Pennsylvania’s Right-to-Know Law (“RTKL”) provides access to public records and promotes transparency in our Commonwealth. A record in the possession of a government agency is presumed to be public unless the record is protected by privilege, exempt under state or federal law, or is exempt under Section 708 of the RTKL. 65 P.S. §67.305. But what if the records don’t exist? What is a municipality legally required to do before saying “no records exist” when responding to a RTKL request?
What the Law Says
Under Section 901 of the RTKL, in response to a request for records, “an agency shall make a good faith effort to determine if . . . the agency has possession, custody, or control of the record[.] 65 P.S. §67.901. While the RTKL does not define the term “good faith effort” as used in Section 901 of the RTKL, the Commonwealth Court outlined the elements of a good faith search in Uniontown Newspapers, Inc. Pa. Dep’t of Corr., 185 A.3d 1161 (Pa. Commw. Ct. 2018) aff’d, 243 A.3d 19 (Pa. 2020). The Court noted that an Agency Open Records Officer (“AORO”) has a duty to:
- Advise all custodians of potentially responsive records about the request;
- Obtain all potentially responsive records from those in possession of the potentially responsive records;
- Contact agents within its control, including third party contractors; and
- Review the records and assess their public nature.
Id.
Thus, before responding to a request by saying “no records exist,” a municipality should first conduct a “good faith search.” This doesn’t just mean checking a single folder or sending a quick email. It means taking concrete steps to determine whether responsive records exist, and if so, whether they are accessible to the public. While agencies are not required to produce records that don’t exist or fall outside the RTKL, they are required to follow a process that demonstrates diligence, communication, and accountability.
Why It Matters
Performing a proper good faith search is not only a legal obligation —it’s a vital way to maintain public trust and avoid legal exposure. With clear communication, internal coordination, and thoughtful documentation, a municipality can stand behind its response to a Right-to-Know Law request and minimize the risk of an appeal to the Pennsylvania Office of Open Records.
In the end, a “no records” response may be lawful, but only if the search behind it is done in good faith.
