Two citizens in the Delaware Valley find themselves in court battles with Montgomery County after filing Right-to-Know Law requests with the government, only to be hit with demands for prepayment of fees ranging into the thousands of dollars.
In both cases, the requester appealed to the Pennsylvania Office of Open Records (OOR) and won. But now both cases have been elevated to court, adding expense to the effort and delaying by months the delivery of any documents that might have to be turned over.
While the fees requested might be something of an outlier, the fight to obtain records by these two people is nevertheless emblematic of the growing power — and the ensuing power struggles — that citizens have found through the Right-to-Know law sparked primarily by the pandemic.
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Edward Sotherden, a Montco resident, says he began to develop an expertise with using the Right-to-Know Law (RTK) in the early part of the 2020 pandemic, as he wanted to pull back the curtain on how the county and some school districts were making health and safety decisions.
But in 2021, as public interest and controversy grew about the 2020 election grants from the Center for Tech and Civic Life, he filed a request with the county seeking communications related to the Chicago-based nonprofit.
By this time, Sotherden was used to his requests undergoing 30-day extensions that slow the process down. But next the county said it had located an estimated 21,150 pages of documents, and he needed to prepay almost $5,300.
“I thought that was ridiculous, and so I appealed that to the office of open records,” he said. The OOR ruled in his favor.
OOR appeal rulings are final only if both parties submit to the final determination. In this instance, Montgomery County elevated the matter to the Court of Common Pleas, hoping a judge would overturn the OOR’s ruling.
Sotherden claims the county purposefully worked to make his search overly broad.
He pointed to language from the county’s filing which said: “It is important to note that a keyword search for ‘The Center for Tech and Civic Life’ will include every email, report, [and] document in the specified time frame which contains the keywords ‘Center,’ ‘for,’ ‘Tech,’ ‘and,’ ‘Civic,’ [and] ‘Life’ and there is no way for the County to sort this data otherwise.”
It’s not immediately clear if the search would turn up documents that include all six of those words in any order, as opposed to any single instance of just one of those words. Whichever case, Sotherden feels incredulous.
“I understand how searches work with archived email,” he said. “And so I know I can have a search done specifically for a phrase and not every single word in that phrase. Of course it’s going to be ridiculous to search for the word ‘and’ — it is going to come up in every email.”
But the appeals document makes abundantly clear that the county attempted to charge Sotherden for the photocopies it wanted to make just to review and redact elements of the communications.
While the OOR would legally allow redactions like email addresses and personal phone numbers, it nevertheless rebuked the county’s methods.
“Here, the County has provided evidence of its search for records; however, it has not established how many of those records will actually need to be duplicated for redaction,” the OOR ruling said. “It appears the County has not yet reviewed the records and determined which records require redaction and which records may be granted.”
The RTK does not permit “an agency to charge duplication fees simply so that an agency may review the records in hard copy,” the OOR concluded.
Montgomery county completely ghosted me. I had [sent] lots of emails, never heard a thing back.
One of Sotherden’s neighbors to the north, Megan Brock of Bucks County, has also become her own RTK expert in the last two years. Just like Sotherden, her interest began with trying to obtain records related to Covid-19 lockdowns and other mandates.
Even though she’s a resident of Bucks, she didn’t limit her requests strictly to her home county, and in the early part of the pandemic, she filed a request with Montgomery as well, focusing on several keywords related to the pandemic and certain public officials.
“When I filed the request, they contacted me and said, ‘Okay, we have 122,000 pages, but if you want them, you have to give us a prepayment of over $31,000,’ which in my opinion seemed like it was probably just trying to get me to go away, probably thinking that I would just see that number and walk away,” Brock said.
Like Sotherden, Brock appealed her request to the OOR and won, but the differences stop there.
While Montgomery County elevated Sotherden’s request to court, Brock was the one who initiated legal proceedings after she says the county ignored the OOR’s finding.
“Montgomery County completely ghosted me. I had [sent] lots of emails, never heard a thing back.”
The county declined to comment on Sotherden and Brock’s cases because both are active.
However, county spokeswoman Kelly Cofrancisco did add, “Montgomery County is proud to maintain an efficient and transparent process for requesting open records.”
She pointed to a recent OOR audit of various governments across the commonwealth analyzing required language on the governments’ RTK webpages, and said Montco “was recently recognized as a model county” in that review.
Additionally, as Broad + Liberty has previously highlighted, Montgomery County is the only one of Philadelphia’s collar counties that proactively posts county-level campaign finance data on candidates.
So far, Sotherden has acquired legal counsel and is financing his own legal fight.
Brock is running a fundraising campaign to help her amass the $10,000 she estimates is needed to see the fight through to winning documents. As of this publication, she’s raised about $4,000.
Similar stories have played out at the school district level as well.
In December, Broad + Liberty detailed Kaitlin McLaughlin’s struggles to pry documents from the Upper Moreland School District. Much like Sotherden, McLaughlin believes the search terms used to locate documents were biased against producing substantive documents.
Her RTK request, filed with the school district in January of 2021, won a favorable appeal from the OOR in September of that year. Her case is also pending in court.
Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at email@example.com, or use his encrypted email at firstname.lastname@example.org. @shepherdreports