PA's Local Tax Collectors -- Still Not Agencies

The Pennsylvania Commonwealth Court today put a stop to a practice that has arisen in the real estate settlement business since Pennsylvania's new Right to Know Law (RTKL)  went into effect.

People were making requests to local agencies under the RTKL for tax records in the hands of the local Tax Collectors.  The PA Office of Open Records sided with the businesses and ordered the agencies to get the records from the Tax Collectors and turn them over.  Also, despite the fee charged by the Tax Collectors to the Agencies, the Agencies were only permitted to charge the requester a copying fee of $0.25/page.

Since the OOR began ruling this way, other requesters have started making similar requests for other purposes.

As above, the Commonwealth Court said the OOR is wrong.  In fact, the Court said that those records in the hands of the Tax Collector are not accessible through the RTKL at all.  If someone wants those records, they need to contact the Tax Collector and pay the fee.

This case builds on and interprets other RTKL cases having to do with when an agency (such as a school district) can be forced to get records in someone else's hands just so they can be turned over to a RTKL requester.

The case is R.K. Honaman, Jr. v. Twp. of Lower Merion, 2582 C.D. 2009 (2011) and can be found here.

A January Reminder About Religion In School

It is January.  From the kids' point of view, they are back to school after an all too brief  winter recess.  From the point of view of administrators and the attorneys representing them, it is the end of another season fielding questions about religion in schools.  We now have another 10 or even 11 months before it will all come around again.

In the meantime, to remind us of the season just past, the Federal District Court in Delaware (part of the Third Circuit along with Pennsylvania, New Jersey and the Virgin Islands) just issued an opinion concerning a district where a public elementary school teacher was reading Christmas stories to her kids every day in December.   The court there did not say it was too religious, but it refused to say it was not, either.

This was an interim decision simply to determine which issues had sufficient legal support to go to trial, so this case is not over.  But for those of us standing on the sidelines watching, the decision gave a nice but brief review of some of the law related to the 1st Amendment Establishment clause provision of the U.S. Constitution.

As a guideline, school administrators and teachers should remember to ensure that all displays and activities should have at least some secular purpose, should not have a primary effect of advancing or inhibiting religion, and finally, it should not "foster[s] an excessive government entanglement with religion," (the "entanglement" portion of the above, "requires more than mere interaction between church and state, for some level of interaction has always been tolerated"). 

Also, before a member of the general public complains, that person should also stand back and examine the offending display or activity as a "reasonable observer" who is "familiar with the history and context" of such displays or activities would see it.  If that reasonable person would not see it as an "endorsement of religion" then the courts likely will not take any action and the member of the public should not, either.

The federal case in the District Court of Delaware was Jane Doe v. Cape Henlopen School District, 2011 WL 64073 (D.Del.), but the cited language above is from the Third Circuit cases Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597 (3d Cir.2009), and Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir.2004).

PA's Right to Know does not extend to personal email accounts

Whether a person is elected, appointed or hired by an agency, what's theirs is theirs.  More importantly, what's on their own personal computer (or in their personal email account) is not the agency's ... well, unless it is.

In the third of the Pennsylvania Commonwealth Court's trio of decisions issued last Thursday (1/6/11), the court found that an individual's emails are generally not subject to PA's Right to Know Law, even if they have something to do with agency business.  For personally held emails to be subject to release, they have to be "produced with the authority of [the agency], or were later ratified, adopted or confirmed by [the agency]."  Remarkably, the claim had been that this agency's policy included the use of such email accounts for agency emails.  Apparently, that was immaterial.

The court also reviewed the proper procedure for the agency's open records officer ("ORO") to follow when he or she gets a request for records that might be held by an individual: the ORO is simply supposed to ask the individual if the individual "is in possession, custody or control of a requested record that could be deemed public."  From that point, the ORO has to "determine whether the record is public, whether the record is subject to disclosure, or whether the public record is exempt from disclosure."

Happily, the court decided that the above test -- so long as the ORO is making the decision in good faith -- would safeguard everyone from an agency trying to hide its records.

The case can be found under the somewhat long name of In the matter of K.M. Silberstein Appeal from Grant of Open Record Request, Cmwlth. of PA, OOR, York Twp., and S. MacNeal, Esquire, 814 C.D. 2010.  I suspect it will be shortened to something like In the matter of K.M. Silberstein.  Regardless of the name, it can be found here.

Attorney-Client Privilege and the Lawyer's Invoice

This all could have been avoided if the Township's Open Records Officer ("ORO") had not been such a nervous nellie. 

Last Thursday, the Commonwealth Court issued three Right to Know Law related opinions.  This one was number 2. It involved a request to Milford Township for copies of their attorney's bills relating to a particular dispute. Everyone now agrees that the ORO could have waited for the solicitor to review and redact the bills, but instead the ORO released them.

The Commonwealth Court agreed the bills were privileged and could have been redacted. It then went on to rule that a privilege 'owned' by the Board was not waived simply because the ORO released the documents.  In fact, it found the ORO did not even have authority to make a "discretionary release" under the RTKL.

What is also interesting is that the court chose to examine the basis of the attorney-client privilege.  Doing so, it cited language from Upjohn Co. v. United States, 449 U.S. 383 (1981) which did not limit the privilege to only litigation related matters.  The matter here involved litigation, however, so we'll have to wait and see if the courts explicitly extends the privilege at some point.

The case is Bd of Sup. of Milford Township v. McGogney, 2387 CD 2009 and can be found here.


I don't have it, I don't want it, and you can't make me get it

In one of a series of Right to Know cases decided by PA's Commonwealth Court Thursday, the court again overruled the Pennsylvania Office of Open Records ("OOR").  The issue this time had to do with records that were neither held by the agency nor by anyone contracted to do a governmental function on behalf of the agency.  The OOR had said the agency had to get those records and turn them over to the requester.  The Commonwealth Court disagreed, saying the agency had no duty to get the records.

Admittedly, the specifics of the case are not likely to repeat in a school district.  The records requested were wage certification records of a private contractor under the prevailing wage act, but the request was to the PA Office of the Budget whose only connection to the construction job was through a loan overseen by Budget.  The requester figured (wrongly) that because Budget had oversight over the loan -- including the right to review the wage certifications -- that they were records 'of' Budget.

Like I said, not likely to repeat at a school district.  However, this case could have an impact on a similar situation involving the tax collectors that has been annoying school districts and municipalities almost since the law went into effect.

Similar to this case, the tax collector is not a governmental agency and he (or she) is not "contracted" to do a job for the taxing authority (the school district or municipality).  So, if the Commonwealth Court is consistent in its reasoning, it should also find that the taxing authorities are not required to get requested tax information from the tax collectors.

For those interested in the specifics of the case, it is Office of the Budget v. OOR, 768 C.D. 2010, and can be found here.