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.

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.

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.

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

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

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.

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.

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.

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.

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.

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.

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.