Guidance from the Office of Open Records

Since the new Right-to-Know Law (RTKL) took effect on January 1, 2009, as of June 22, 2009, the State Office of Open Records (OOR) has rendered over 250 final determinations, 31 of which have been appealed to Court with three judicial decisions entered by the Courts of Common Pleas.  The OOR decisions are specific as to the record requested and the exception raised by the public entity and do not address whether other exceptions or statutory provisions apply.  With this in mind, of the OOR decisions rendered, there are several that have general application to School Districts and municipalities, which, for your convenience, are summarized below.  This site will be periodically updated to reflect current decisions of the OOR and Courts.  If you have any specific questions as to the application of the RTKL to a request which you received, any of our attorneys on the Education Law Team can respond to your inquiries.

REQUESTS REGARDING PREDECISIONAL DELIBERATIONS/DRAFTS

Barget v. Southeastern School District – AP 2009-0441.  A request was made for a copy of the School District budget and the District denied the request on the basis that the record requested was a draft or work paper under an exception contained in Section 67.708(b)(12) of the RTKL.  The District characterized the budget requested as the “Proposed Expenditure Budget” which, according to the terms adopted by PDE and the sections of Act 1 of 2006 cited by the District in its denial letter, was a public record under School Code Section 6-687.  Therefore, with regard to the exemption relied upon by the District, OOR held that Section 67.708(b)(12) of the RTKL was not applicable to draft budgets which are not prepared for personal use and are not of the same character as the other examples provided in that exception.  The District was required to provide the draft budget.

Ford v. Northampton Area School District – AP 2009-0123.  Requester asked for a copy of the School District’s 2009-2010 budget which had been presented to the Board in draft form.  The District responded by providing the draft budget with the numbers within the categories redacted on the basis that the draft represented the predecisional deliberations of the District.  The OOR upheld the redaction on the basis that the numbers reflected deliberations, even if the numbers themselves were not deliberations.

Meloy v. Blairsville-Saltsburg School District AP 2009-0094.  Requester asked for the first draft of a Conflict of Interest policy distributed to the Board of School Directors at a public meeting.  The District denied the request and the OOR upheld the denial on the basis that a first draft of a policy was not a public record within the RTKL.

Andrews v. Methacton School District AP 2009-0120.  School District made a decision regarding the size of its professional staff upon reviewing student enrollment projections.  Requester asked for enrollment projections which supported the staffing decision, and the District denied the request on the basis that the documents reflected predecisional deliberation.  The OOR found that the requested documents, which were reports and memoranda prepared by the District’s administrative staff, were not automatically covered by the exemption for predecisional deliberation.  The OOR held that for the exception to apply, the District would need to provide information concerning its deliberation process to justify protecting the documents from disclosure.

REQUESTS REGARDING INVESTIGATIONS/COMPLAINTS

Richter v. Lower Paxton Township – AP 2009-0426.  This appeal involved a request for a copy of a complaint of code violations against property owned by the Requester.  OOR held that the plain language of Section 708 of the RTKL unambiguously exempted complaints submitted to an agency.  The OOR noted that the RTKL does not require an investigation to be a formal proceeding for the exemption to apply.  OOR noted that complaints tend to be investigative by nature, and an investigation by its nature can involve examining, considering, and probing complaints.  Since the facts established that the record requested was a complaint, Section 67.708(b)(17)(i) applied.

M. Meachem v. East Stroudsburg Area School District AP 2009-0241.  Requester sought copies of an investigation report prepared by a District concerning the undervalued sale of District property on ebay.  The OOR upheld the denial on the basis that the requested document fit within the exception contained in the RTKL.

REQUESTS REGARDING TAX AND OTHER PAYMENT HISTORIES

Signature Information Solutions, LLC v. Springfield School District – AP 2009-0435.  Signature Information Solutions requested real estate tax records and payment status on ten (10) different properties within the School District.  It is believed that this request, as well as others submitted by Signature Information Solutions which will be addressed in other appeal summaries, was submitted to circumvent no-lien letter certifications and the associated fees normally imposed for such certifications.  By submitting requests for this information under the RTKL, taxing bodies, such as School Districts, can only charge a maximum of 25 cents per page for providing the requested information.  In this case, the District denied the request on the basis that it was not in possession of the requested records and was not required to create a record.  While the District did not have actual possession of the records requested, the District’s Tax Collector did have the requested records.  OOR held that although the District itself did not have the records, it had the obligation to obtain the records from the Tax Collector.  OOR recognized that local Tax Collectors are not agencies under the Local Tax Collection Law.  However, the tax records maintained by the Tax Collector remain agency records.  OOR had previously held that the requested records were public and required the School District/Municipality to obtain the records from the third party tax collector who had possession of them as required by Section 67.505(d) of the RTKL (see Honaman v. Lower Marion Township, OOR Docket No. AP 2009-0053).  While OOR recognized the heavy burden this would place on School Districts and municipalities struggling with heavy work loads, they held that there was nothing in the RTKL which relieved the School District/municipality from making the records available, even if their retrieval was burdensome.  In another case involving Signature Solutions, the Delaware County Court of Common Pleas ruled against the production of the requested documents in Astin Township v. Signature Solutions, Docket No. 4852 of 2009 of the Delaware County Court of Common Pleas (May 27, 2009).  In Astin Township, the Township claimed that the requested information was not available in one document or printout and it must assemble the information from multiple documents to respond to the request.  The Delaware County Court agreed with the Township that such an assembly amounted to creation of a record and held that the Township was not required to do so.  This demonstrates the importance of raising all grounds for a denial of a request.  Otherwise, the OOR and/or Courts will only decide the claim on the limited arguments raised by the School District/municipality.

Signature Information Solutions, Inc. v. Bradford County Tax Claim Bureau AP 2009-0071.  Requester sought prior year tax information and any penalties and interest applicable to a single property within the County.  The County denied the request on the basis that it was a request for a tax certification, but the OOR disagreed and upheld the request as seeking a public record.

REQUESTS REGARDING W2 INFORMATION

Campbell v. Colonial School District and Montgomery County Intermediate Unit – AP 2009-0350 and AP 2009-0351.  This appeal involves a request for W2s for School District employees in which the District redacted 403(b) contribution information from Box 12 of the W2 Forms.  OOR determined that an employee’s contribution to a non-governmentally administered 403(b) plan qualified as “personal financial information” which is exempt from disclosure.  The only information that may be subject to disclosure is evidence of an employment-related Section 403(b) plan agreement, but not the “personal financial information,” i.e., the dollar amount of the individual employee’s contribution.  However, OOR did require the non-redaction of the identifying code (E) as the code is evidence of an employment-related contract or agreement subject to disclosure under 67.708(b)(6)(ii).  Contributions to life insurance and retirement plans that are not agency administered reveal money management information that is personal and may be redacted.  The OOR rendered no opinion on the disclosure requirements of employer contributions to a 403(b) plan since that was not an issue in this appeal.

Campbell v. Berwick Area School District AP 2009-0212.  Requester asked for home addresses and union dues paid by school employees and shown on W-2 forms.  The School District denied the request regarding union dues on the basis that they represented “voluntary deductions.”  The OOR upheld the request on the basis that the union dues did not represent personal financial information.

REQUESTS REGARDING PAYROLL INFORMATION

Green v. Pocono Mountain School District AP 2009-0103.  Requester asked School District for certified records of a third party contractor employed by the District.  The District redacted personally-identifiable information, including Social Security numbers, home addresses and tax-exempt status.  The OOR upheld the request as it related to home addresses and taxable status, and found that the exceptions in the RTKL did not protect these from disclosure. However, the OOR found that Social Security numbers were protected from disclosure.  This OOR decision, among others, overrules the decision of the Pennsylvania Supreme Court (Sapp Roofing Co., Sheet Metal Workers International, 552 Pa. 105, 713 A.2d 627 (1998)) holding under the old RTKL that such records of contractors were exempt from disclosure.

NO REQUIREMENT TO CREATE A RECORD OR RESPOND TO INQUIRIES

Mauriello v. Lehigh Carbon Community College – AP 2009-0143.  Requester sought records for all employees with salaries of $100,000 or more.  The Community College refused on the basis that it had no record which divided employees into those which earned $100,000 annually and those which didn’t.  The OOR upheld the request and stated that while the Community College wasn’t required to create a record, its existing payroll records permitted it to respond to the request.

REQUESTS REGARDING STUDENT INFORMATION

Hahn v. Methacton School District – AP 2009-153.  Requester asked School District for gifted written reports and gifted screening summaries in order to examine district-wide results of Wechsler Intelligence Scale screenings.  Requester specified that any personally-identifiable information be redacted from the reports and summaries, but the District denied the request on the basis that even with redaction, the documents requested would still impermissibly disclose student information protected by FERPA.  The OOR noted that the question was not addressed directly in the RTKL, and referred to guidance from the US Department of Education regarding FERPA implementation which stated that educational agencies are in the best position to determine the measures necessary to protect student confidentiality and upheld the District’s denial.

Blasi v. Pen Argyl School District – AP 2009-0067.  Requester sought copies of class rosters for a particular teacher’s classes, improvement plans submitted to the District by sports coaches and the names and mailing addresses of families with children in the District.  The District refused to grant the requests, and the OOR upheld the denial of class roster disclosure, as such rosters would contain the names of students.  The OOR also affirmed the denial of the coaches’ plans as they comprised part of the coaches’ performance evaluations.  Finally, the OOR held that even if student names were redacted, the District was still entitled to withhold records of parent names and addresses because they contained information that identified the home addresses of school students.

Knauss v. Unionville-Chadds Ford School District AP 2009-0060.  Requester asked School District for a master schedule of all classes offered.  The District argued that the schedule contained identifiable student information, but the OOR held that with redaction, any information which identified students could be removed from what was otherwise a public record.

REQUESTS REGARDING E-MAIL

Mollick v. Methacton School District AP 2009-0180.  Requester asked School District for thirty-six (36) different categories of e-mails between, from or to Board members.  The District denied the request on the basis that the e-mails did not constitute public records, or that they constituted predecisional deliberations which were exempt from disclosure.  The OOR upheld the request in part on the basis that the District did not satisfactorily establish that the e-mails were part of predecisional deliberations, and noted that the RTKL’s exception does not protect records which are submitted to a quorum for deliberations at a public meeting. 

REQUESTS REGARDING AUDIOTAPES

Meyerson v. Chalfont Borough AP 2009-0052.  Requester asked for audio cassettes of public meetings used for preparation of meeting minutes.  The OOR upheld the request and held that the Borough was required to provide the cassettes.

REQUESTS REGARDING PERSONNEL INFORMATION

Ruth v. Northern York School District AP 2009-0223.  Requester asked for a program of improvement issued to a coach.  The District denied the request and the OOR upheld that denial on the basis that the requested records constituted an exempt performance rating/review or written criticism of an employee.

 REQUESTS REGARDING SOLICITOR INVOICES/COMMUNICATIONS

Hylton v. Pottstown School District AP 2009-0043.  Requester asked for invoices submitted to a District by its Solicitor.  The District provided the invoices, but the descriptions of work performed by the Solicitor were redacted from the invoices.  Under the RTKL, redaction comprises a partial denial of a request.  The OOR found that only information related to individual students or employees may be redacted under FERPA, the RTKL exceptions related to personnel or discipline or any other federal or state statute prohibiting disclosure.

 MISCELLANEOUS REQUESTS

Stanesic v. West Mifflin Borough AP 2009-0085.  Requester sought a written opinion letter referenced during a public council meeting.  The Borough posited that the opinion was not a public record because it represented personal correspondence between the Ethics Commission and a Borough official.  The OOR upheld the request on the basis that the Borough could not assert any applicable exception or privilege which would apply to the correspondence, and thus it was a public record capable of being disclosed.