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.

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.

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.

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.

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 .

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

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.