From PNA Legal

OPINION

In a September 9, 2009 memorandum and order, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that unsuccessful bids in the possession of a government contractor are public records. The decision is the first one in which a court has considered the obligations of government contractors under the new Right to Know Law.

The bids at issue relate to a contract for concessions at the Triple-A Baseball Stadium in Lackawanna County. The County Stadium Authority had contracted with a management company, SWB Yankees, to run events at the Stadium, and the Court ruled that the management company is performing a "governmental function," making its records subject to Pennsylvania's Right to Know Law.

The Right to Know Law was amended in 2008 to create a presumption that all records of state and local agencies are public records. Another provision in the amended law states that records held by third-party contractors performing a "governmental function" (and relating to that governmental function) are presumptively public records.

In January, 2009, Gretchen Wintermantel, a reporter for The Scranton Times-Tribune, made a Right to Know request to the Authority, seeking copies of the names and bids submitted to SWB Yankees relating to the concession contract at the Stadium. The Authority denied access, claiming, among other things, that SWB Yankees was not performing a "governmental function," and that the records were not public records. Wintermantel appealed to the Office of Open Records, which ruled that the records were public under the Law. SWB Yankees then filed an appeal with the Lackawanna Court of Common Pleas.

Yesterday, the Court affirmed the Office of Open Records, ordering SWB Yankees to provide the newspaper with copies of the bids or proposals that SWB Yankees received in connection with the concessions contract. The Court did allow that certain information, e.g., financial capability information, if contained in the bid documents, could be redacted, subject to court review if challenged. The Court addressed a number of significant issues in the 39-page opinion, including scope and standard of review and what constitutes a "governmental function" under the amended Right to Know Law.

On the scope and standard of review issue, the Court found that the appeal was de novo and that the ruling below must be affirmed unless it violated the constitutional rights of the appellant, was not in accordance with the law, or necessary findings of fact were not supported by substantial evidence.

In ruling that the Stadium management company was performing a "governmental function," the Court emphasized that the management company was engaged in activities: 1) that the agency (Authority) was empowered to conduct; 2) that the agency previously performed; 3) that are conducted on agency-owned property; 4) in which the agency has a continuing financial interest; and 5) that affect the quality or cost of goods or services offered to the public on agency-owned property.

The Court rejected the management company's arguments that "governmental function" should be defined narrowly and as used in unrelated caselaw regarding the ability of outgoing governing bodies to bind their successors. As pointed out by the Court, if SWB Yankees' interpretation carried the day, no third party contractor retained by any municipal authority in the Commonwealth would ever be subject to the Right to Know Law. This cannot be the case, since Authorities are clearly agencies subject to the Law.

In a footnote, the Court also questioned whether the management company actually had standing to bring the court appeal, since it was neither a requester nor an agency. The issue was not raised by the parties, however, so the Court did not decide the issue.

This decision is significant for several reasons. First, the Court engaged in a detailed discussion regarding standard and scope of review, issues that have been the subject of much debate since the amended Law took effect. In addition, to our knowledge, this is the first court decision interpreting the phrase "governmental function" under the amended Right to Know Law. Agencies across the Commonwealth have been advocating for a more restrictive interpretation of this phrase, but Judge Nealon engaged in a detailed, thoughtful analysis in determining the standard that should apply, including references to the statutory language, case law, and the purpose and intent of the amended Law.

Pennsylvania Newspaper Association attorneys provide member newspapers with advice on the state's open records and open meetings laws, and maintain PNA Legal, a blog dedicated to discussing legal and legislative issues impacting the news media in Pennsylvania.