THE NEW RTKL ON APPEAL COMMONWEALTH COURT CASES OF INTEREST

As we reported in the Winter 2010 edition of Education News, the Commonwealth Court (Court) issued its first substantive decision on the new Right to Know Law (RTKL) on February 5, 2010 in the case of Bowling v. Office of Open Records (OOR).  Since then, while additional appeals have been heard by the Court, only a few impact School Districts’ processing of RTKL requests.

A significant development has occurred in PSEA, et al. v. OOR, et al., the case in which the Commonwealth Court preliminarily enjoined OOR, on July 28, 2009, from ordering the release of employee home addresses based on privacy concerns, which was upheld by the Supreme Court on August 17, 2010.  In an opinion issued on September 24, 2010, the Commonwealth Court dismissed the action on the grounds that the court lacked jurisdiction on the basis that OOR, a quasi-judicial tribunal, lacks any interest in the outcome of its adjudications and is not an appropriate defendant.  With the dismissal of the action, reliance on the underlying July 2009 injunction is not appropriate.  PSEA’s underlying privacy analysis may still be asserted, but until an appeal is filed which addresses the merits of the privacy issues, it is likely that OOR will resume ordering the release of home addresses.

In Moore v. Office of Open Records (Dept. of Corrections), the Court clarified the meaning of Section 705 of the RTKL which provides that “an agency shall not be required to create a record which does not currently exist.”  The Court held that under this provision, whether or not a document existed at some point in time is not the proper standard – the standard is whether the document currently exists and is in possession of the School District at the time of the RTKL request.  If a diligent search fails to locate a record, it is safe to respond that the document “does not currently exist.”

The Court, in a plurality opinion in Department of Conservation and Natural Resources of the Commonwealth of Pennsylvania, et al. v. OOR, reversed three OOR determinations requiring agencies to turn over unredacted copies of private contractors’ certified payroll records which would disclose private employees’ names and home addresses.  Three judges, relying on Sapp Roofing, a longstanding precedential case decided under prior law, held that certified payroll records are financial records which must be disclosed, but that private employees’ salaries are not a matter of public record.  Therefore, it was proper to redact names and addresses of the employees so their personal financial information remained personal.  The concurrence argued that the requested records were not even financial records of the agencies and that the employee’s interest in privacy outweighed disclosure, thereby favoring a constitutional right to privacy of names and home addresses.

Regarding public access to private entity records when the private entity has entered into a contract with a public entity, the Court has favored public access to such records.  In East Stroudsburg University Foundation et al. v. OOR, the Court required disclosure of a private, nonprofit foundation’s records under Section 506(d)(1) of the RTKL.  The Court held that the RTKL is clear that “all contracts that governmental entities enter into with private contractors necessarily carry out a ‘governmental function’ – because the government always acts as the government.”  This broad interpretation was challenged by a concurring judge who asserted that the legislature did not intend to make all records related to government contracts records of the agency.  In SWB Yankees, LLC v. Wintermantel, the Court held that the Multi-Purpose Stadium Authority of Lackawanna County was clearly created for the benefit of the people of the Commonwealth.  The fact that it contracted out the operation of its baseball and other entertainment events of the Authority was of no consequence.  A third party is in the same position as an agency for purposes of the RTKL under §506(d)(1).

Finally, a word of caution was issued by the Court in Aston Township v. Signature Information Solutions.  The Court interpreted Section 903(2) of the RTKL which provides that a denial of an RTKL request must include the “specific reasons for the denial, including a citation of supporting legal authority.”  When the Township attempted to raise an additional basis for denial on appeal, the Court held that the RTKL does not permit a different reason for denial to be raised on appeal.  Otherwise, the requirements of  Section 903(2) “would become a meaningless exercise.”  Therefore, in responding to RTKL requests, take all steps necessary to raise all grounds for denial when responding.

Our office will continue to monitor the Commonwealth Court decisions and provide periodic updates on decisions which impact School District operations.