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.

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.

"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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