House Bill would reduce legal advertising rates and expand reach of public notices

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.

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.

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.

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.