Granted: State university foundation's donation information
April 10, 2009 Filed in: Granted
| Denied
| Appealed to
court | East
Stroudsburg University | Donations
| Third-party
contractors | Governmental
function | Media
request
Granted in part and denied in
part: A request to East Stroudsburg
University for donor information and minutes of
meetings held by the East Stroudsburg University
Foundation. The Office of Open Records granted
access to donaton information, with donors names
redacted, as information from a third-party
contractor performing a governmental function.
The minutes of the foundation's meetings were
denied.
From
the Pennsylvania Freedom of Information
Coalition
Granted in part and denied in part: A request to East Stroudsburg University for donor information and minutes of meetings held by the East Stroudsburg University Foundation. The Office of Open Records granted access to donaton information, with donors names redacted, as information from a third-party contractor performing a governmental function. The minutes of the foundation's meetings were denied.
ESU had denied the request stating that it sought records of an entity not subject to the Right to Know Law.
The Office of Open Records found:
-- That the East Stroudsburg University Foundation is not an "agency" pursuant to the Right to Know Law. It noted, however, that the requester did not suggest it was, and did not present its request directly to the foundation, but to the university, relying on the foundation's status as a contractor to ESU.
-- That the Memoradum of Understading between ESU and the foundation is a contract for performance of a governmental function. While ESU attempted to claim that higher education is not an essential government function, the OOR noted that the law specifically includes government-funded universities as agencies under the new Right to Know Law. The OOR also said the issue at hand was not whether or not higher education itself as an essential governmental function, but whether or not ESU had contracted out duties it would otherwise have had to perform.
"ESUF and ESU go to lengths to demonstrate their independence from each other, but this is irrelevant to the applicability [of the law] which does not require proof of any relationship between the agency and a third party other than a contract for the performance of a governmental function."
-- That the minutes of the Foundation are not public records. The OOR agreed that as a private corporation, the Foundation's meetings are not "public meetings," and the minutes of those meetings do not meet the definition of a public record.
-- That while donor names are protected from disclosure, the remainder of the request, including the amounts of pledges, payments and dates made, outstanding balance, records of transactions, funds transfers, classification, and external and internal correspondence via e-mail and memos related to donations is public record, subject to redaction of names.
"To the extent that records related to specific donors were requested, that information is exempt if disclosure would reveal their identity," the Office of Open Records ruled. "We reject [the requester's] argument that ESU must determine whether or not donors are deceased or already known to be without merit, as the RTKL is clear that records that would disclose identity of donors are exempt."
The university was directed to provide a list of donations to the Science and Technology Center, including all of the information requested except for the names of the donors, which may be redacted. It also directed that information requested from its donor files be made available, redacting names.
Berrett vs. East Stroudsburg University of Pennsylvania -- AP 2009-0110
APPEALED TO COMMONWEALTH COURT: May 7, 2009
Granted in part and denied in part: A request to East Stroudsburg University for donor information and minutes of meetings held by the East Stroudsburg University Foundation. The Office of Open Records granted access to donaton information, with donors names redacted, as information from a third-party contractor performing a governmental function. The minutes of the foundation's meetings were denied.
ESU had denied the request stating that it sought records of an entity not subject to the Right to Know Law.
The Office of Open Records found:
-- That the East Stroudsburg University Foundation is not an "agency" pursuant to the Right to Know Law. It noted, however, that the requester did not suggest it was, and did not present its request directly to the foundation, but to the university, relying on the foundation's status as a contractor to ESU.
-- That the Memoradum of Understading between ESU and the foundation is a contract for performance of a governmental function. While ESU attempted to claim that higher education is not an essential government function, the OOR noted that the law specifically includes government-funded universities as agencies under the new Right to Know Law. The OOR also said the issue at hand was not whether or not higher education itself as an essential governmental function, but whether or not ESU had contracted out duties it would otherwise have had to perform.
"ESUF and ESU go to lengths to demonstrate their independence from each other, but this is irrelevant to the applicability [of the law] which does not require proof of any relationship between the agency and a third party other than a contract for the performance of a governmental function."
-- That the minutes of the Foundation are not public records. The OOR agreed that as a private corporation, the Foundation's meetings are not "public meetings," and the minutes of those meetings do not meet the definition of a public record.
-- That while donor names are protected from disclosure, the remainder of the request, including the amounts of pledges, payments and dates made, outstanding balance, records of transactions, funds transfers, classification, and external and internal correspondence via e-mail and memos related to donations is public record, subject to redaction of names.
"To the extent that records related to specific donors were requested, that information is exempt if disclosure would reveal their identity," the Office of Open Records ruled. "We reject [the requester's] argument that ESU must determine whether or not donors are deceased or already known to be without merit, as the RTKL is clear that records that would disclose identity of donors are exempt."
The university was directed to provide a list of donations to the Science and Technology Center, including all of the information requested except for the names of the donors, which may be redacted. It also directed that information requested from its donor files be made available, redacting names.
Berrett vs. East Stroudsburg University of Pennsylvania -- AP 2009-0110
APPEALED TO COMMONWEALTH COURT: May 7, 2009