Commonwealth Court issues significant Right to Know opinions
May 28, 2010 | Filed in: Right to Know
Law | Open
records
OPINION
By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association
Last week was a significant one for access issues, with the Commonwealth Court issuing four decisions interpreting the amended Right to Know Law.
First, the good news. In East Stroudsburg University Foundation v. Office of Open Records, the Commonwealth Court ruled 7-0 to require the East Stroudsburg University Foundation to release donation records, as well as certain meeting minutes, to the Pocono Record. The case is significant, as it is the first appellate decision addressing the scope of the Law’s provision dealing with records of third-party contractors performing a “governmental function.”
Under the amended Right to Know Law, many records of government contractors are “public records” if they relate to a “governmental function.” Since the amended Law went into effect, there has been much discussion and debate about how to define “governmental function.” The Commonwealth Court, in this opinion, adopted a broad definition of the term. According to Judge Dan Pellegrini, writing for the majority, “all contracts that governmental entities enter into with private contractors necessarily carry out a 'governmental function' — because the government always acts as the government.” In other words, all government contractors should be subject to this provision of the Law.
Also significant, and not desirable from the requester perspective, the Court in East Stroudsburg ruled that the Office of Open Records did not have standing to participate in the appeal. This apparently means that the Office of Open Records may not participate in court appeals of its decisions, which places an increased burden on any requester that has to appeal (or respond to an appeal) for access to records.
The decision can be found here
In a very disappointing – and difficult to understand - decision, the Court ruled in DCNR v. Office of Open Records, that names and addresses in certified payroll records of third-party government contractors are not public. Judge Kevin Brobson wrote the majority decision, joined by President Judge Bonnie Brigance Leadbetter and Judge Johnny Butler. Judge Patricia McCullough concurred, joined by Judge Renee Cohn Jubelirer. Judge Robin Simpson and Judge Dan Pellegrini dissented.
The case was consolidated with two similar cases involving Commonwealth agencies (The Office of the Budget and the Department of General Services). In each case, a request for payroll records of third party contractors was submitted to the agencies. The agencies redacted names and addresses from the records arguing, among other things, that there is Constitutional right to privacy in one’s home address and alternatively, that names and addresses of nongovernmental employees constitute “personal financial information,” made non-public by section 708(b)(6) of the Right to Know Law. The Office of Open Records granted access to the names and addresses, and the agencies appealed.
The Court did not address the Constitutional argument, denying access to names and addresses, based on the “personal financial” exemption. Under the Law, “personal financial information” is defined as “[a]n individual’s personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.”
As an organization that was significantly involved in the drafting of the amended Right to Know Law, we find this decision particularly troubling. It expands “personal financial information” beyond account numbers and confidential PINS to include names and addresses, despite the fact that this type of information is not within the definition, and completely ignores the fact that this prevents the public from knowing how its money is being spent on public contracts.
In his dissenting opinion, joined by Judge Pellegrini, Judge Simpson argued – correctly, in our view - that the names and addresses are not “personal financial information,” as they are not the type of information that can lead to access to an individual’s financial resources (such as a bank or other financial account). He also emphasized the important public interest in following public money and that the exemptions in the Law must be narrowly construed.
You can read the opinions here
Pa State Police v. The Office of Open Records involved the specificity of a request. It reversed, in part, a decision of the Office of Open Records, by finding that a portion of the initial request was sufficiently specific. Accordingly, the Court ordered the State Police to respond to that part of the request. The Court also made clear that the Office of Open Records may not unilaterally narrow the scope of a request.
You can read the decision here
Finally, in Signature Information Solutions, LLC. v. Aston Township, the Court ruled that an agency could not expand its reasons for denying access after a requester has filed an appeal to the Office of Open Records.
Signature Solutions dealt with a request for delinquent tax records. The agency initially denied access citing section 704 of the Right to Know Law, which allows agencies to make public records available online. Signature filed an appeal with the Office of Open Records, and subsequent to the appeal, the agency raised new grounds for denial. The OOR granted access, ruling that grounds for denial not stated in the agency denial letter could not serve as a basis for denial on appeal. The agency appealed to the Court of Common Pleas of Delaware County, which reversed the OOR and allowed the new grounds for denial.
The Commonwealth Court reversed the trial court and affirmed the decision of the OOR. The Court ruled that allowing an agency to expand grounds for denial subsequent to appeal conflicts with the statute, is not fair or just, and does not allow for expeditious resolution of the dispute.
This ruling prohibits agencies from raising grounds for denial on appeal that are not contained in the agency’s initial denial. In contrast, the Court has made it clear that the Court’s scope of review on appeal is broad, including that the Court may accept additional evidence and make its own factual findings on appeal.
You can read the opinion here
By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association
Last week was a significant one for access issues, with the Commonwealth Court issuing four decisions interpreting the amended Right to Know Law.
Records of third-party government contractors
First, the good news. In East Stroudsburg University Foundation v. Office of Open Records, the Commonwealth Court ruled 7-0 to require the East Stroudsburg University Foundation to release donation records, as well as certain meeting minutes, to the Pocono Record. The case is significant, as it is the first appellate decision addressing the scope of the Law’s provision dealing with records of third-party contractors performing a “governmental function.”
Under the amended Right to Know Law, many records of government contractors are “public records” if they relate to a “governmental function.” Since the amended Law went into effect, there has been much discussion and debate about how to define “governmental function.” The Commonwealth Court, in this opinion, adopted a broad definition of the term. According to Judge Dan Pellegrini, writing for the majority, “all contracts that governmental entities enter into with private contractors necessarily carry out a 'governmental function' — because the government always acts as the government.” In other words, all government contractors should be subject to this provision of the Law.
Also significant, and not desirable from the requester perspective, the Court in East Stroudsburg ruled that the Office of Open Records did not have standing to participate in the appeal. This apparently means that the Office of Open Records may not participate in court appeals of its decisions, which places an increased burden on any requester that has to appeal (or respond to an appeal) for access to records.
The decision can be found here
Names and addresses of government contractors exempt
In a very disappointing – and difficult to understand - decision, the Court ruled in DCNR v. Office of Open Records, that names and addresses in certified payroll records of third-party government contractors are not public. Judge Kevin Brobson wrote the majority decision, joined by President Judge Bonnie Brigance Leadbetter and Judge Johnny Butler. Judge Patricia McCullough concurred, joined by Judge Renee Cohn Jubelirer. Judge Robin Simpson and Judge Dan Pellegrini dissented.
The case was consolidated with two similar cases involving Commonwealth agencies (The Office of the Budget and the Department of General Services). In each case, a request for payroll records of third party contractors was submitted to the agencies. The agencies redacted names and addresses from the records arguing, among other things, that there is Constitutional right to privacy in one’s home address and alternatively, that names and addresses of nongovernmental employees constitute “personal financial information,” made non-public by section 708(b)(6) of the Right to Know Law. The Office of Open Records granted access to the names and addresses, and the agencies appealed.
The Court did not address the Constitutional argument, denying access to names and addresses, based on the “personal financial” exemption. Under the Law, “personal financial information” is defined as “[a]n individual’s personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.”
As an organization that was significantly involved in the drafting of the amended Right to Know Law, we find this decision particularly troubling. It expands “personal financial information” beyond account numbers and confidential PINS to include names and addresses, despite the fact that this type of information is not within the definition, and completely ignores the fact that this prevents the public from knowing how its money is being spent on public contracts.
In his dissenting opinion, joined by Judge Pellegrini, Judge Simpson argued – correctly, in our view - that the names and addresses are not “personal financial information,” as they are not the type of information that can lead to access to an individual’s financial resources (such as a bank or other financial account). He also emphasized the important public interest in following public money and that the exemptions in the Law must be narrowly construed.
You can read the opinions here
Specificity of request
Pa State Police v. The Office of Open Records involved the specificity of a request. It reversed, in part, a decision of the Office of Open Records, by finding that a portion of the initial request was sufficiently specific. Accordingly, the Court ordered the State Police to respond to that part of the request. The Court also made clear that the Office of Open Records may not unilaterally narrow the scope of a request.
You can read the decision here
Agency may not expand reasons for denial on appeal
Finally, in Signature Information Solutions, LLC. v. Aston Township, the Court ruled that an agency could not expand its reasons for denying access after a requester has filed an appeal to the Office of Open Records.
Signature Solutions dealt with a request for delinquent tax records. The agency initially denied access citing section 704 of the Right to Know Law, which allows agencies to make public records available online. Signature filed an appeal with the Office of Open Records, and subsequent to the appeal, the agency raised new grounds for denial. The OOR granted access, ruling that grounds for denial not stated in the agency denial letter could not serve as a basis for denial on appeal. The agency appealed to the Court of Common Pleas of Delaware County, which reversed the OOR and allowed the new grounds for denial.
The Commonwealth Court reversed the trial court and affirmed the decision of the OOR. The Court ruled that allowing an agency to expand grounds for denial subsequent to appeal conflicts with the statute, is not fair or just, and does not allow for expeditious resolution of the dispute.
This ruling prohibits agencies from raising grounds for denial on appeal that are not contained in the agency’s initial denial. In contrast, the Court has made it clear that the Court’s scope of review on appeal is broad, including that the Court may accept additional evidence and make its own factual findings on appeal.
You can read the opinion here