Yesterday, the Pennsylvania House of Representatives passed House Bill 1876, which would require newspapers to reduce legal advertising rates by 25% and put all legal advertising on the Internet. The Associated Press has written about the bill, but there seems to be some misunderstanding about how legal rates are set and what this bill would accomplish. The bill would immediately save local governments across Pennsylvania millions of dollars, a goal that local government officials and their representatives claim to have. It would also keep legal notices in newspapers -- a fixed, independent, verifiable medium -- and at the same time put them on newspaper Web sites, which are among the most widely read Web sites in their communities and across the Commonwealth.
Yet the bill's detractors continue to make statements that are misguided and in some cases, inaccurate.
Representative John Evans, R-Erie, is quoted in the AP article as saying, "We don't know what the rate was yesterday, we don't know what it was last month, we don't know what it was last year," and "We're talking about discounting a rate that is a mystery." This is not accurate. Every municipality and government unit across the Commonwealth knows exactly what legal advertising rate it is paying. Different newspapers charge different rates, based on their market and circulation numbers. Obviously, it costs more to run a legal advertisement in a major city's daily paper, which may reach hundreds of thousands of people, than it does in a small weekly paper, which may have a circulation in the thousands. This doesn't make the rate a "mystery," it simply means that it varies from community to community and newspaper to newspaper. The rates are not secret. Many newspapers have their legal advertising rates on their printed rate cards. Others will provide the rate over the telephone. The rates themselves are set forth in public records, in the form of invoices, for every government agency that has paid for advertising. The fact is that many newspapers already charge a government advertising rate that is lower than the rate charged to commercial advertisers.
Doug Hill of the County Commissioners Association of Pennsylvania has said that his organization and other local government representatives are against the bill because it would not help them reach "the greatest possible number of people." In fact, the opposite is true. Data shows that web traffic on government Web sites, where government groups want to put legal notices, is a small fraction of the traffic found on many newspaper Web sites. Readership remains strong at newspapers and their Web sites. Just this week, Scarborough Research released a study showing that 74% of adults -- nearly 171 million -- in the United States read a newspaper in print or online during the past week. The numbers are even higher among readers with college degrees. No government Web site can even come close to that – yet the local government groups continue to argue that individual government units should be able to post and control the entire public notice process. That is not reaching “the greatest possible number of people.” Far from it.
House Bill 1876, while certainly not what newspapers want (what business wants to reduce its fee by 25%?), would, in fact, serve the "goals" of local government better than any proposal they have put on the table. It would put public notices on Web sites where people could find them and more people could read them, as opposed to hiding them on 3,000 different government-run Web sites. At the same time, it would maintain them in a fixed, verifiable, archivable, independent medium, where the 30-40% of Pennsylvanians who do not have Internet access could continue to read them. And all at significant cost savings to government.
Wednesday, November 18, 2009
Monday, November 9, 2009
From the Legal Hotline
Q: A local radio station has been reading our newspaper on air as its morning newscast. What can we do about this?
A: Original newspaper content is protected by copyright and the newspaper has the right to pursue an infringement action if the radio station uses its content improperly without permission.
Copyright ownership is generally vested in the author of a creative work. However, if an employee authors a work eligible for copyright and the work is in the scope of his or her employment, his employer (the newspaper) owns the copyright of that work. Copyright ownership can also be transferred from a freelancer to a newspaper through a “work made for hire” agreement.
Copyright law grants the copyright owner the exclusive right to reproduce the work in copies; prepare derivative works based on the copyrighted work; distribute the work to the public; and display the work publicly.
If you believe that someone is improperly using your content, you should inform them in writing and instruct them to stop. This type of notice is commonly referred to as a cease and desist letter. A cease and desist letter can be sent by you or your newspaper’s lawyer. PNA encourages newspapers to consult an attorney before sending a cease and desist letter.
There are several defenses to copyright infringement, including use of a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. If appropriate, these uses may be considered “fair use.” Whether a particular use is a “fair use,” depends upon a number of factors, including how much of the material is used and whether that use affects the value of the original work.
Newspapers should also be aware that some radio stations subscribe to the Associated Press. To the extent that a radio station is properly using news provided by the Associated Press, copyright infringement would not be an issue.
You can learn more about copyright in the PNA Newspaper Handbook, as well as from the U.S. Copyright Office at www.copyright.gov.
As always, this is not intended to be nor should it be construed as legal advice. If you suspect copyright infringement, please contact your private attorney or the PNA Legal Hotline at (717) 703-3080.
A: Original newspaper content is protected by copyright and the newspaper has the right to pursue an infringement action if the radio station uses its content improperly without permission.
Copyright ownership is generally vested in the author of a creative work. However, if an employee authors a work eligible for copyright and the work is in the scope of his or her employment, his employer (the newspaper) owns the copyright of that work. Copyright ownership can also be transferred from a freelancer to a newspaper through a “work made for hire” agreement.
Copyright law grants the copyright owner the exclusive right to reproduce the work in copies; prepare derivative works based on the copyrighted work; distribute the work to the public; and display the work publicly.
If you believe that someone is improperly using your content, you should inform them in writing and instruct them to stop. This type of notice is commonly referred to as a cease and desist letter. A cease and desist letter can be sent by you or your newspaper’s lawyer. PNA encourages newspapers to consult an attorney before sending a cease and desist letter.
There are several defenses to copyright infringement, including use of a copyrighted work for the purposes of criticism, comment, news reporting, teaching, scholarship, or research. If appropriate, these uses may be considered “fair use.” Whether a particular use is a “fair use,” depends upon a number of factors, including how much of the material is used and whether that use affects the value of the original work.
Newspapers should also be aware that some radio stations subscribe to the Associated Press. To the extent that a radio station is properly using news provided by the Associated Press, copyright infringement would not be an issue.
You can learn more about copyright in the PNA Newspaper Handbook, as well as from the U.S. Copyright Office at www.copyright.gov.
As always, this is not intended to be nor should it be construed as legal advice. If you suspect copyright infringement, please contact your private attorney or the PNA Legal Hotline at (717) 703-3080.
Read more!
Friday, October 16, 2009
Jury awards Virginia newspaper publisher $200,000 in damages
A federal jury found that a Virginia School Board violated a newspaper publisher’s constitutional rights when it restricted his access to school grounds, awarding him $200,000 in damages. The school board seems likely to appeal. An earlier decision in the case can be found here: http://www.vawd.uscourts.gov/OPINIONS/JONES/107CV00001.PDF.
Read more!
Thursday, September 10, 2009
Lackawanna County Court upholds Office of Open Records Decision
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.
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.
Read more!
Thursday, August 6, 2009
Judge recommends that $3.5 million verdict against newspaper be vacated
In an August 3, 2009 report, Lehigh County President Judge William H. Platt recommended that the Pennsylvania Supreme Court vacate the verdict in a defamation case involving The Citizens' Voice newspaper. The Judge found, among other things, that the involvement of former Luzerne county judges Michael T. Conahan and Mark A. Ciavarella in the case created the appearance of impropriety. He also recommended a new bench trial.
Conahan and Ciavarella were involved in the defamation case against The Scranton Times at various points during pre-trial proceedings. Ciavarella ultimately presided over the bench trial in 2006 and ruled against the newspaper company, awarding $3.5 million to the plaintiffs. Both judges resigned in 2009 in the wake of a juvenile court scandal, which resulted in the judges pleading guilty to federal charges.
The Scranton Times filed an application for the Exercise of the King’s Bench Power or Extraordinary Jurisdiction which the PA Supreme Court granted in April, 2009. The Court then appointed President Judge Platt to preside over the remand hearing and make recommendations to the court.
After a two-day hearing, Judge Platt found that the conduct and judgment of Conahan and Ciavarella in the Joseph case, along with the relationships each former judge had with individuals connected with that case, created the appearance of impropriety and required that the verdict be vacated.
Read the opinion here: http://www.aopc.org/OpPosting/Supreme/out/19mm2009report.pdf.
The Citizens' Voice story is here: http://www.thetimes-tribune.com/judge_recommends_3_5_m_defamation_verdict_be_vacated.
Conahan and Ciavarella were involved in the defamation case against The Scranton Times at various points during pre-trial proceedings. Ciavarella ultimately presided over the bench trial in 2006 and ruled against the newspaper company, awarding $3.5 million to the plaintiffs. Both judges resigned in 2009 in the wake of a juvenile court scandal, which resulted in the judges pleading guilty to federal charges.
The Scranton Times filed an application for the Exercise of the King’s Bench Power or Extraordinary Jurisdiction which the PA Supreme Court granted in April, 2009. The Court then appointed President Judge Platt to preside over the remand hearing and make recommendations to the court.
After a two-day hearing, Judge Platt found that the conduct and judgment of Conahan and Ciavarella in the Joseph case, along with the relationships each former judge had with individuals connected with that case, created the appearance of impropriety and required that the verdict be vacated.
Read the opinion here: http://www.aopc.org/OpPosting/Supreme/out/19mm2009report.pdf.
The Citizens' Voice story is here: http://www.thetimes-tribune.com/judge_recommends_3_5_m_defamation_verdict_be_vacated.
Read more!
Thursday, July 30, 2009
Supreme Court dismisses open records case more than two years after granting appeal
In a disappointing ruling dated July 22, 2009, the Pennsylvania Supreme Court dismissed an open records appeal as improvidently granted. The parties had been waiting for a decision from the Court since March 5, 2007, the date the Court granted the appeal. Justice Saylor authored a 15-page dissent, joined by Chief Justice Castille.|Schenck v. Township of Center, --- A.2d ----, 2009 WL 2170468 (Pa. Jul 22, 2009) related to access to solicitors' bills under the old Right to Know Law. Beverly Schenck had requested copies of itemized invoices from the township solicitor. Invoices unrelated to litigation matters were provided. With respect to litigation-related invoices, the township provided the records, but redacted all descriptions of the legal services provided.
The question before the Court was whether agencies could do wholesale redaction of these "descriptive" sections of solicitor bills, or whether they had to review entries individually to determine if parts of them could be protected. PNA filed an amicus brief in the case, arguing that although portions of these bills may be protected, the burden must be on the agency to establish that a particular privilege or exemption applied to justify limited redaction. In other words, agencies shouldn't be able to strike out all of the descriptive entries claiming blanket protection.
In 2006, a divided panel of the Commonwealth Court ruled that agencies could engage in this blanket redaction. In 2007, the Supreme Court accepted Schenck's appeal, but over two years later has now dismissed it. The dismissal means that that the lower court decision will stand. In light of the significant revisions to the Right to Know Law in 2008, however, there is some question about the continued viability of the 2006 decision - particularly as it dealt with the "burden of proof" issue.
In a 15-page dissent, Justice Saylor, joined by Chief Justice Castille, argued that the Commonwealth Court's decision should have been reversed. As Justice Saylor explained, "public disclosure laws favor governmental transparency and reflect a belief that non-disclosure undermines the relationship between a government and its citizens." We agree.
The question before the Court was whether agencies could do wholesale redaction of these "descriptive" sections of solicitor bills, or whether they had to review entries individually to determine if parts of them could be protected. PNA filed an amicus brief in the case, arguing that although portions of these bills may be protected, the burden must be on the agency to establish that a particular privilege or exemption applied to justify limited redaction. In other words, agencies shouldn't be able to strike out all of the descriptive entries claiming blanket protection.
In 2006, a divided panel of the Commonwealth Court ruled that agencies could engage in this blanket redaction. In 2007, the Supreme Court accepted Schenck's appeal, but over two years later has now dismissed it. The dismissal means that that the lower court decision will stand. In light of the significant revisions to the Right to Know Law in 2008, however, there is some question about the continued viability of the 2006 decision - particularly as it dealt with the "burden of proof" issue.
In a 15-page dissent, Justice Saylor, joined by Chief Justice Castille, argued that the Commonwealth Court's decision should have been reversed. As Justice Saylor explained, "public disclosure laws favor governmental transparency and reflect a belief that non-disclosure undermines the relationship between a government and its citizens." We agree.
Read more!
Wednesday, July 29, 2009
Commonwealth Court enjoins release of school employees' home addresses
In an order dated July 28, 2009, Commonwealth Court Senior Judge Rochelle S. Friedman granted a preliminary injunction prohibiting the release of home addresses of public school employees. | The Court also ordered the Office of Open Records to notify public school districts of the ruling. The Court's opinion will apparently be posted at a later date. Obviously, this ruling is very significant in terms of the new Right to Know Law. Although the Law exempts from disclosure home addresses of law enforcement, judges, and minors, it does not exempt home addresses generally.
Read more!
Thursday, May 21, 2009
Department of Education Decisions Threaten Public Notice
The Pennsylvania Department of Education has issued two troubling decisions that negatively affect public notice in some communities.
Under the School Code’s Mandate Waiver Program, public schools can request permission to waive certain legal requirements.
On May 1, 2009, the Department of Education granted a waiver to the Upper Moreland Township School District that allows the district to eliminate newspaper advertising for bids and instead advertise on the district’s own website or in shoppers or pennysavers. It is unclear how the public is to know which vehicle the district intends to use with respect to any particular bid.
Under 8-807.1 of the School Code, purchases of furniture, equipment, textbooks, school supplies or other appliances of $10,000 or more must be advertised in two newspapers of general circulation once a week for three weeks. The purpose behind this notice provision is to ensure that as many potential bidders and taxpayers see the notice as possible.
Through the waiver program, however, the Upper Moreland Township School District can now pick and choose how it wants to advertise individual purchases. This is a dangerous practice for a number of reasons. It takes public notices out of newspapers, with no consideration for or concern about measuring the cost to public access and accountability.
Newspapers provide an independent verification that a public notice was made as required by law. They are archived and verifiable. Agency Web sites and shoppers are not. Newspapers are independent of the government agencies that spend taxpayer money. Agency Web sites are not. Newspapers are and have been a trusted source for public notices for many decades. Pennysavers, shoppers, and internet Web sites are not where members of the public look for public notices. Newspapers also put public notices online, at no cost to agencies, at http://www.mypublicnotices.com/.
To those who point to lower circulation numbers at some newspapers as support for getting rid of public notices, the facts simply do not support your argument. The truth is that newspapers, through their print and online versions, are reaching more people than ever with news, sports, public notices and more.
Under current law, it is government’s responsibility to push information out to the public, through publication in a well-known, established source of information. Under this decision, citizens now have to go to their government to find out what government is planning to do (or where they plan to advertise this day).
And this isn’t the only example. The Lampeter-Strasburg School District applied for and was granted a waiver that raises the bidding threshold requirements imposed by section 7-751 of the School Code from $10,000 to $15,200. With the approved waiver, the school district is only required to advertise for bids when construction contracts are anticipated to cost more than $15,200.
As anyone who has followed this issue knows, local government groups, including the School Boards Association, are pushing for a change in state law to get rid of public notices in newspapers. They are using this Mandate Waiver program as an end run around current law in a way that is likely to have a significant, negative effect, on public access to government.
If you're interested: the Mandate Waiver provisions of the School Code can be found at 24 P.S. § 17-1714-B. You can also read the Lampeter–Strasburg and Upper Moreland applications and approvals on the Department of Education website http://www.pde.state.pa.us/k12_initiatives/cwp/view.asp?a=171&q=148179&k12_initiativesPNavCtr=&TNID=10979#10979 .
Under the School Code’s Mandate Waiver Program, public schools can request permission to waive certain legal requirements.
On May 1, 2009, the Department of Education granted a waiver to the Upper Moreland Township School District that allows the district to eliminate newspaper advertising for bids and instead advertise on the district’s own website or in shoppers or pennysavers. It is unclear how the public is to know which vehicle the district intends to use with respect to any particular bid.
Under 8-807.1 of the School Code, purchases of furniture, equipment, textbooks, school supplies or other appliances of $10,000 or more must be advertised in two newspapers of general circulation once a week for three weeks. The purpose behind this notice provision is to ensure that as many potential bidders and taxpayers see the notice as possible.
Through the waiver program, however, the Upper Moreland Township School District can now pick and choose how it wants to advertise individual purchases. This is a dangerous practice for a number of reasons. It takes public notices out of newspapers, with no consideration for or concern about measuring the cost to public access and accountability.
Newspapers provide an independent verification that a public notice was made as required by law. They are archived and verifiable. Agency Web sites and shoppers are not. Newspapers are independent of the government agencies that spend taxpayer money. Agency Web sites are not. Newspapers are and have been a trusted source for public notices for many decades. Pennysavers, shoppers, and internet Web sites are not where members of the public look for public notices. Newspapers also put public notices online, at no cost to agencies, at http://www.mypublicnotices.com/.
To those who point to lower circulation numbers at some newspapers as support for getting rid of public notices, the facts simply do not support your argument. The truth is that newspapers, through their print and online versions, are reaching more people than ever with news, sports, public notices and more.
Under current law, it is government’s responsibility to push information out to the public, through publication in a well-known, established source of information. Under this decision, citizens now have to go to their government to find out what government is planning to do (or where they plan to advertise this day).
And this isn’t the only example. The Lampeter-Strasburg School District applied for and was granted a waiver that raises the bidding threshold requirements imposed by section 7-751 of the School Code from $10,000 to $15,200. With the approved waiver, the school district is only required to advertise for bids when construction contracts are anticipated to cost more than $15,200.
As anyone who has followed this issue knows, local government groups, including the School Boards Association, are pushing for a change in state law to get rid of public notices in newspapers. They are using this Mandate Waiver program as an end run around current law in a way that is likely to have a significant, negative effect, on public access to government.
If you're interested: the Mandate Waiver provisions of the School Code can be found at 24 P.S. § 17-1714-B. You can also read the Lampeter–Strasburg and Upper Moreland applications and approvals on the Department of Education website http://www.pde.state.pa.us/k12_initiatives/cwp/view.asp?a=171&q=148179&k12_initiativesPNavCtr=&TNID=10979#10979 .
Read more!
Thursday, May 14, 2009
Harrisburg police blotter to be online
Harrisburg police have announced plans to put the police blotter on the city's Web site. Read more at http://www.pennlive.com/midstate/index.ssf/2009/05/online_police_blotter_coming_t.html
Read more!
Friday, May 8, 2009
Update on state police policy
The State Police has apparently reversed its policy, issued yesterday, that would remove all accusers' names from police news releases/incident reports. The Associated Press report is here: http://www.philly.com/philly/wires/ap/news/state/pennsylvania/20090508_ap_pastatepolicereversespolicyonvictimsnames.html.
Read more!
Thursday, April 16, 2009
Is this what you call reform?
An editorial from Tim Williams, President of the Pennsylvania Newspaper Association
Reform and transparency have been the topic of much discussion in the last few years. There has been a lot of talk, some action, and now a proposal that would be a huge step in the wrong direction.
I'm talking about a push by local governments to take public notices out of newspapers and put them on government Web sites. They claim that it would be cheaper and more convenient for the public. At best, these claims are misguided. At worst, they are misleading and promote government secrecy and cronyism.
Make no mistake about it. This proposal is not about saving money. It’s about limiting access and hiding government action from the public.
Let’s examine the claims used to promote Senate Bill 419.
First, supporters claim that putting public notices on government Web sites would save money. Not so. Public records show that regardless of a municipality’s size – from the City of Philadelphia to the smallest borough – only about 1/2 of 1% of operating expenditures is spent on public notices – and often less. Even advocates of the bill admit that it won’t solve a single fiscal problem.
And don’t forget the cost of creating the government Web sites – which must be secure, archivable, and current. A Department of State Web database site cost over $600,000 initially, with an annual cost of about $60,000. And that’s only one Web site. This bill would invite every local government to create its own.
Of course, those figures don’t even begin to calculate the negative cost to the public – of not having an independent, verifiable repository for public notices. What is the cost of not knowing that your school board is about to raise your taxes, because the meeting notice was hidden on its Web site? What about not getting notice that your neighbor wants to build a garage on the property line you share? Don’t you want to know that a developer has applied to build a new strip mall on the field behind your home?
Those pushing this bill also claim that it will be “easier” for the public to find notices on government Web sites. Again, not true. First, the bill does not establish any standards for how or where these notices must be placed. As a result, the 4,000+ local governments in Pennsylvania would likely put notices on their individual sites. Good luck finding them there, if you even know where to look.
Do the bill’s supporters know that web traffic statistics show that very few people go to government Web sites? If this bill becomes law, public notices will be effectively hidden from public view and could be manipulated to benefit “friendly” contractors or developers. No reform there.
Even more significant, Census figures show that many Pennsylvanians – up to 30% - still do not have Internet access. Those people will be completely cut out of the process. Who are our elected officials serving with this bill? Certainly not those voters.
Finally, newspapers already post notices on the Internet, at no cost to government or the public. In 1999, Pennsylvania newspapers created www.MyPublicNotices.com, a robust,searchable, database of public notices published by newspapers across the state, uploaded daily.
Public notices are important. They are part of the three-legged stool that protects the public’s right to participate in government – including public records, open meetings, and public notices. Allowing governments to control their own Internet notices would eliminate independent, verifiable notices and would be tantamount to the fox building the henhouse and deciding how strong it needs to be—or not. That’s not our idea of reform.
Do newspapers benefit from public notices? Of course. But we all benefit when we know what our government is up to. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, studying public records, covering local meetings, and publishing public notices.
Public notices must remain public. Please write, telephone, or e-mail your Senators today and urge them to vote no on Senate Bill 419.
Reform and transparency have been the topic of much discussion in the last few years. There has been a lot of talk, some action, and now a proposal that would be a huge step in the wrong direction.
I'm talking about a push by local governments to take public notices out of newspapers and put them on government Web sites. They claim that it would be cheaper and more convenient for the public. At best, these claims are misguided. At worst, they are misleading and promote government secrecy and cronyism.
Make no mistake about it. This proposal is not about saving money. It’s about limiting access and hiding government action from the public.
Let’s examine the claims used to promote Senate Bill 419.
First, supporters claim that putting public notices on government Web sites would save money. Not so. Public records show that regardless of a municipality’s size – from the City of Philadelphia to the smallest borough – only about 1/2 of 1% of operating expenditures is spent on public notices – and often less. Even advocates of the bill admit that it won’t solve a single fiscal problem.
And don’t forget the cost of creating the government Web sites – which must be secure, archivable, and current. A Department of State Web database site cost over $600,000 initially, with an annual cost of about $60,000. And that’s only one Web site. This bill would invite every local government to create its own.
Of course, those figures don’t even begin to calculate the negative cost to the public – of not having an independent, verifiable repository for public notices. What is the cost of not knowing that your school board is about to raise your taxes, because the meeting notice was hidden on its Web site? What about not getting notice that your neighbor wants to build a garage on the property line you share? Don’t you want to know that a developer has applied to build a new strip mall on the field behind your home?
Those pushing this bill also claim that it will be “easier” for the public to find notices on government Web sites. Again, not true. First, the bill does not establish any standards for how or where these notices must be placed. As a result, the 4,000+ local governments in Pennsylvania would likely put notices on their individual sites. Good luck finding them there, if you even know where to look.
Do the bill’s supporters know that web traffic statistics show that very few people go to government Web sites? If this bill becomes law, public notices will be effectively hidden from public view and could be manipulated to benefit “friendly” contractors or developers. No reform there.
Even more significant, Census figures show that many Pennsylvanians – up to 30% - still do not have Internet access. Those people will be completely cut out of the process. Who are our elected officials serving with this bill? Certainly not those voters.
Finally, newspapers already post notices on the Internet, at no cost to government or the public. In 1999, Pennsylvania newspapers created www.MyPublicNotices.com, a robust,searchable, database of public notices published by newspapers across the state, uploaded daily.
Public notices are important. They are part of the three-legged stool that protects the public’s right to participate in government – including public records, open meetings, and public notices. Allowing governments to control their own Internet notices would eliminate independent, verifiable notices and would be tantamount to the fox building the henhouse and deciding how strong it needs to be—or not. That’s not our idea of reform.
Do newspapers benefit from public notices? Of course. But we all benefit when we know what our government is up to. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, studying public records, covering local meetings, and publishing public notices.
Public notices must remain public. Please write, telephone, or e-mail your Senators today and urge them to vote no on Senate Bill 419.
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Tuesday, April 7, 2009
"Draft" policy not a public record
In a disappointing decision, on March 23, 2009, the Office of Open Records found that a draft policy that was distributed to a school board for deliberation at a public meeting - and approved at that meeting - was not a public record. See Meloy v. Blairsville-Saltsburg School District, AP 2009-0094. In that case, Dr. Meloy requested the version of Policy 010: Conflict of Interest/Anti-Influence that was distributed to all nine Board members at a regular,open meeting on February 4, 2009. Copies of the "draft" policy were not provided to the public at the meeting, however, the Board discussed the policy and approved it at that meeting.
The new Right to Know Law makes it clear that records that are presented to a quorum of a Board for public deliberation are public records, unless they are otherwise exempt under the Right to Know Law (section 708(b)(10)). We interpret this to mean that most records in a board packet become public records at the time that they are distributed to a quorum of the board (assuming that they are intended for public discussion). There is, in section 708(b)(9) of the law, an exemption for "drafts," and the Office of Open Records found that this policy was exempt as a draft.
The problem with interpreting "draft" this broadly, however, is that it virtually eliminates the provision in (b)(10) that makes board packets presumptively public. Isn't just about everything in a board packet subject to being called a draft?
The intent behind the "board packet" provision in (b)(10) is to allow the public to follow along with board discussions about issues that affect them, by having access to the documents that are being discussed. In our opinion, the only way to give meaning to both (b)(9) and (b)(10) is to interpret (b)(9) to mean internal, working drafts. Once a document is presented for public deliberation under the Sunshine Act, the public has the right to review and understand it. Access also ensures that interested members of the public have a "reasonable opportunity to comment" on matters that are before a board, as required under the Sunshine Act. In this case, the "draft" policy was presented to the board, discussed at a public meeting, and approved, without any opportunity for the public to review it.
Next post, we intend to review some of the OOR's decisions that are pro-open government - and there are many.
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The new Right to Know Law makes it clear that records that are presented to a quorum of a Board for public deliberation are public records, unless they are otherwise exempt under the Right to Know Law (section 708(b)(10)). We interpret this to mean that most records in a board packet become public records at the time that they are distributed to a quorum of the board (assuming that they are intended for public discussion). There is, in section 708(b)(9) of the law, an exemption for "drafts," and the Office of Open Records found that this policy was exempt as a draft.
The problem with interpreting "draft" this broadly, however, is that it virtually eliminates the provision in (b)(10) that makes board packets presumptively public. Isn't just about everything in a board packet subject to being called a draft?
The intent behind the "board packet" provision in (b)(10) is to allow the public to follow along with board discussions about issues that affect them, by having access to the documents that are being discussed. In our opinion, the only way to give meaning to both (b)(9) and (b)(10) is to interpret (b)(9) to mean internal, working drafts. Once a document is presented for public deliberation under the Sunshine Act, the public has the right to review and understand it. Access also ensures that interested members of the public have a "reasonable opportunity to comment" on matters that are before a board, as required under the Sunshine Act. In this case, the "draft" policy was presented to the board, discussed at a public meeting, and approved, without any opportunity for the public to review it.
Next post, we intend to review some of the OOR's decisions that are pro-open government - and there are many.
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Read more!
Wednesday, April 1, 2009
Office of Open Records Issues Damaging Decision
In Ford v. Northampton Area School District, AP 2009-0123, the Office of Open Records (OOR) has dealt a blow to open government, apparently finding that a budget discussion among a quorum of a school board was not "deliberation" for Right to Know Law purposes because it was, in the words of the OOR, an "informal" discussion. If this decision stands, it could have terrible repercussions for the public's right to know.
In Ford v. Northampton Area School District, AP 2009-0123, William Ford, a reporter for The Morning Call (Allentown) requested copies of a budget proposal that the Northampton School Board had discussed at a public meeting. The Board provided the draft budget, but redacted dollar figures from the document. Ford argued that the entire budget proposal was a public record under the new Right to Know Law, and we agree.
The School Board argued that exemption 708(b)(10) of the Right to Know Law allowed it to redact the budget figures. That section allows agencies to withhold certain internal, predecisional, deliberative documents from the public. It provides, however, that the exemption does not apply to documents presented to a quorum of an agency for deliberation at a public meeting. In other words, documents that are in a school board's "board packet" become presumptively public when they are presented to a quorum of the school board for the purpose of public discussion. There are limited exceptions to this rule, but none are relevant here.
The OOR agreed that the Right to Know law does not protect a record that is submitted to a quorum for deliberations at a public meeting. It found, however, that the draft budget was not presented to a quorum for "deliberation." According to the OOR, the budget discussion was informational and therefore the School District could redact the budget figures. In reaching this conclusion, it emphasized that the board did not make any decisions regarding the budget at the meeting in question.
This analysis is not only incorrect as a matter of law, it is damaging to the public's right to know - and threatens to set us back over 20 years, to a time when the Sunshine Act allowed agencies to hold many discussions behind closed doors.
It's worth taking a look at the history of the Sunshine Act. As originally adopted, Pennsylvania's Sunshine Act required government agencies to hold open meetings only when they were voting or taking official action. Not surprisingly, this meant that many agencies held their meaningful discussions and debates behind closed doors, only letting the public in when it was time for the final vote. As a result, the public knew "what" the agency had decided, but nothing about "why" a particular decision was reached.
In 1987, the law was amended to rectify this. As a result, today's Sunshine Act not only requires agencies to take all official action in public, it also requires them to deliberate most matters in public (there are limited exceptions for personnel, litigation, and certain other topics). "Deliberation" is defined as "the discussion of agency business held for the purpose of making a decision."
Since the 1987 amendments, there has been much debate and discussion about what constitutes "deliberation," and the Pennsylvania Courts have weighed in on a number of occasions. One thing is clear, though, that a decision doesn't have to be imminent for an agency discussion to constitute "deliberation." See Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth. 1989), where the Court found that a private conference among three members of a township board of supervisors concerning an amendment to a zoning ordinance was "deliberation" of agency business, even though no official action was expected to be taken.
Agencies sometimes point to language in court decisions to support their argument that board members may informally discuss matters without violating the Sunshine Act. See, e.g., Conners v. West Greene School Dist., 569 A.2d 978 (Pa. Cmwlth. 1989), appeal denied, 581 A.2d 574 (Pa. 1990)(Reference in newspaper that several board members apparently discussed a budget issue during a meeting recess not sufficient to find a Sunshine Act violation). It is important to understand these cases in context, however. In Conners, for example, there was no actual evidence that budget issues were discussed during the recess. Just as significantly, there was no allegation or evidence that a quorum of the board was involved in the alleged discussions.
The Sunshine Act requires agencies to deliberate most issues at an open, advertised meeting. The "Board packet" provision in the Right to Know Law was intended to allow the public to "follow along" with these public discussions, by allowing interested citizens access to records that are being discussed by a board at an open meeting. Having access to records, as well as meetings, is the only way for community members to understand and participate in their government.
In Ford, there is no dispute that a quorum was present, that the budget proposal had been presented to a quorum, and that the proposal was discussed at a public meeting subject to the Sunshine Act. If the OOR intends to redefine "deliberation" to exclude budget discussions that occur prior to a final budget vote, we should all be very concerned. For that "definition," if adopted by local government, could mean that none of the budget discussions (until the final vote) have to occur in public. We've already been down that road. Let's not head that way again.
We recognize that the OOR does not have jurisdiction over Sunshine Act disputes, but we urge it to reconsider its definition of "deliberation" in the Right to Know context, and to protect and preserve the public's right to know.
In Ford v. Northampton Area School District, AP 2009-0123, William Ford, a reporter for The Morning Call (Allentown) requested copies of a budget proposal that the Northampton School Board had discussed at a public meeting. The Board provided the draft budget, but redacted dollar figures from the document. Ford argued that the entire budget proposal was a public record under the new Right to Know Law, and we agree.
The School Board argued that exemption 708(b)(10) of the Right to Know Law allowed it to redact the budget figures. That section allows agencies to withhold certain internal, predecisional, deliberative documents from the public. It provides, however, that the exemption does not apply to documents presented to a quorum of an agency for deliberation at a public meeting. In other words, documents that are in a school board's "board packet" become presumptively public when they are presented to a quorum of the school board for the purpose of public discussion. There are limited exceptions to this rule, but none are relevant here.
The OOR agreed that the Right to Know law does not protect a record that is submitted to a quorum for deliberations at a public meeting. It found, however, that the draft budget was not presented to a quorum for "deliberation." According to the OOR, the budget discussion was informational and therefore the School District could redact the budget figures. In reaching this conclusion, it emphasized that the board did not make any decisions regarding the budget at the meeting in question.
This analysis is not only incorrect as a matter of law, it is damaging to the public's right to know - and threatens to set us back over 20 years, to a time when the Sunshine Act allowed agencies to hold many discussions behind closed doors.
It's worth taking a look at the history of the Sunshine Act. As originally adopted, Pennsylvania's Sunshine Act required government agencies to hold open meetings only when they were voting or taking official action. Not surprisingly, this meant that many agencies held their meaningful discussions and debates behind closed doors, only letting the public in when it was time for the final vote. As a result, the public knew "what" the agency had decided, but nothing about "why" a particular decision was reached.
In 1987, the law was amended to rectify this. As a result, today's Sunshine Act not only requires agencies to take all official action in public, it also requires them to deliberate most matters in public (there are limited exceptions for personnel, litigation, and certain other topics). "Deliberation" is defined as "the discussion of agency business held for the purpose of making a decision."
Since the 1987 amendments, there has been much debate and discussion about what constitutes "deliberation," and the Pennsylvania Courts have weighed in on a number of occasions. One thing is clear, though, that a decision doesn't have to be imminent for an agency discussion to constitute "deliberation." See Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth. 1989), where the Court found that a private conference among three members of a township board of supervisors concerning an amendment to a zoning ordinance was "deliberation" of agency business, even though no official action was expected to be taken.
Agencies sometimes point to language in court decisions to support their argument that board members may informally discuss matters without violating the Sunshine Act. See, e.g., Conners v. West Greene School Dist., 569 A.2d 978 (Pa. Cmwlth. 1989), appeal denied, 581 A.2d 574 (Pa. 1990)(Reference in newspaper that several board members apparently discussed a budget issue during a meeting recess not sufficient to find a Sunshine Act violation). It is important to understand these cases in context, however. In Conners, for example, there was no actual evidence that budget issues were discussed during the recess. Just as significantly, there was no allegation or evidence that a quorum of the board was involved in the alleged discussions.
The Sunshine Act requires agencies to deliberate most issues at an open, advertised meeting. The "Board packet" provision in the Right to Know Law was intended to allow the public to "follow along" with these public discussions, by allowing interested citizens access to records that are being discussed by a board at an open meeting. Having access to records, as well as meetings, is the only way for community members to understand and participate in their government.
In Ford, there is no dispute that a quorum was present, that the budget proposal had been presented to a quorum, and that the proposal was discussed at a public meeting subject to the Sunshine Act. If the OOR intends to redefine "deliberation" to exclude budget discussions that occur prior to a final budget vote, we should all be very concerned. For that "definition," if adopted by local government, could mean that none of the budget discussions (until the final vote) have to occur in public. We've already been down that road. Let's not head that way again.
We recognize that the OOR does not have jurisdiction over Sunshine Act disputes, but we urge it to reconsider its definition of "deliberation" in the Right to Know context, and to protect and preserve the public's right to know.
Read more!
Thursday, March 26, 2009
Update on SB 419 - bill that would take public notices out of newspapers and put them on the Internet voted out of committee
The Senate Local Government Committee voted SB419 out of committee, with no negative votes, on March 25, 2009. Several senators, including Senator Mike Brubaker (R., Lancaster), expressed concerns about moving public notices to the Internet. Senator Jim Ferlo (D., Allegheny) added that the bill could threaten "a major component of our democracy.” Unfortunately, all members of the Committee voted in favor of the bill. If standard procedure is followed, the bill will go to the Appropriations Committee next.
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Monday, March 23, 2009
Public Notices belong in newspapers
This Wednesday, March 25, 2009, the Senate Local Government Committee is set to consider SB419, which would remove public notice advertising from newspapers and allow government agencies to put notices on government websites. Here is why we believe that is a terrible idea.
Consider the following:
· The bill would undermine transparency in government. Under current law, public notices are required for many projects undertaken by both private and public entities. The public notice process is critical, as it informs members of the public what is happening in their community, gives notice of actions that government representatives are considering, and allows citizens to participate. Newspapers provide an independent, third-party verification that notices were published in accordance with the law. Allowing government agencies to control and post Internet notices would eliminate this independent verification and would expand government in a costly and inefficient manner. Government-controlled notice programs simply wouldn’t accomplish the same thing as printed newspaper notices. They are not independent of the political forces that run them. They are not easily archivable or verifiable. Interested parties use newspaper publication and affidavits to participate in government and to verify that proper notice was (or was not) published. SB419 would create instability and confusion, and would interfere with this public participation.
· Costs of public notice advertising are relatively small. Local government associations maintain that the cost of public notices is an unaffordable, unfunded mandate. In fact, a PNA search of public records, carried out last year and again in January, reveals that those expenditures actually comprise less than half of one-percent of their operating expenditures, regardless of the size of the municipality.
· The Internet cannot replace printed notices, due to unpredictability, impermanence, and a lack of access for many. Internet websites are vulnerable to manipulation, loss of content and technological change. They cannot easily provide a reliable, enduring record. U.S. Census Bureau studies showed that in 2007, 30% of Pennsylvania residents lacked internet access. That figure was even higher for the elderly, for low-income residents, and for those with less education: these are the people who would be disenfranchised by internet “advertising.” Similarly, the Census Bureau indicated that 40% of the residents in Pennsylvania’s major urban centers lack internet access.
· Placing a notice on a government-run website is tantamount to shielding it from public view, as web traffic to local government websites is very low. Web traffic calculator websites confirm that the number of persons viewing newspaper websites dwarfs many municipal websites by at least ten times.
· There would be significant costs to establish and run the proposed Internet-based program. Ramping up agency websites would cost tens of thousands, or more, in development, maintenance, and security, far beyond the current amounts paid. The costs would dwarf the figures agencies now report as internet expenditures. Furthermore, an effort to build robust, searchable websites to provide web-based notice would result in significant new expenditures, which state government would likely be asked to fund.
· Finally, newspapers are already publishing Internet notices. Pennsylvania newspapers have been uploading public notices onto the Internet, at www.MyPublicNotices.com, since 1999.
Are newspapers a business? Yes. Do they receive money for publishing public notices? Of course. But the benefit of having an independent, community-based repository of meeting notices, zoning changes, and lists of unclaimed property (among others) cannot be ignored. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, fighting for public records, covering local meetings and court proceedings, and by publishing public notices in their pages. Public notices belong in newspapers.
Consider the following:
· The bill would undermine transparency in government. Under current law, public notices are required for many projects undertaken by both private and public entities. The public notice process is critical, as it informs members of the public what is happening in their community, gives notice of actions that government representatives are considering, and allows citizens to participate. Newspapers provide an independent, third-party verification that notices were published in accordance with the law. Allowing government agencies to control and post Internet notices would eliminate this independent verification and would expand government in a costly and inefficient manner. Government-controlled notice programs simply wouldn’t accomplish the same thing as printed newspaper notices. They are not independent of the political forces that run them. They are not easily archivable or verifiable. Interested parties use newspaper publication and affidavits to participate in government and to verify that proper notice was (or was not) published. SB419 would create instability and confusion, and would interfere with this public participation.
· Costs of public notice advertising are relatively small. Local government associations maintain that the cost of public notices is an unaffordable, unfunded mandate. In fact, a PNA search of public records, carried out last year and again in January, reveals that those expenditures actually comprise less than half of one-percent of their operating expenditures, regardless of the size of the municipality.
· The Internet cannot replace printed notices, due to unpredictability, impermanence, and a lack of access for many. Internet websites are vulnerable to manipulation, loss of content and technological change. They cannot easily provide a reliable, enduring record. U.S. Census Bureau studies showed that in 2007, 30% of Pennsylvania residents lacked internet access. That figure was even higher for the elderly, for low-income residents, and for those with less education: these are the people who would be disenfranchised by internet “advertising.” Similarly, the Census Bureau indicated that 40% of the residents in Pennsylvania’s major urban centers lack internet access.
· Placing a notice on a government-run website is tantamount to shielding it from public view, as web traffic to local government websites is very low. Web traffic calculator websites confirm that the number of persons viewing newspaper websites dwarfs many municipal websites by at least ten times.
· There would be significant costs to establish and run the proposed Internet-based program. Ramping up agency websites would cost tens of thousands, or more, in development, maintenance, and security, far beyond the current amounts paid. The costs would dwarf the figures agencies now report as internet expenditures. Furthermore, an effort to build robust, searchable websites to provide web-based notice would result in significant new expenditures, which state government would likely be asked to fund.
· Finally, newspapers are already publishing Internet notices. Pennsylvania newspapers have been uploading public notices onto the Internet, at www.MyPublicNotices.com, since 1999.
Are newspapers a business? Yes. Do they receive money for publishing public notices? Of course. But the benefit of having an independent, community-based repository of meeting notices, zoning changes, and lists of unclaimed property (among others) cannot be ignored. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, fighting for public records, covering local meetings and court proceedings, and by publishing public notices in their pages. Public notices belong in newspapers.
Read more!
Friday, March 20, 2009
Using "March Madness" or other NCAA Trademarks in Advertising
The annual NCAA College Basketball Tournament is upon us, and with it comes advertiser requests to use "March Madness" or other NCAA trademarks. The term “March Madness” is a federally registered trademark and any unauthorized use could result in legal action.
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. Trademark law provides legal remedies for unauthorized use of a trademark. The NCAA has actively pursued unauthorized trademark use and has sent cease and desist letters to advertisers for such use.
In addition to “March Madness,” the NCAA owns the trademark for “Elite Eight” and “Final Four,” and most colleges and universities own the trademarks to their team names and logos. Advertisers wanting to use the term “March Madness” or any other trademark must have prior authorization from the trademark holder or they (and the newspaper) could be subject to legal action.
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. Trademark law provides legal remedies for unauthorized use of a trademark. The NCAA has actively pursued unauthorized trademark use and has sent cease and desist letters to advertisers for such use.
In addition to “March Madness,” the NCAA owns the trademark for “Elite Eight” and “Final Four,” and most colleges and universities own the trademarks to their team names and logos. Advertisers wanting to use the term “March Madness” or any other trademark must have prior authorization from the trademark holder or they (and the newspaper) could be subject to legal action.
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Tuesday, March 17, 2009
Pennsylvania's Sunshine Act
Speaking of Sunshine Week, Michael Berry, a lawyer at Levine, Sullivan, Koch & Schulz, wrote a column that ran in today's Philadelphia Inquirer on Sunshine Act concerns in the Philadelphia area. http://www.philly.com/inquirer/opinion/41358137.html
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Sunshine Week
March 15-21, 2009 is Sunshine Week, which is a national initiative "to open a dialogue about the importance of open government and freedom of information." See http://www.sunshineweek.org/.
Sunshine Week is a project of the American Society of Newspaper Editors (ASNE), funded through a grant from the John S. and James L. Knight Foundation.
The Sunshine Week Website includes a wide range of resources promoting open government, including public service ads, Logos, and a number of interesting columns from open government advocates, including Sen. Patrick Leahy (D-Vt.), Robert Freeman, and Jane E. Kirtley.
It also has a column by Terry Mutchler, Executive Director of Pennsylvania's brand new Office of Open Records. Check it out at: http://www.sunshineweek.org/sunshineweek/terry_mutchler_09
Sunshine Week is a project of the American Society of Newspaper Editors (ASNE), funded through a grant from the John S. and James L. Knight Foundation.
The Sunshine Week Website includes a wide range of resources promoting open government, including public service ads, Logos, and a number of interesting columns from open government advocates, including Sen. Patrick Leahy (D-Vt.), Robert Freeman, and Jane E. Kirtley.
It also has a column by Terry Mutchler, Executive Director of Pennsylvania's brand new Office of Open Records. Check it out at: http://www.sunshineweek.org/sunshineweek/terry_mutchler_09
Read more!
Monday, March 16, 2009
4th Circuit panel rules that cursing about supervisor not protected by NLRA
In a March 13, 2009 decision, the 4th Circuit Court of Appeals ruled that the National Labor Relations Act, 29 U.S.C. 151 et seq. ("NLRA"), did not protect an employee's use of profanity regarding his employer. http://pacer.ca4.uscourts.gov/opinion.pdf/081153.P.pdf
In that case, a pressman at The Tampa Tribune was terminated after he complained, using profanity, about a Tribune vice-president. The vice-president had sent a series of letters to the pressroom workers, describing the status of the collective bargaining negotiations from the management perspective. Not suprisingly, a number of pressmen objected to the letters.
The pressman at issue complained to two supervisors, during a shift, that he was "stressed out" about the latest letter, and that he hoped that "***** idiot doesn't send me another letter...." The conversation took place in an office away from the pressroom floor, and involved the employee and the two supervisors. The employee admitted that he hadn't read the letter, and did not dispute that the letter was legal and accurate.
He was later terminated for violation of Pressroom Office Rule 9, which prohibited, among other things, the use of "[t]hreatening, abusive, or harassing language...disorderly conduct...and all disturbances interfering with employees at work anywhere in the building."
The employee filed charges against the company, which were dismissed by the Administrative Law Judge (ALJ). On appeal, the National Labor Relations Board (NLRB) reversed the ruling regarding the termination, finding that the dismissal violated the NLRA.
The Tribune appealed, and the U.S. Court of Appeals for the Fourth Circuit found for the employer, ruling that there was no protection for the employee's profane remark regarding his employer, which was directed to his supervisors, during work hours, in the work place, in a conversation initiated by him, and regarding an accurate and legal letter he had never read. The Court also emphasized that the comment was both physically and temporally removed from the ongoing collective barganing negotiations.
Judge King filed a dissenting opinion.
The Zinser Law Firm represented Media General Operations Inc., d/b/a The Tampa Tribune.
In that case, a pressman at The Tampa Tribune was terminated after he complained, using profanity, about a Tribune vice-president. The vice-president had sent a series of letters to the pressroom workers, describing the status of the collective bargaining negotiations from the management perspective. Not suprisingly, a number of pressmen objected to the letters.
The pressman at issue complained to two supervisors, during a shift, that he was "stressed out" about the latest letter, and that he hoped that "***** idiot doesn't send me another letter...." The conversation took place in an office away from the pressroom floor, and involved the employee and the two supervisors. The employee admitted that he hadn't read the letter, and did not dispute that the letter was legal and accurate.
He was later terminated for violation of Pressroom Office Rule 9, which prohibited, among other things, the use of "[t]hreatening, abusive, or harassing language...disorderly conduct...and all disturbances interfering with employees at work anywhere in the building."
The employee filed charges against the company, which were dismissed by the Administrative Law Judge (ALJ). On appeal, the National Labor Relations Board (NLRB) reversed the ruling regarding the termination, finding that the dismissal violated the NLRA.
The Tribune appealed, and the U.S. Court of Appeals for the Fourth Circuit found for the employer, ruling that there was no protection for the employee's profane remark regarding his employer, which was directed to his supervisors, during work hours, in the work place, in a conversation initiated by him, and regarding an accurate and legal letter he had never read. The Court also emphasized that the comment was both physically and temporally removed from the ongoing collective barganing negotiations.
Judge King filed a dissenting opinion.
The Zinser Law Firm represented Media General Operations Inc., d/b/a The Tampa Tribune.
Read more!
Thursday, March 12, 2009
Police Incident Reports
One of the most frequent questions to our legal hotline is, "What records should I be able to get from the state or local police?" It is so common, in fact, that we regularly run it as a Q&A in the PNA's weekly newsletter, Headlines & Deadlines, http://www.headlinesanddeadlines.org/. It also shows up in multiple forms in our "From the Hotline" archive, http://www.headlinesanddeadlines.org/Hotline/FAQ_archive.html.
The short answer is that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101, et seq., police blotters, press releases and criminal dockets are public records. Additionally, Pennsylvania courts have determined that police incident reports are public records. See Tapco, Inc . v. Township of Neville, 695 A.2d 460 ( Pa. Cmwlth. 1997). In other words, basic information, such as names of those involved in an incident, a brief description of the incident, and any charges filed, are public. In contrast, more detailed police investigative records are generally not public.
We are very interested in an appeal currently pending before the Pennsylvania Office of Open Records, relating to access to police information. Briefly, the Potter Leader-Enterprise in Coudersport, Pa, requested a police incident report relating to an altercation. Both the accused and the alleged victim were adults (66 and 41, respectively), and according to the press release, a charge of harassment was filed against the accused. Obviously, criminal charges are a matter of public record. The press release issued by the state police did not identify the alleged victim, so the newspaper asked for the complete incident report relating to the incident. The request was denied, and the newspaper appealed.
We expect a ruling from the Office of Open Records any day now and will update the Blog when it is posted. We recognize that some have strong views about disclosing the identity of victims, and many newspapers do not publish names of minor victims or victims of certain types of crimes. We agree with these policies.
But should all victim identities be shielded from public view? We don’t think so.
Our entire criminal justice system is founded on principles of openness and fairness. Access to public records serves the public in many ways, including allowing people to understand what is happening in their communities. Once charges are filed, the identities of those involved are a matter of public record. An open criminal justice system promotes public confidence that proceedings and investigations are being conducted fairly. As explained by the courts, it also discourages perjury, misconduct, or decisions based on secret bias.
We are looking forward to seeing the decision.
The short answer is that under the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101, et seq., police blotters, press releases and criminal dockets are public records. Additionally, Pennsylvania courts have determined that police incident reports are public records. See Tapco, Inc . v. Township of Neville, 695 A.2d 460 ( Pa. Cmwlth. 1997). In other words, basic information, such as names of those involved in an incident, a brief description of the incident, and any charges filed, are public. In contrast, more detailed police investigative records are generally not public.
We are very interested in an appeal currently pending before the Pennsylvania Office of Open Records, relating to access to police information. Briefly, the Potter Leader-Enterprise in Coudersport, Pa, requested a police incident report relating to an altercation. Both the accused and the alleged victim were adults (66 and 41, respectively), and according to the press release, a charge of harassment was filed against the accused. Obviously, criminal charges are a matter of public record. The press release issued by the state police did not identify the alleged victim, so the newspaper asked for the complete incident report relating to the incident. The request was denied, and the newspaper appealed.
We expect a ruling from the Office of Open Records any day now and will update the Blog when it is posted. We recognize that some have strong views about disclosing the identity of victims, and many newspapers do not publish names of minor victims or victims of certain types of crimes. We agree with these policies.
But should all victim identities be shielded from public view? We don’t think so.
Our entire criminal justice system is founded on principles of openness and fairness. Access to public records serves the public in many ways, including allowing people to understand what is happening in their communities. Once charges are filed, the identities of those involved are a matter of public record. An open criminal justice system promotes public confidence that proceedings and investigations are being conducted fairly. As explained by the courts, it also discourages perjury, misconduct, or decisions based on secret bias.
We are looking forward to seeing the decision.
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Wednesday, March 11, 2009
Questions for the Office of Open Records
Yesterday, we wrote about some of the early decisions of the Office of Open Records (OOR). We are continuing that discussion today, raising some of our questions and concerns about the first group of decisions.
First, we believe that the OOR should define what constitutes an “investigative record.” Although the OOR denied access to “investigative records,” in two of its early decisions (where requesters actually identified the documents requested as investigative records), the OOR did not provide guidance for determining what actually constitutes an “investigative record.” This is a critical issue that must be addressed.
The law exempts many “investigative records” from public view. But what is investigative? Records that merely reflect an agency’s everyday, administrative functions cannot be deemed “investigative.” Nor should records that are shared externally with third parties. To hold otherwise, would allow the exception to swallow the rule. For example, restaurant inspections and building inspections are not “investigative.” Nor are parking citations. They are documents that reflect an agency’s routine, administrative functions and are distributed outside of the agencies to the respective restaurant, building, and automobile owners.
In our view, in order to qualify as an “investigative record,” a record must involve some in-depth study by an agency, such as an ongoing police investigation, and should include internal agency documents only. We hope that the OOR will develop a thoughtful definition of “investigative,” in a way that protects actual agency investigations, but also gives meaning to the presumption of openness.
Second, we believe that the OOR should address which board documents are public. What is a “board packet,” and which board documents are public? This is another issue that the OOR has not yet addressed head-on, but is one that both agencies and requesters are grappling with across the Commonwealth.
Under the Right to Know Law, internal, predecisional, deliberative documents are generally not public, until they are presented to a quorum of a board for public discussion. See 65 Pa.C.S. 67.708(b)(10). In other words, “board packets,” or at least portions of them, become public when they are presented to a quorum of a board.
In Wallace v. School District of Lancaster, AP 2009-0010, the OOR addressed the issue of whether contracts and agreements presented to and discussed by a Board subcommittee were public records. It found that they were, primarily because the school district did not meet its burden of proving that cited exemption applied.
In our view, the OOR missed an opportunity in the Wallace decision, to flesh out a critical part of the law, the one that makes most documents public when they are presented to a quorum of an agency for discussion at a public meeting.
As stated above, section 708(b)(10) generally protects internal, predecisional documents of agencies. It provides, however, that “a record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with [the Sunshine Act] shall be a public record.” This means that documents presented to a quorum of a board for discussion at a public meeting are public records, unless they are specifically protected by law. Although we agree that the OOR decided the Wallace decision correctly, we believe that it should have also cited this provision, as further support for its decision. It could have provided much-needed guidance on the “board packet” issue to both agencies and requesters. We look forward to a future decision that does just that.
First, we believe that the OOR should define what constitutes an “investigative record.” Although the OOR denied access to “investigative records,” in two of its early decisions (where requesters actually identified the documents requested as investigative records), the OOR did not provide guidance for determining what actually constitutes an “investigative record.” This is a critical issue that must be addressed.
The law exempts many “investigative records” from public view. But what is investigative? Records that merely reflect an agency’s everyday, administrative functions cannot be deemed “investigative.” Nor should records that are shared externally with third parties. To hold otherwise, would allow the exception to swallow the rule. For example, restaurant inspections and building inspections are not “investigative.” Nor are parking citations. They are documents that reflect an agency’s routine, administrative functions and are distributed outside of the agencies to the respective restaurant, building, and automobile owners.
In our view, in order to qualify as an “investigative record,” a record must involve some in-depth study by an agency, such as an ongoing police investigation, and should include internal agency documents only. We hope that the OOR will develop a thoughtful definition of “investigative,” in a way that protects actual agency investigations, but also gives meaning to the presumption of openness.
Second, we believe that the OOR should address which board documents are public. What is a “board packet,” and which board documents are public? This is another issue that the OOR has not yet addressed head-on, but is one that both agencies and requesters are grappling with across the Commonwealth.
Under the Right to Know Law, internal, predecisional, deliberative documents are generally not public, until they are presented to a quorum of a board for public discussion. See 65 Pa.C.S. 67.708(b)(10). In other words, “board packets,” or at least portions of them, become public when they are presented to a quorum of a board.
In Wallace v. School District of Lancaster, AP 2009-0010, the OOR addressed the issue of whether contracts and agreements presented to and discussed by a Board subcommittee were public records. It found that they were, primarily because the school district did not meet its burden of proving that cited exemption applied.
In our view, the OOR missed an opportunity in the Wallace decision, to flesh out a critical part of the law, the one that makes most documents public when they are presented to a quorum of an agency for discussion at a public meeting.
As stated above, section 708(b)(10) generally protects internal, predecisional documents of agencies. It provides, however, that “a record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with [the Sunshine Act] shall be a public record.” This means that documents presented to a quorum of a board for discussion at a public meeting are public records, unless they are specifically protected by law. Although we agree that the OOR decided the Wallace decision correctly, we believe that it should have also cited this provision, as further support for its decision. It could have provided much-needed guidance on the “board packet” issue to both agencies and requesters. We look forward to a future decision that does just that.
Read more!
Tuesday, March 10, 2009
Our thoughts on the first decisions of the Office of Open Records
After reviewing the first “Final Determinations” issued by the Office of Open Records (OOR), we see some lessons in them for requesters and agencies. Not surprisingly, the decisions also raise some questions and concerns. Here are our thoughts on the first round of decisions.
First, some things the decisions tell us:
Financial records are public. The Right to Know Law defines “financial record” to include accounts, vouchers and contracts dealing with the receipt or disbursement of funds. It specifically includes names, titles, and amounts paid to agency officers and employees. The Law also makes it clear that most of the exemptions (22 of the 30 exemptions) do not even apply to financial records. In other words, almost all financial records are public records.
The OOR’s decisions confirm that contracts, payroll, and other financial records are public records and that an agency’s burden is great when seeking to deny access to these records. See WTAE-TV/Parsons v. Port Authority, AP 2009-008 (agency payroll records, including names of employees, position/title, salary, date of birth, and hire date are public); Green v. Quakertown Community School District, AP 2009-0041 (certified payroll forms submitted by government contractor on a school renovation project, including employee names, are public).
The burden of proof means something – and agencies must offer proof that a particular exemption applies, not just a citation to an exemption. Under the new law, all records of state and local agencies are presumptively public. An agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. The OOR cites and applies that burden in its decisions, and repeatedly rejects agency attempts to cite an exemption without more evidence. See Green v. Quakertown Community School District, AP 2009-0041 (payroll records of employees performing work under public works projects are public records); Wallace v. School District of Lancaster, AP 2009-0010 (contracts and master agreements discussed at board subcommittee meeting are public records, and agency could not deny access by calling them internal, predecisional records without more evidence); Sasso v. City of Philadelphia, AP 2009-0014 (elevator maintenance records public, although investigation records and audit papers are not).
Do not identify the document you request as an “investigative record.” In Sasso v. City of Philadelphia, AP 2009-0014, Sasso requested, among other things, “investigative records.” In Cahill v. Borough of Penndel, AP 2009-0023, Cahill requested a copy of an “investigation report conducted by building inspection underwriters….” Both requests were denied, and the OOR affirmed the denials, based on the non-criminal “investigation exception” in the Right to Know Law, 65 Pa.C.S. 708(b)(17).
The obvious take away from these decisions is this: Do not identify the document you request as an “investigative record.” If an agency believes that a document is an investigative record, make the agency raise that (and prove it) in its response to you.
As we'll discuss in more detail in our next post, we believe that the OOR must define what constitutes an “investigative record.” This will undoubtedly be one of the most frequently-raised exemptions, and both agencies and requesters will benefit from guidance on this issue.
If agencies say documents don’t exist, the OOR may require an attestation or affidavit before accepting the agency’s claim. In Kurzmiller v. Township of Shrewsbury, AP 2009-0005, Kurzmiller requested a W-2 or 1099 relating to a Township Code Enforcement Officer. The Township Secretary filed an “Attestation” pursuant to 42 Pa.C.S. 6103, asserting that no 1099 existed in the records of the Township. As to the W-2, the Township responded that the Officer was not an employee of the Township and therefore the Township had no obligation to create or maintain such a record. The OOR found that this response was sufficient. See also Ortiz v. Department of Public Welfare, AP 2009-0015 (records destroyed pursuant to agency’s record retention policy, and agency provided “Attestation of Nonexistence of Records” in support of denial).
Agencies that don’t respond adequately to requesters or the Office of Open Records are likely to lose. In Sabatini v. Philadelphia Parking Authority, AP 2009-0022, Sabatini requested the names of certain hearing officers. The agency failed to respond to the request within 5 business days. When it did respond, it incorrectly described the appeals process (agencies are required to include the appeals procedure in any denial letter). The agency also failed to respond to an OOR request for additional information. The OOR ruled that the Parking Authority must provide the names of the hearing officers.
In Wallace v. School District of Lancaster, AP 2009-0010, Wallace requested contracts and master agreements discussed at subcommittee meetings of the school board. The school district denied the request, claiming that the documents were internal, predecisional documents under exemption 10, 65 Pa.C.S. 708(b)(10). The OOR asked for additional information from both parties, but neither party responded. The OOR directed the district to release the records, finding that it did not meet its burden of proof.
If an agency fails to respond adequately to a request, and/or fails to provide requested information to the OOR, it seems likely that that agency will be unable to meet its burden of proof. These cases bear this out, and are a lesson for agencies responding in the future.
Stay tuned for our next post, which addresses concerns that we have about the early decisions of the Office of Open Records.
First, some things the decisions tell us:
Financial records are public. The Right to Know Law defines “financial record” to include accounts, vouchers and contracts dealing with the receipt or disbursement of funds. It specifically includes names, titles, and amounts paid to agency officers and employees. The Law also makes it clear that most of the exemptions (22 of the 30 exemptions) do not even apply to financial records. In other words, almost all financial records are public records.
The OOR’s decisions confirm that contracts, payroll, and other financial records are public records and that an agency’s burden is great when seeking to deny access to these records. See WTAE-TV/Parsons v. Port Authority, AP 2009-008 (agency payroll records, including names of employees, position/title, salary, date of birth, and hire date are public); Green v. Quakertown Community School District, AP 2009-0041 (certified payroll forms submitted by government contractor on a school renovation project, including employee names, are public).
The burden of proof means something – and agencies must offer proof that a particular exemption applies, not just a citation to an exemption. Under the new law, all records of state and local agencies are presumptively public. An agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. The OOR cites and applies that burden in its decisions, and repeatedly rejects agency attempts to cite an exemption without more evidence. See Green v. Quakertown Community School District, AP 2009-0041 (payroll records of employees performing work under public works projects are public records); Wallace v. School District of Lancaster, AP 2009-0010 (contracts and master agreements discussed at board subcommittee meeting are public records, and agency could not deny access by calling them internal, predecisional records without more evidence); Sasso v. City of Philadelphia, AP 2009-0014 (elevator maintenance records public, although investigation records and audit papers are not).
Do not identify the document you request as an “investigative record.” In Sasso v. City of Philadelphia, AP 2009-0014, Sasso requested, among other things, “investigative records.” In Cahill v. Borough of Penndel, AP 2009-0023, Cahill requested a copy of an “investigation report conducted by building inspection underwriters….” Both requests were denied, and the OOR affirmed the denials, based on the non-criminal “investigation exception” in the Right to Know Law, 65 Pa.C.S. 708(b)(17).
The obvious take away from these decisions is this: Do not identify the document you request as an “investigative record.” If an agency believes that a document is an investigative record, make the agency raise that (and prove it) in its response to you.
As we'll discuss in more detail in our next post, we believe that the OOR must define what constitutes an “investigative record.” This will undoubtedly be one of the most frequently-raised exemptions, and both agencies and requesters will benefit from guidance on this issue.
If agencies say documents don’t exist, the OOR may require an attestation or affidavit before accepting the agency’s claim. In Kurzmiller v. Township of Shrewsbury, AP 2009-0005, Kurzmiller requested a W-2 or 1099 relating to a Township Code Enforcement Officer. The Township Secretary filed an “Attestation” pursuant to 42 Pa.C.S. 6103, asserting that no 1099 existed in the records of the Township. As to the W-2, the Township responded that the Officer was not an employee of the Township and therefore the Township had no obligation to create or maintain such a record. The OOR found that this response was sufficient. See also Ortiz v. Department of Public Welfare, AP 2009-0015 (records destroyed pursuant to agency’s record retention policy, and agency provided “Attestation of Nonexistence of Records” in support of denial).
Agencies that don’t respond adequately to requesters or the Office of Open Records are likely to lose. In Sabatini v. Philadelphia Parking Authority, AP 2009-0022, Sabatini requested the names of certain hearing officers. The agency failed to respond to the request within 5 business days. When it did respond, it incorrectly described the appeals process (agencies are required to include the appeals procedure in any denial letter). The agency also failed to respond to an OOR request for additional information. The OOR ruled that the Parking Authority must provide the names of the hearing officers.
In Wallace v. School District of Lancaster, AP 2009-0010, Wallace requested contracts and master agreements discussed at subcommittee meetings of the school board. The school district denied the request, claiming that the documents were internal, predecisional documents under exemption 10, 65 Pa.C.S. 708(b)(10). The OOR asked for additional information from both parties, but neither party responded. The OOR directed the district to release the records, finding that it did not meet its burden of proof.
If an agency fails to respond adequately to a request, and/or fails to provide requested information to the OOR, it seems likely that that agency will be unable to meet its burden of proof. These cases bear this out, and are a lesson for agencies responding in the future.
Stay tuned for our next post, which addresses concerns that we have about the early decisions of the Office of Open Records.
Read more!
Monday, March 9, 2009
Wisconsin newspaper sued over Webcast of high school football game
We are closely watching the lawsuit filed by the Wisconsin Interscholastic Athletic Association (WIAA) against Gannett Co., the Post-Crescent (Appleton, WI), and the Wisconsin Newspaper Association. In it, the WIAA challenges the Post-Crescent's Internet broadcast of a high school football game. Among other things, the WIAA claims that the WIAA owns all media rights in sporting events that it sponsors, including the right to control "any transmission, internet stream, photo, image, film, videotape, audiotape, writing, drawing or other depiction or description of any game, game action, game information, or any commercial use of the same of an athletic event that it sponsors."
Similar disputes have arisen and been settled in Illinois, Arkansas, and Arizona. In November 2007, for example, the Illinois Press Association filed a lawsuit challenging the Illinois High School Association’s (IHSA) media access policy, which limited access to high school sporting events and restricted the use of photographs taken at those events. The parties ultimately settled the lawsuit, with the IHSA modifying its access policy and agreeing not to restrict the secondary use of photographs and video from the events.
Obviously, one of the primary issues in these cases is whether the state athletic associations are 'state actors,' and therefore whether they are improperly restricting access, a free press, or speech in a way that runs afoul of the First Amendment. Depending upon the context, the courts have not always agreed on this issue. It is significant, of course, that the members of these organizations are primarily public schools, and the majority of the sporting events at issue occur on public school property.
The Pennsylvania Interscholastic Athletic Association (PIAA), which is a "Commonwealth agency" under Pennsylvania's Right to Know Law, has its own media access policy, which can be found on its website at http://www.piaa.org/resources/handbook/default.aspx. Among other things, the PIAA policy, as written, asserts ownership of PIAA events. It "permits" the media to use photographs and certain other depictions in news coverage. The PNA has expressed concern regarding portions of the PIAA policy, and maintains a regular dialogue with its members and the PIAA on these and other access issues.
Similar disputes have arisen and been settled in Illinois, Arkansas, and Arizona. In November 2007, for example, the Illinois Press Association filed a lawsuit challenging the Illinois High School Association’s (IHSA) media access policy, which limited access to high school sporting events and restricted the use of photographs taken at those events. The parties ultimately settled the lawsuit, with the IHSA modifying its access policy and agreeing not to restrict the secondary use of photographs and video from the events.
Obviously, one of the primary issues in these cases is whether the state athletic associations are 'state actors,' and therefore whether they are improperly restricting access, a free press, or speech in a way that runs afoul of the First Amendment. Depending upon the context, the courts have not always agreed on this issue. It is significant, of course, that the members of these organizations are primarily public schools, and the majority of the sporting events at issue occur on public school property.
The Pennsylvania Interscholastic Athletic Association (PIAA), which is a "Commonwealth agency" under Pennsylvania's Right to Know Law, has its own media access policy, which can be found on its website at http://www.piaa.org/resources/handbook/default.aspx. Among other things, the PIAA policy, as written, asserts ownership of PIAA events. It "permits" the media to use photographs and certain other depictions in news coverage. The PNA has expressed concern regarding portions of the PIAA policy, and maintains a regular dialogue with its members and the PIAA on these and other access issues.
Read more!
Friday, March 6, 2009
The Decisions are in….New Open Records Office Issues First “Final Determinations”
Since February 19, Pennsylvania’s Office of Open Records has issued eleven “final determinations” on open records disputes in the Commonwealth, and the results are mostly encouraging. These decisions are binding, unless appealed within 30 days. Some of these decisions will certainly be appealed.
Under the new law, all records held by state and local agencies are presumptively public, and an agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. It is clear that the Office of Open Records takes both the presumption and the burden of proof seriously, signaling a real sea change in terms of access to government in Pennsylvania. We hope, as some of these matters are appealed to the courts, that the judiciary applies the same standards and affords the decisions of the Office of Open Records appropriate deference.
Thus far, the Office has found the following:
Public Records:
Contracts and agreements discussed at education subcommittee meeting. Wallace v. School District of Lancaster, AP 2009-0010.
Payroll records, including names of employees, position/title, salary, date of birth, and hire date. WTAE-TV/Parsons v. Port Authority, AP 2009-008.
Certified payroll forms submitted by government contractor on a school renovation project, including employee names. Green v. Quakertown Community School District, AP 2009-0041.
Elevator maintenance reports. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
List of Hearing Officers of Philadelphia Parking Authority. Sabatini v. Philadelphia Parking Authority, AP 2009-0022.
Not Public:
Records destroyed pursuant to an agency’s record retention policy. Ortiz v. Department of Public Welfare, AP 2009-0015.
Investigation report of building inspection underwriters. Cahill v. Borough of Penndel, AP 2009-0023.
Access to non-public areas of PennDot electronic contract management system. Hersh v. Pennsylvania Department of Transportation, AP 2009-0011
Elevator investigation reports and work papers underlying an audit. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
Documents that did not exist. Krall v. Roaring Brook Township, AP 2009-0013; Kurzmiller v. Township of Shrewsbury, AP 2009-0005.
An employee’s own personnel file, including performance evaluations and disciplinary records. Rech v. Department of Education, AP 2009-0034.
Under the new law, all records held by state and local agencies are presumptively public, and an agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. It is clear that the Office of Open Records takes both the presumption and the burden of proof seriously, signaling a real sea change in terms of access to government in Pennsylvania. We hope, as some of these matters are appealed to the courts, that the judiciary applies the same standards and affords the decisions of the Office of Open Records appropriate deference.
Thus far, the Office has found the following:
Public Records:
Contracts and agreements discussed at education subcommittee meeting. Wallace v. School District of Lancaster, AP 2009-0010.
Payroll records, including names of employees, position/title, salary, date of birth, and hire date. WTAE-TV/Parsons v. Port Authority, AP 2009-008.
Certified payroll forms submitted by government contractor on a school renovation project, including employee names. Green v. Quakertown Community School District, AP 2009-0041.
Elevator maintenance reports. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
List of Hearing Officers of Philadelphia Parking Authority. Sabatini v. Philadelphia Parking Authority, AP 2009-0022.
Not Public:
Records destroyed pursuant to an agency’s record retention policy. Ortiz v. Department of Public Welfare, AP 2009-0015.
Investigation report of building inspection underwriters. Cahill v. Borough of Penndel, AP 2009-0023.
Access to non-public areas of PennDot electronic contract management system. Hersh v. Pennsylvania Department of Transportation, AP 2009-0011
Elevator investigation reports and work papers underlying an audit. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
Documents that did not exist. Krall v. Roaring Brook Township, AP 2009-0013; Kurzmiller v. Township of Shrewsbury, AP 2009-0005.
An employee’s own personnel file, including performance evaluations and disciplinary records. Rech v. Department of Education, AP 2009-0034.
Read more!
Wednesday, March 4, 2009
About this Blog
Welcome to the Pennsylvania Newspaper Association's legal and legislative Blog. We hope to use this Blog to communicate with our members (and others) about legal and legislative developments in Pennsylvania, including court decisions, laws and regulations, and legislative proposals that are likely to impact the news media. As a proponent of more open government, we will also track issues and disputes relating to public records and meetings, including the decisions and advisories issued by Pennsylvania's new Office of Open Records.
The Pennsylvania Newspaper Association (PNA) is the statewide trade association for the print media in Pennsylvania. Our mission is to advance the interests of Pennsylvania newspapers, promote the importance of a free and independent press, and provide a forum for critical and innovative thinking about the future of journalism and the newspaper industry.
Feel free to post comments, if you are so inclined, and please check back often for our take on legal and legislative issues affecting the media in Pennsylvania.
The Pennsylvania Newspaper Association (PNA) is the statewide trade association for the print media in Pennsylvania. Our mission is to advance the interests of Pennsylvania newspapers, promote the importance of a free and independent press, and provide a forum for critical and innovative thinking about the future of journalism and the newspaper industry.
Feel free to post comments, if you are so inclined, and please check back often for our take on legal and legislative issues affecting the media in Pennsylvania.
Read more!
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