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.