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Award of paper’s legal costs over records request upheld

December 22, 2020 GMT

HARRISBURG, Pa. (AP) — A six-figure assessment of legal costs against the Department of Corrections over an open records request deemed to have been handled in bad faith was upheld Tuesday by the Pennsylvania Supreme Court.

The justices said the $118,000 cost was justified because of how prison system officials and employees responded to a newspaper’s request for information regarding a fly ash dump and possible water contamination.

A reporter with the Uniontown Herald-Standard asked for the records in September 2014 to check into concerns that fly ash or water contamination may have been sickening people inside the prison or in a nearby community. Fly ash is a byproduct of burning coal to generate electricity.

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A Commonwealth Court judge two years ago determined that in its initial response to the request, Corrections did not properly search for records in its possession before denying access, and therefore acted in bad faith, justifying reimbursing the paper’s legal costs.

Justice Sallie Mundy wrote that the court’s majority found it wasn’t sufficient for the agency’s open records officer to simply rely on “representations of others without inquiring as to what investigation was made and without reviewing the records.”

A two-justice dissent said the technical language of the Right-to-Know Law did not provide for legal costs as were awarded in the case, suggesting that would require a legislative change to the statute. The other dissent concluded the Corrections Department’s search for responsive records had not been done in bad faith.

A Corrections Department spokeswoman declined comment.