business days of receipt by any agency employee, then agencies will be confronted with the impossible task of averring that no agency personnel are in receipt of a request. Finally, OG submits that if OOR’s interpretation of Section 901 is upheld, agencies will experience “shotgun” RTKL record requests where duplicate requests are submitted to multiple agency employees. Accordingly, OG would have us affirm the Commonwealth Court’s grant of declaratory relief.
As our analysis involves interpreting a provision from the RTKL, we necessarily begin by considering the Statutory Construction Act of 1972. 1 Pa.C.S. § 1501 et seq. The Statutory Construction Act directs that the object of all interpretation and construction of statutes is to ascertain and effectuate the legislature’s intent. 1 Pa.C.S. § 1921(a); Chanceford Aviation Properties, LLP v. Chanceford Twp. Bd. of Supervisors,
The RTKL requires all agencies to designate an open-records officer, who is tasked with handling RTKL record requests. 65 P.S. § 67.502(a)(1), (b). The RTKL further obliges agency employees who receive RTKL requests to forward the requests to the agency’s open-records officer. 65 P.S. § 67.703. While there is no specified time frame for forwarding a request to the agency’s open-records officer, Section 901 of the RTKL directs agencies to make a good faith effort to respond as promptly as possible, and in any event to respond no later than “five business days from the date the written request is received by the open-records officer for an agency.” 65 P.S. § 67.901. Section 901 provides more fully:
Upon receipt of a written request for access to a record, an agency shall make a good faith effort ... to respond as promptly as possible under the circumstances existing at the time of the request.... The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency. If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied.
Id. (emphasis added).
As noted above, in construing a statute, a reviewing court’s objective is to discern the intent of the legislature, which is best indicated by the plain language of the statute. The language of this passage is clear and unambiguous. Simply put, agencies must respond to RTKL record requests within five business days after the agencies’ respective open-records officer first receives the request. The five business day period plainly begins when the open-records officer receives a request. Because the directive in Section 901 is neither vague nor subject to more than one reasonable interpretation, there is no need to look beyond the plain meaning of the statute and resort to other indicia of legislative intent. See 1 Pa.C.S. § 1921(c). The Commonwealth Court thus properly concluded that Section 901 of the RTKL requires an agency to respond to a written request for records within five business days of the request’s receipt by an agency’s open-records officer.
OOR’s insistence that Section 901 requires agencies to respond to RTKL record requests within five business days of receipt by any agency employee has no basis in the text of the statute. To defend its interpretation, OOR looks, in isolation, at the first and last sentences of Section 901 which refer to “an agency’s” reсeipt and response to RTKL records requests, and argues that the language necessarily implies that the five business day period for responding to a records request begins
We also reject OOR’s attempt to analogize this case to the Commonwealth Court’s prior holding in PGCB. In PGCB, an agency employee failed to forward a records request to an open-records officer, supposedly ignoring the request after deciding, in a solitary act, that the request was defective.
Finally, we reject the various policy arguments that OOR raises in opposition to the Commonwealth Court’s plain language reading of Section 901. Primarily, OOR argues that if the five business day response period under Section 901 commences upon receipt of a written record request by an agency’s open-records officer, a Commonwealth agency like OG will be inclined to act in bad faith by delaying the transmission of RTKL requests from its' employees to its open-records officer, and thus frustrate the goal of the RTKL to facilitate the speedy resolution of requests for information.
We presume that Commonwealth agencies will act in good faith in discharging their statutory duties under the RTKL. See In re Redevelopment Auth. of Philadelphia,
OOR also argues that the Commonwealth Court’s plain language reading of Section 901 will inhibit RTKL requestors from exercising their statutory appeal rights under Section 1101 in the event that a deemed denial occurs. Specifically, OOR contends that the Commonwealth Court’s holding will deny RTKL requestors a reliable method for determining when their statutory appeal rights under Section 1101 are triggered in the event that a deemed denial occurs. Section 1101 confers upon requestors the right to file an appeal with the OOR within fifteen days of either a denial or a deemed denial; while according to Section 901, a deemed denial occurs when an agency fails to respond timely to a RTKL record request. Compare 65 P.S. §§ 67.1101 and .901. As OOR points out, if pursuant to Section 901, the five business day period for responding to RTKL record requests begins to run from the date that a request is submitted or forwarded to an agency’s open records officer, then a requestor cannot know with certainty (absent inquiry) when a deemed denial may occur and, correspondingly, when the fifteen day window for appealing from a deemed denial will open and close.
We recognize that the interplay between Section 901 and Section 1101 of the RTKL highlights what appears to be a gap in the statutory scheme for processing RTKL record requests and appeals.
Notes
. Providing in relevant part:
Upon receipt of a written request for access to a record, an agency shall make a good faith effort ... to respond as promptly as possible under the circumstances existing at the time of the request.... The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency. If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied.
65 P.S. § 67.901.
. A deemed denial furnishes the requestor the right to file an appeal with the OOR within fifteen business days that the deemed denial becomes effective. See 65 P.S. § 67.1101(a).
. OG named both OOR and Donahue as respondents in its declaratory judgment action. The Commonwealth Court dismissed Donahue as a party to the declaratory judgment action on the grounds that the Commonwealth Court is an improper forum for OG to file an original action against Donahue.
. This Court granted allocatur to consider this issue, namely whether the Commonwealth Court in PGCB erred by holding that RTKL records requests do not need to be either specifically addressed to the agency’s open-records officer or follow certain formatting guidelines in order to be valid. PGCB,
. The impact of OOR's interpretation of Section 901 extends to every Commonwealth agency, which are all subject to the directives of the RTKL. See 65 P.S. §§ 67.302, .303, and .304 (providing that Commonwealth agencies, local agencies, legislative agencies, and judicial agencies shall provide public records in accordance with the RTKL); see also 65 P.S. § 67.102 (defining Commonwealth agencies, local agencies, legislative agencies, and judicial agencies for the purposes of the RTKL). Thus, while OG is not especially populous, we take judicial notice that OOR’s interpretation of Section 901 would pose significant administrative challenges to agencies such as the Department of Corrections or the Department of Public Welfare, which collectively employ over 30,000 employees, any of whom, according to OOR, could serve as proper recipients of RTKL record requests for the purpose of triggering the time requirements of Section 901. See 2013 State Government Workforce Statistics, Pennsylvania Office of Administration, http://www. oa.state.pa.us/portal/server.pt/community/workforce_statistics_(new)/ 20613/workforce_statistics_new/1054504 (last visited Jan. 24, 2014).
. The terms "exhaustion of statutory remedies” and "exhaustion of administrative remedies” are at times used interchangeably in our decisional law. Compare Pennsylvania State Educ. Ass’n ex rel. Wilson v. Commonwealth,
. OOR presumes that the rule requiring the exhaustion of statutory remedies operаtes to divest a court of its subject matter jurisdiction. As we have recently noted, our decisional law is not clear as to whether the exhaustion of statutory remedies doctrine implicates a court’s jurisdiction, or whether the rule is a prudential concern serving as a pre-requisite to a court’s exercise of its jurisdiction. See White v. Conestoga Title Ins. Co.,
. Additionally, OOR likens this matter to Marin v. Sec'y of Commonwealth,
. Unlike in PSEA, there is no argument posited herein that, assuming the Commonwealth Court's jurisdiction and OG's standing, OOR is not an indispensable party to this dispute, as indeed it obviously is.
. As it is unnecessary to the disposition of this present matter, we take no position with regard to the Commonwealth Court’s order quashing OG’s direct appeal from the Donahue decision, where the Commonwealth Court relied on its precedent in Ridgway's Magnetics Co. v. Commonwealth,
. Section 703 provides in relevant part:
A written request must be addressed to the open-records officer designated pursuant to section 502. Employees of an agency shall be directed to forward requests for records to the open-records officer.
65 P.S. § 67.703.
. Section 502 provides in relevant part:
(b) Functions.'—
(2) Upon receiving a request for a public record, legislative record or financial record, the open-records officer [for an agency] shall do all of the following:
(i) Note the date of receipt on the written request.
(ii) Compute the day on which the five-day period under section 901 will expire and make a notation of that date on the written request.
65 P.S. § 67.502.
. The factors in § 1921(c) are:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921(c).
. In its opinion, the Commonwealth Court notes that Section 502 of the RTKL directs open-records officers who are in receipt of a request for public records to note the date that a record request is received for the purpose of computing the five day period under Section 901. Donahue,
. Indeed this is not the first time that this Court has noted a gap in the administrative and judicial review process existing in the RTKL. See PSEA,
. To the extent the RTKL is unclear and in need of interpretation, the legislature delegated to OOR authority to promulgate regulations and issue advisory opinions, consistent with the act. See 65 P.S. § 67.504(a); 65 P.S. § 67.1310(a). OOR seems, however, to desire to employ these functions as well as its adjudicatory role to alter its legislative underpinning, when it dislikes it. This it cannot do. If OOR disagrees with the legislature's intentions as set forth in the RTKL, its only remedy is to seek an amendment to that act.
Concurrence Opinion
concurring.
I join the Majority Opinion, with the exception of footnote 6.
The dispute before the Court originated in a request for records submitted by a reporter to the Office of the Governor. The agency refused the request and, in the subsequent appeal, the OOR issued a broad procedural ruling premised upon Section 901 of the RTKL that, as the Majority correctly concludes in Part II of the Opinion, harmed the interests of the Office of the Governor (“Donahue decision”). See 65 P.S. § 67.901. Nevertheless, the OOR ultimately ruled in favor of the Office of the Governor, declining to order the release of the records by the agency; the Office of the Governor was handed a classic Pyrrhic victory, id est, a victory obtained at such a cost that it outweighs the benefit obtained.
The Office of the Governor appealed the Donahue decision to the Commonwealth Court. In quashing the appeal, the Commonwealth Court capsulized the issue as follows: “Because petitioner is not aggrieved by the April 30, 2012 order but merely disagrees with an issue decided against it, it lacks standing to appeal the April 30, 2012 order.” Order, 7/2/2013 (per curiam) (citing Ridgway’s Magnetics Co. v. Unemployment Comp. Bd. of Review,
The merits of the dispute regarding Section 901 are before this Court in the direct appeal of the OOR from the Commonwealth Court’s decision granting the Office of the Governor declaratory judgment relief. The OOR raises three questions. The second question — addressed by the Majority in Part III of the Opinion — asks “Whether the Commonwealth Court erred by finding it had jurisdiction over the Governor’s original jurisdiction complaint alleging a misinterpretation of statutory law in the absence of any harm or constitutional question?” As the Majority notes, in its briefing of the question, the OOR conflates the distinct notions of jurisdiction, standing, and exhaustion of statutory remedies. See Majority Op. at 449-50,
The Commonwealth Court’s standing decision and the related concession by the Office of the Governor have tenuous support in the plain language of the RTKL or of the Rules of Appellate Procedure. Neither the RTKL nor the Pennsylvania Rules of Aрpellate Procedure purport to foreclose the appeal of a “prevailing” party — the ultimate “winner” of a dispute — upon that ground alone. Section 1801 of the RTKL provides the general rule governing judicial review of OOR decisions: “a requester or the agency may file a petition for review or other document as might be required by rule of court with the Commonwealth Court” within 30 days of the OOR decision’s mailing date. Notably, Section 1301 does not articulate special rules of appealability applicable to RTKL cases. Meanwhile, the rule of appellate procedure governing which persons may take or participate in appeals — Rule 501— states that, “any party who is aggrieved by an appealable order ... may appeal therefrom.” According to the commentary to Rule 501, “[wjhether or not a party is aggrieved by the action below is a substantive question determined by the effect of the action on the party, etc.” Pa.R.A.P. 501 & note. Reading the relevant provisions together, it is apparent that the dispositive concern is whether a party is “aggrieved,” which the note to Rule 501 directs is a substantive question determined
I acknowledge that some decisional law may be read to suggest broadly that a prevailing party is, on that ground alone, not aggrieved and has no standing to appeal. See, e.g., Basile v. H & R Block, Inc.,
This matter illustrates the difficulty with the notion of a bright line rule that a “prevailing” party or ultimate “winner” may not appeal a decision that otherwise directly harms its interests.
I recognize that the Commonwealth Court’s “standing to appeal” holding was superficially colorable, even if the approach was self-contradictory of its “standing” reasoning relating to the declaratory judgment count, and so the Office of the Governor’s concession regarding standing to appeal the OOR’s Donahue decision perhaps is an understandable litigation strategy. Ultimately, the Office of the Governor was permitted to pursue declaratory relief and the “standing to appeal” decision had little immediate practical effect.
But, for this Court, the considerations are distinct. While I agree that approving the correct interpretation of Section 901 is important, this Court also has a supervisory duty to consider the prudential implications of its own procedural decisions for the proper functioning of the judicial system. If the decision were before us, I for one would conclude that the Office of the Governor most certainly was aggrieved by the Donahue decision, an aggrievement that conferred standing for the Office of the Governor to appeal that decision to the Commonweаlth Court pursuant to Rule 501. A case like this should be directly appealable to the Commonwealth Court, to discharge its important direct review function respecting such disputes, and leaving the Supreme Court to review the claims on the discretionary docket, via allocatur petition.
Given the ongoing difficulties with the RTKL and the OOR, and this Court’s power to provide broad guidance, I note there are unintentional and deleterious consequences of the procedural concession by the Office of the Governor and the related suggestion that the Office of the Governor lacked a statutory remedy. First, the lower court decision seemingly sanctioned an agency decision to by-pass the administrative review process and to shortcut the procedure by filing an action in the original jurisdiction of the Commonwealth Court and obtaining review as of right in this Court. Second, the declaratory judgment action is a collateral attack on the administrative decision that would enable the parties to proceed upon a lower burden of proof than in an appeal from an OOR decision, and to avoid salutary prudential concerns such as preservation and presentation of issues. Finally, these procedural artifices place an unnecessary burden upon this Court’s limited resources. The OOR’s and the Commonwealth Court’s miscues in interpreting the RTKL have already generated a flurry of appeals that this Court has accepted on its discretionary docket. The lower court’s approach in this matter has the potential effect of swinging the door open for litigants in OOR matters to file direct appeals of right to this Court. I have written extensively to these concerns in other matters and I will not reiterate those arguments here except by reference. See, e.g., Mercury Trucking, Inc. v. PUC,
The dispute between the parties relating to exhaustion of administrative remedies is a direct result of the arcane rules at play and the fact that the case did not proceed “cleanly” through the appeals process from the initial decision. Respectfully, in my view, it is beyond dispute that, as a general matter, the RTKL provides agencies (including the Office of the Governor) with a statutory remedy to challenge an adverse OOR decision. Any lack of remedy here would flow from the truncated notion of aggrievement I have described above, and thus is a result of the agency’s interpretation of the Rules of Appellate Procedure and its subsequent concession regarding its ability to appeal the OOR decision. Even accepting the argument of the Office of the Governor that it lacked a remedy, the complaint would not be related to a “statutory” remedy but to a rule-based procedural impediment to appeal.
Nevertheless, I have little difficulty with the Majority’s decision to reject the OOR’s claim regarding the exhaustion of statutory remedies, in the context of this sui generis matter, notwithstanding the Office of the Governor’s unnecessary (or perhaps strategic) decision to acquiesce in the Commonwealth’s Court’s holding on standing to appeal. The Court may and should reach the merits of the parties’ dispute for prudential reasons. Resolution of the dispute on the merits unquestionably is important to the Office of the Governor and to all other agencies subject to the RTKL and the OOR. The OOR decision in Donahue may affect numerous parties and agencies, not all of which may have an opportunity to challenge the decision before incurring harm. In this respect, the available statutory remedy is inadequate to vindicate the rights of the multitude of interested parties. In the meantime, the costs to the public purse accompanying agency efforts either to comply with the OOR’s non-textual interpretation or to challenge the rule in every instance are unjustifiable. The OOR should consider more seriously, and fairly, these consequences when fashioning its seemingly shifting litigation stances.
. I have no objection to the Majority's use of the term exhaustion of statutory remedies. I simply distance myself from the distinction drawn in footnote 6 that suggests a substantive or practical difference between exhaustion of "statutory” versus “administrative” remedies.
I also note the characterization by the Office of Open Records of its exhaustion of statutory remedies claim as a jurisdictional imperative. The Majority notes that decisional law is not clear whether such claim implicates jurisdictional or prudential concerns. Accordingly, to the extent that the Majority Opinion addresses the exhaustion of statutory remedies as a jurisdictional concern, I view the expression as adopting the nomenclature used by the parties rather than a doctrinal pronouncement applicable across the board.
. Reference is to Pyrrhus, King of Epirus, a son of Achilles and slayer of King Priam at the sacking of Troy, who, after invading Italy in 280 B.C., sustained heavy losses of his own troops in defeating the Roman legions at Asculum in 279 B.C.
. In my capacity as the elected District Attorney of the City of Philadelphia, I was well aware of the phenomenon of being directly "aggrieved” by decisions in which my office “prevailed.” For example, a direct defense appeal to the Superior Court could result in a published opinion laying down a broad statewide rule of great harm to a multitude of pending and future prosecutions, but nevertheless ultimately denying the defendant relief on that claim, leaving the prosecution up against the prevailing party proscription. See, e.g., Commonwealth v. Devers,
Concurrence Opinion
concurring.
In this case, the Office of the Governor (“OG”) seeks a declaratory judgment that the Office of Open Records (“OOR”) erroneously concluded in an administrative adjudication, in dicta, that the Pennsylvania Righb-to-Know Law (“RTKL”)
I. Standing
In my view, under our traditional standing jurisprudence, OG has suffered no harm to any of its direct and immediate interests, and would ordinarily lack standing to pursue the relief it seeks, thus requiring it to await normal administrative, then judicial, proceedings to raise this issue. The majority’s conclusion to the contrary
As the majority explains, the issue presented herein arose initially when Sean Donahue emailed a request for records to an OG employee, who forwarded the request to the agency’s open records officer. Thereafter, beyond five business days from the employee’s initial receipt, but within five business days of the open rеcords officer’s receipt of the email, OG responded, granting the request in part and denying the request in part. Donahue appealed to OOR, arguing that, pursuant to 65 P.S. § 67.901 (“Section 901”),
Thereafter, OG brought a dual jurisdiction action in the Commonwealth Court seeking: (1) appellate review of the adjudication; and (2) a declaratory judgment that OOR erred in agreeing with Donahue’s construction of Section 901. With respect to the appellate action, the Commonwealth Court entered a single judge order quashing the appeal, reasoning that OG, having prevailed below, lacked standing to appeal. With respect to the declaratory judgment action, OOR argued that OG had suffered no harm to its immediate interests and, thus, lacked standing to pursue declaratory relief. The Commonwealth Court disagreed, entering a similar single judge order finding that the adjudication had harmed OG by creating “controversy between [OOR] and [OG], and uncertainty ... over the proper interpretation of the [RTKL].” Commonwealth v. Donahue, 376 M.D.2012 (Pa.Cmwlth. filed Aug. 28, 2012) (order). The declaratory judgment action then proceeded to a three judge panel and, regarding the standing issue, the court refused to reconsider its earlier order. Commonwealth v. Donahue,
In its opinion, the majority reasons that, notwithstanding the fact that OOR’s announcement of its view of Section 901 was dicta, OG has standing to maintain the declaratory judgment action because OOR’s defense of that dicta in the instant proceedings is the functional equivalent taking an official “position.” Majority Opinion at 448-49,
As a matter of prudence, Pennsylvania courts do not issue advisory opinions and, thus, a party seeking to invoke judicial power must ordinarily demonstrate that it has standing — that the asserted legal violation of which it complains has caused harm to one of its substantial, direct, and immediate interests. Pittsburgh Palisades Park v. Commonwealth,
In keeping with those goals, this Court has consistently refused to exercise judicial power to remedy speculative future harms. In Pittsburgh Palisades Park, the petitioners, who intended to apply for gaming licenses, sought to challenge a statute providing for the refund of license fees in the event of subsequent legislative changes to the legal regime governing the gaming industry, arguing it “handcuffed” the General Assembly from making such changes and violated that body’s exclusive right to exercise legislative power. This Court held that the petitioners lacked standing, in part, because they had not yet even applied for gaming licenses and because there was no evidеnce that the legislature had sought to change, but been restrained from changing, gaming law:
Petitioners ... at this juncture they have not been issued a gaming license and there have been no allegations that legislators have been “handcuffed” by the prospect of returning gaming fees. Thus, any possible harm to Petitioners is wholly contingent on future events. As such, they have no immediate interest in this constitutional challenge. As Petitioners have no ... immediate interest in challenging the constitutionality of [the statute], we find that they lack standing to bring this challenge.
Pittsburgh Palisades Park,
Thus, in the instant case, OG would typically be required to demonstrate that OOR’s ruling has caused harm to its immediate interests, which it may do by demonstrating an actual or imminent injury, or by demonstrating that the legal issue it raises is adequately developed and that OOR’s ruling has created a double-bind that will, regardless of OG’s decision to comply or not, impose significant burdens on its interests. As an initial matter, OG does not explain how the dicta has already caused or will imminently cause it injury. Since OOR ruled that OG was entitled to withhold the documents Donahue requested, its ruling has had no instant effect, and its proffered injuries are purely prospective.
Furthermore, although the question is closer, OG does not demonstrate that OOR’s conclusion, assuming it is OOR’s definitive interpretation of the statute,
First, I question whether, as contemplated by the Abbott/Arsenal Coal decisions, the instant issue is sufficiently developed for review. In making this determination, we consider “whether the claim involves uncertain and contingent events that may not occur as anticipated or at all; the amount of fact finding requirеd to resolve the issue; and whether the parties to the action are sufficiently adverse.” Twp. of Derry v. Pennsylvania Dep’t of Lab. and Indus.,
Second, in my view, OG has failed to demonstrate that OOR’s adjudication placed it in a dilemma of compliance or noncompliance, where either option comes at great cost. Admittedly, OOR’s dicta may give OG pause as to how it should deal with improperly filed and less-expeditiously forwarded RTKL requests for records in the future, its burdens do not appear both substantial and unavoidable. On one hand, if OG acquiesces in OOR’s expressed view of the RTKL’s requirements, it may have to adopt new procedures for handling improperly filed RTKL requests, which could require some administrative expense. Without elaborating on the claim or offering supporting evidence, OG asserts compliance would come “at a significant administrative burden.” OG’s Briеf at 12.
On the other hand, especially if it deems the administrative expense too onerous, it can reject OOR’s view, and, if necessary, litigate the question. Thus, if a future RTKL requestor improperly files a request for records with one of OG’s employees other than its open-records officer, and if the employee delays in forwarding the request to the open-records officer, it can follow its own view of the statute and respond within five business days of the
Thus, OOR’s ruling requires OG to choose between what it views as an unjustified administrative burden or a quite remote possibility that it may be required to disclose challenged documents. In my view, pursuant to Abbott and Arsenal Coal, these choices do not warrant departure from the normal course of judicial review to raise the question of whether OOR’s current view of the statute is correct.
The majority notes that OOR’s interpretation of Section 901 presents OG with a choice to comply with potential additional administrative burdens, or not to comply and await judicial review. Majority Opinion at 456 & n. 10,
Appellants may refuse to comply and test the regulations by appealing, for example, a denial of permit to operate, or a denial of bond release, or by defending actions imposing sanctions for non-complianсe. 52 P.S. § 1396.4(b). This proposed avenue of review is beset with penalties and impediments to the operation of the anthracite industry rendering it inadequate as a satisfactory alternative to the equitable action initiated under the original jurisdiction of Commonwealth Court.
The alternative to challenging the regulation through noncompliance is to submit to the regulations. We cannot say that the burden of such a course is other than substantial, accepting, as we must on a motion to dismiss on the pleadings, the allegations of the complaint as true. Appellants have alleged that the regulations require the expenditure of substantial sums to comply which, while not immediately calculable, will substantially impair the cash flow of all Appellants. Whether or not this allegation is true, it is clear that if Appellants elect to comply and await judicial determination of validity in subsequent piecemeal litigation, the process would be costly and inefficient.
Arsenal Coal,
Likewise, in Bayada Nurses, a 38-office, 1,000-employee home care services corporation sought to challenge a Pennsylvania Department of Labor regulation refusing to apply wage and hour law’s “domestic services” exemption to home healthcare agencies’ employees, the violation of which would have subjected it to strong civil and criminal penalties. Bayada Nurses,
Bayada is faced with the option of continuing its operations, and ignoring the Department’s interpretation regarding overtime requirements and risk penalties and fines, including criminal sanctions, or complying with what it believes to be the Department’s erroneous interpretation and awaiting a judicial determination in subsequent litigation, in the interim bearing the not insignificant cost of compliance.
Bayada Nurses,
Indeed, the United States Supreme Court’s decision in Toilet Goods Ass’n is an instructive guide. Therein, the court refused to engage in pre-enforcement review of the FDA’s authority to promulgate regulations concerning inspections of food additive manufacturing facilities, noting that the inquiry included consideration of “the degree and nature of the regulation’s present effect on those seeking relief.” Toilet Goods Ass’n,
This is not a situation in which primary conduct is affected — when contracts must be negotiated, ingredients testedor substituted, or special records compiled. This regulation merely states that the Commissioner may authorize inspectors to examine certain processes or formulae; no advance action is required of cosmetics manufacturers, who since the enactment of the 1938 Act have been under a statutory duty to permit reasonable inspection of a “factory, warehouse, establishment, or vehicle and all pertinent equipment, finished and unfinished materials; containers, and labeling therein.” Moreover, no irremediable adverse consequences flow from requiring a later challenge to this regulation by a manufacturer who refuses to allow this type of inspection. Unlike the other regulations challenged in this action, in which seizure of goods, heavy fines, adverse publicity for distributing “adulterated” goods, and possible criminal liability might penalize failure to comply, a refusal to admit an inspector here would at most lead only to a suspension of certification services to the particular party, a determination that can then be promptly challenged through an administrative procedure, which in turn is reviewable by a court. Such review will provide an adequate forum for testing the regulation in a concrete situation.
Toilet Goods Ass’n,
Finally, I am concerned that the majority’s decision to extend Abbott/Arsenal Coal to the instant context will give rise to significant unintended consequences. By permitting a challenge to an administrative agency’s dicta based on speculative future administrative and litigation burdens, the Court virtually ensures that future parties, private and public alike, will have a right to challenge the validity of legal pronouncements made in statutes, formal and informal regulations, ordinances, adjudicative (and even judicial) dicta based solely on the “uncertainty” that such pronouncements may or may not be accurate, purely on the ground that the statute regulates conduct in which they intend to engage. Granting such a right virtually guarantees that this Court will be embroiled in poorly developed, ill-considered, and largely academic debates examining other governmental entities’ legal judgments.
Accordingly, I would not attempt to sanction standing in this matter under the umbrella of Abbott and Arsenal Coal. Rather, in the fairly unique context of this case, and given that our application of the standing doctrine is prudential in nature, I am inclined to apply a more holistic view. As noted above, this Court refuses to issue advisory opinions largely out of concern that doing so robs the court of the practical factual predicate and adversarial argument necessary for the resolution of complex legal issues. In the instаnt matter, however, the need for legal guidance is greater than the average case, as OG, as well as the multifarious other state governmental agencies subject to the RTKL’s requirements, have a sovereign duty to follow the law in their day-to-day responsibilities and to do so faithfully in the interests of the citizenry. Cf. Georgia v. Tennessee Copper Co.,
II. Exhaustion
With respect to the doctrine requiring the exhaustion of administrative remedies, I agree with the sentiments expressed by the majority and Chief Justice Castille in his Concurring Opinion that the unique circumstances of this case warrant some dispensation regarding that rule. As the majority recognizes, the doctrine requiring exhaustion of administrative remedies may give way where “the administrative process has nothing to contribute to the decision of the issue and there are no special reasons for postponing ... decision” or deciding the issue now serves to avoid the proliferation of “a multiplicity of duplicative lawsuits” by providing “a tidy global resolution,” and both principles are plainly applicable in the instant matter. See Majority Op. at 456,
. 65 P.S. § 67.101 etseq.
. Section 901 provides that "[u]pon receipt of a written request for access to a record, an agency shall make a good faith effort to ... respond as promptly as possible under the circumstances ... The time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency. If the agency fails to send the response within five business days of receipt of the written request for access, the written request for access shall be deemed denied.”
. Although federal and Pennsylvania justiciability doctrines are distinct in that federal courts lack the power to issue advisory opinions, while Pennsylvania courts have the power, but, out of caution, decline to exercise it, the doctrines’ policy goals and substance are substantially similar, and this Court has frequently used federal justiciability doctrine to inform its own decisions. See Rendell v. Pa. State Ethics Comm’n,
. I have some concern with the majority’s sub silentio decision to extend the Abbott/Arsenal Coal line of decisions outside the context of formal administrative regulations, and note that the Abbott decision was, in some measure, predicated on the view that such regulations were final, formalized decisions of the agency itself. See Abbott,
. I question whether OOR will persist in its view of Section 901’s provisions concerning the effect of a deemed denial where a response is untimely, as this Court has cast doubt upon, and the Commonwealth Court has definitively rejected, the view that a deemed denial works a waiver of an agency's defenses to disclosure of all the documents requested. See Levy v. Senate of Pa.,
. However, I reiterate that, contrary to the majority’s view, as detailed above, Arsenal Coal and its progeny do not apply in the instant context.
Concurrence Opinion
concurring.
I join the majority in its entirety. I write separately, however, to reaffirm my support of the importance of the Right-to-Know Law (RTKL).
. 65 P.S. § 67.101 et. seq.