Pa's Office of Open Records and Hearings

When choosing to schedule a hearing, PA's Office of Open Records puts a notice in the PA Bulletin.  Because of that, it is easy to see that since the law has been in effect there are only two cases where such hearings have been scheduled.  The first one was related to the office of the Governor.  According to the most recent PA Bulletin, the more recent case is the Matter of James Eiseman, Jr. v. Department of Public Welfare that will be heard on May 21, 22 and 23.  This is the second time the case has been scheduled, so who really knows if it will take place when they say.

I really know nothing about the case except what the notice says, but even that is intriguing.  It appears that for only the second matter in which the OOR has agreed to hold a hearing, the question is whether the Department of Public Welfare can protect particular information as a "trade secret or proprietary confidential information."  With the OOR's general bias, I would expect that the answer will be "no" or so limited as to make little difference to eveyone else, but who really knows.

Depending on what the information might be and how it is characterized, the ruling could have wide implications whichever way the OOR rules.

PA's Right to Know Law: can you keep it private if the exclusions don't quite fit?

What is an agency's Open Records Officer to do?  The exclusions in the PA RTKL are supposed to be "narrowly construed," but sometimes the information requested clearly SHOULD be protected.

This issue came up recently in front of the PA Commonwealth Court.

Continue Reading...

W-2 Forms NOT Subject to Right To Know Disclosure in PA

After all the prior fighting over requests for W-2 information, the PA Commonwealth Court has finally taken a position on such requests.

Continue Reading...

May Entirely Deny Access Where Fee Not Paid

Apparently, if you want to complain that an agency in PA improperly redacted information from documents, you have to first pay for and receive the redacted documents.

Indiana University of Pennsylvania (IUP) received a request from one of its own journalism professors -- how's that for loyalty -- for documents belonging to IUP's foundation (a separate but contractually connected entity).  The foundation cooperated and copied the documents and sent them to IUP.  The copying charges were $118.  IUP then offered the documents to the requester, with various redactions, upon payment of the copying charges.  Instead of paying the copying charges, the requester simply appealed the redactions to OOR.

Although the OOR sided with the requester, the PA Commonwealth Court reversed and said that the request was properly denied.

In fact, the court said that until the requester actually paid the fee, the agency had an absolute right to deny access.  This was the case even though IUP notified the requester what it was offering and what was being redacted and that the appeal was based upon that notice.

The case is IUP v. Loomis, 1960 C.D. 2010, and can be found here.

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.

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.

Pa's OOR and the Man Who Sees Dead People

Today, PA's Commonwealth Court released another Open Records decision on the very topical and very gripping issue of when the public is entitled to information from the Coroner related to his findings of cause of death.  In case you were desperately waiting for the answer to this one, apparently it is not until 30 days after the end of the year, just like it says in the Coroner's Act, but I really doubt anyone reading this blog cared too much about that issue.  So, I guess it is really not so topical.

The other issue discussed there was the dueling requests for counsel fees.  This is a much sexier (ok, maybe not sexy) and topical (this time it really is topical) issue.

The requester claimed counsel fees were owed because the Coroner's denial was "contradicted by the language [of the particular cited section] of the RTKL and undermine[d] the clear intent in the RTKL to promote timely access to public records," p. 11.

WGAL-TV lost on the initial issue dealing with the time of release, so one would think that as the non-prevailing party they would automatically lose on this issue, too.  Apparently not the case.  Instead, the court summed up the law in this area, noting the criteria required for a requester to get counsel fees following a denial.  The court pointed out that §1304 of the RTKL allows a court to award fees where:

(1) the agency receiving the original request willfully or with wanton disregard deprived the requester of access to a public record subject to access or otherwise acted in bad faith under the provisions of this act; or

(2) the exemptions, exclusions or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of law.

p. 13, citing 65 P.S. § 67.1304. From there, the court (ignoring the claimed reasons why counsel fees should be awarded, and after pointing out that the TV station did not prevail) went on to examine the above criteria.  In doing so it found that "there is absolutely no evidence presented that the Coroner acted in bad faith or refused the Request based on an unreasonable interpretation of the law."  Of course, I would think that by prevailing, one obviously would not have denied a request "willfully" or with "wanton disregard" or "otherwise acted in bad faith," yet the court felt the need to actually mention it separately.

Regardless, it was good news for the Coroner, but I wonder whether winning was the key and the summary of the criteria was simply support, or is the court implying that a requester can get counsel fees under some theory even if he or she loses?

The case is Hearst Television, Inc. v. Michael L. Norris, 95 C.D. 2010, and can be found on the PA Courts' website here.

(For a short case where the applicable portion was even shorter, this post turned out to be longer than I expected.)

OOR and Home Addresses

The OOR (Office of Open Records, the initial body to which appeals of right to know issues go) has narrowed its interpretation of Judge Friedman's injunction related to the release of school employees' home addresses.   Previously, the OOR had stated that Judge Friedman's reasoning would apply equally to other agencies' employees and that it would not require such agencies to release their employees' home addresses.  It also said that equity required that it rule that way.  That position was summed-up in an advisory on the OOR's web site.

The OOR took down that advisory following the Commonwealth Court's decision, then, after yesterday's PA Supreme Court order, it put up a new one.

The new advisory (found here) now specifically states that the injunction ONLY applies to the home addresses of public school employees.  Therefore, as far as the OOR is concerned, requests to other agencies for their home addresses are still fair game.

Finally, in what reads to me as a bit of denial, the new advisory states, then reiterates, that this order is only temporary.  Nevertheless, at the end it concedes that the injunction has no end date and that it will remain in effect until further notice.

One wonders if the OOR will repudiate its prior Final Determinations in which it cited the reasoning contained in Judge Friedman's order for upholding agency denials of requests for non-school employees' home addresses.  Only time will tell.

Constitutional Right to Privacy? (a follow-up)

Following up on yesterday's bit of news, I was asked why the case cited entitled the PSEA to a stay, reimposing the injunction against releasing home addresses.  Essentially, the PA Supreme Court gave that answer by the case they cited, although the meaning of the answer is a bit cryptic.

The Court cited Pa. Pub. Util. Comm'n v. Process Gas Consumers Group case to give that entitlement.  That case sets the standards for when a "stay" is granted (sometimes called a "supersedeas," it is when a court will put its decision on hold pending the outcome of the appeal).  In applying the first part of that case's standard to the present case, we learn that the PA Supreme Court believes that the PSEA has "ma[de] a strong showing that [it] is likely to prevail on the merits." Id., at 808.

However, remember that the Commonwealth Court "dismissed" or "threw out" the case on procedural grounds, saying that the PSEA sued the wrong party, and specifically should not have sued the OOR.  This is what makes the above reference cryptic.  The appeal before the Supreme Court now is on the question whether the case should have been thrown out on these procedural grounds.  The Court could be answering that limited question (procedurally, the case should not have been thrown out at that stage of the case), or the more fundamental and ultimate question (there is a constitutional right to privacy).

Whichever reason, the PA Supreme Court has telegraphed its initial feeling that the case had sufficient merit to at least go further in the process.  For all we know, it could rule on the constitutional right to privacy issue, too.

PA Supreme Court restores injunction

Teachers' home addresses are again shielded from requests under the PA Right to Know Law.

In July 2009 Senior Judge Friedman of the Commonwealth Court, sitting alone, issued a preliminary injunction shielding school employees' home addresses from requesters.  In September 2010, the full Commonwelath Court dismissed the underlying case, thereby dismissing the injunction, as well.  On November 1, 2010, the PA Supreme Court reimposed the injunction.

Without making more of this than we can reasonably take from a decision that is summed up by the single line

Upon review of the parties’ pleadings, we believe that appellants are entitled to a stay pursuant to Pennsylvania Public Utility Comm’n v. Process Gas Consumers Group, 467 A.2d 805 (Pa. 1983).

I can pass on that others have felt this is especially positive.  There are those that believe this decision, as well as the one from August 2010 hint that the PA Supreme Court will find that there is a constitutional right to privacy.  One really has to read between the lines to get that from this decision, though.

What this means is that we have returned to the situation as it existed just after Judge Friedman issued her initial injunction protecting those addresses.  While the injunction remains in effect, School Districts do not need to release home addresses and the OOR cannot order them to do so.

The "full" interim Supreme Court decision can be found on the Court's web site at Pa. St. Education Assoc., et al v. Commonwealth of Pa., et al - No. 195 MM 2010.  The August Supreme Court decision, which is even shorter, and simply 'affirms' the injunction, can be found here.

How to not release financial information about a person

What is one to do when one cannot redact actual financial information for a person?  According to the Commonwealth Court, you can instead redact the person's name and address.

Right now, there is still a lot of hand-wringing over the release of people's home addresses held by an agency.  The current state of the law is unsettled and neither Pennsylvania's Commonwealth nor Supreme Court has explicitly decided if there are any constitutional protections for that information. While we all wait for a definitive statement one way or the other, however, it is worthwhile to note that one of those courts has already sanctioned a situation where one may redact a person's home address: Prevailing Wage Certifications.

The case is DCNR v. OOR, 1165 C.D. 2009 (May 24, 2010).  In that decision, the court agreed that a prevailing wage certification clearly contains financial information, which would normally be subject to redaction.  However, the purpose of such a certiciation is to allow the public to verify that prevailing wages (as set by the Secretary of Labor through the Prevailing Wage Act) are being paid.  There would be little point in releasing contractor's wage certification with all the wage information redacted, but that would be what the RTKL permits.

What the court ended up saying was that redacting an employee's name and address off the certification has the effect of making the financial information anonymous.  Once it is made anonymous, it is no longer a single person's financial information and can be released.

In addition to the Department of Conservation and Natural Resources (DCNR), the other Pennsylvania agencies aligned against the position reached by the Office of Open Records (which had ruled the wage certifications should have been released without any redactions) were the Office of the Budget and the Department of General Services.

A reminder about redactions: where a requester asks only to view records but does not request copies, it is permitted to charge for copies anyway if the agency will need to make copies in order to make redactions.  If it chooses to charge for those copies, the agency should get its payment prior to giving access.

Continue Reading...

An injunction to shield public documents

When an agency in Pennsylvania gets a right to know request, it has a couple of options.  Obviously, it can grant the request or deny the request.  The third, less obvious choice, is to realize that in many cases the agency "does not have a dog in the fight" and the person who does may be more interested in footing the bill for keeping information private.  In those cases, the agency may choose to simply notify that person (or corporation or other entity) of the request, and give that person a chance to bring proof of an injunction or some other court order stopping the agency from making the release.

That is what happened in a case just decided by the Pennsylvania's Commonwealth Court that ended up pitting Philadelphia's police union against the Philadelphia Newspaper LLC. The fight concerned a request for "all arbitration awards, including written decisions by arbitrators, pertaining to police officers ...."

The Philadelphia court issued the injunction but the Commonwelath Court found that it was a mistake.  The appeals court found that Philadelphia court should not have issued the injunction because there were ample ways within the RTKL of shielding the information the union had wanted to protect.  Nevertheless, there were interesting issues discussed by the Commonwealth Court in its opinion.

First, the case shows this is an effective and appropriate procedure for dealing with such issues.

Second, the court more clearly defined what needed to be released and drew a line between the arbitrator's 'opinion' and his or her 'award' or 'order'.  Although various records relating to grievance arbitrations are shielded by an exception within the RTKL, there is an "exception to the exception" stating that the "final award or order" is not shielded.  This means that where a requester asks for those final awards or final orders, the agency is supposed to release them.

The court explained that the final award or order is generally separated from the arbitrator's opinion much as the court itself separates its opinion from its order, even when they are within the same document. You can see the way the court itself did it in the linked court opinion/order, below, but the same is also true of the the final determinations of the OOR.  Those final awards or orders generally do not have much in the way of facts about the case, but even if they did, some of those facts can be redacted if there is an exception that covers them.

Third, when this case discussed the 2009 PSEA v. OOR injunction decision, it did not do so dismissively or in any way concluding that Senior Judge Friedman had been wrong in her statement about the law.  This is noteworthy in light of the later decision by the court to dismiss the PSEA case.  Also, Judge Pelligrini joined the majority in this case after writing a scathing concurrence in the prior case stating he did not believe there was any constitutional right to privacy in home addresses.

Published by the Commonwealth Court this past Friday, this new case is M. G. Lutz, et al. v. City of Phila, 1996 C.D. 2009.

It's governmental my dear Watson

When Sherlock Holmes says "its elementary," he's saying "of course this is the way it is."  He's looked into the facts, discovered his clues and come up with the only answer that could possibly fit the facts.

Now, the OOR and the Commonwealth Court are saying the same when investigating if the job an agency is having an outside party do is "a governmental function."  Of course, it is a pretty easy investigation.

If fact, you may not even want to bother with that part of the equation.  This is because the court has made it REALLY easy on you:  everything the agency does is a governmental function, so when the agency has someone else do that something for it, it is governmental, too.

In case you had been hoping that the East Stroudsburg case would turn out to be an anomaly or rely on its unusual facts, I have bad news.  In a panel decision written by Judge Pelligrini, the court in Buehl v. OOR reiterated the language from the earlier case before coming up with a somewhat less controversial finding that the operation of the Dept of Corrections' commissary is a governmental function.  Therefore, if someone else runs or supplies the commissary, it is also a governmental function.

When the RTKL first came out, the general understanding was the 'governmental function' language referred to the various court rulings determining 'intrinsic governmental functions' (which are core functions of governmental agencies and are the opposite of 'proprietary functions', essentially when a government acts as a business).  If that turned out to be the proper interpretation, the only time documents held by a school district's contractors would be available would be if that contractor's job was directly involved in teaching. The Buehl and earlier East Stroudsburg cases dispell that idea.  Now, if a school contracts for lining the football field, documents directly relating to that task in the hands of the contractor will be available to a requester.

(Actually, there is a second requirement, but my point concerns the definition.  Interestingly, the proposed amendment to the RTKL currently kicking around Harrisburg calls for further restrictions on what documents in the hands of a third party are available to a requester).

So, in the end, if Sherlock wants a more challenging game, he should try instead to discover what will NOT be a governmental function.  Tally Ho!  The game is a foot!

Private Email of Public Officials

Judge Albright of the Court of Common Pleas of Montgomery County issued an opinion which -- at least within Montgomery County -- protects the personal emails of agency personnel (both elected and employed).  The Office of Open Records came to a different conclusion ruling that such emails are agency records and that the agency is required to get the emails from the individuals and turn them over to requesters.

As above, Judge Albright disagreed -- and at least within Montgomery County his opinion overrules the OOR.

I have read Judge Albright's decision.  He specifically found that emails on individual township supervisors' personal computers at their homes and private email accounts were neither township records nor public records.  This means that -- at least for now -- there is different law applied to those agencies within Montgomery County (and, as below, in York) than there is elsewhere in Pennsylvania.

As always, however, this may not be the final word.  Back in April a York County court also came to the same conclusion as Judge Albright and that York County case is already on appeal.  It is set to be argued in front of the Commonwealth Court in December.  If the Commonwealth Court thinks the York County judge was wrong, then its opinion will also be understood to overrule Judge Albright.  We'll have to wait to see what happens.

The solicitor's office for Worcester Township was nice enough to send me a copy of Judge Albright's order and I thank them for their courtesy.  That case is Township of Worcester v. CW of PA, Office of Open Records and James Mollick, Montgomery Cty. Dkt. No. 09-09584.  The York County case is docketed at In the Matter of Kenneth M. Silberstein and the docket entries can be found online here.

Proposed RTKL Amendments

The PA Legislature is considering some amendments to the current Right to Know Law (RTKL).  From my initial review of the proposed changes, I am not sure what to think of them.  They include some clarifying language as well as some more substantive changes, but mostly, they do not include the big items.

An ongoing problem, and one not addressed in the proposed amendments, has to do with charging for a search. A requestor can submit a request requiring enormous man-hours to fulfil, but the law does not provide any explicit means for the agency to charge the requestor for that search.  When this problem was brought up in an appeal, the OOR essentially said 'too bad.'  In that case, a sheriff's office was told that it had to manually search through every file in the office to see which had documents that were responsive. (See,  Carter v. Phila. Sheriff's Office, OOR Dkt. AP 2009-0175).

Do any other situations where this law is not entirely fair to agencies come to mind for you?  If so, email me or leave a comment.

OOR and the Non-Criminal Investigation Exception

In another setback for the Office of Open Records ("OOR"), the Commonwealth Court has ruled that records collected as part of a mandatory inspection and survey are covered by the "non-criminal investigation" exception of the RTKL. 

The OOR stated that this could make the "exception [one that] that swallows the rule" and that if these records were covered, then almost anything else could be, too.

The Commonwealth Court disagreed.  In finding that this exception applies, the court decided that there is no requirement for a triggering event -- such as a complaint -- which the OOR had made a prerequisite for this exception.  Further, the definition of "investigation" is now set by the court in this context:

Therefore, we conclude that, as used in Section 708(b)(17), the term “investigation” means a systematic or searching inquiry, a detailed examination, or an official probe

As it applied to this case, the court also decided that since all the records were gathered as part of the non-criminal investigation, that they were all covered by the exception.  This meant that no part of the record had to be redacted and released. 

Separately, the court chose not to address an argument concerning a second possible exception -- internal pre-decisional deliberation -- because it had already found the records were not availabile under the first exception.

The case can be found at Department of Health v. Office of Open Records


CCP Lackawanna and the Tax Collector

A reader asked me in the context of my prior article dealing with CCP Lackawanna v. OOR (see item from August 17) how that case might apply to the tax records in the hands of the Tax Collector.  It doesn't.  In fact, the CCP Lackawanna case is the exact opposite of that.

For the benefit of those unaware of this, the OOR has taken the position that where a Tax Collector performs his statutory duty on behalf of an agency, it remains the agency's duty to get his records and turn them over upon request.  This despite the statute making the Tax Collector exempt from the RTKL.  The OOR's position was successfully challenged in the Montgomery County CCP with the case on appeal to the Commonwealth Court.  (I wrote about this situation in an alert to the firm's clients back in January 2010 before Mr. Honaman took his appeal on behalf of Signature Solutions. CW Ct. argument is now scheduled for September 2010, so stay tuned).

Thus, where the CCP Lackawanna case involved judicial records (private non-RTKL records) in the hands of an agency with a duties under the RTKL, the Tax Collector situation involves a request for arguably public records sent to an agency that does not have the records to turn over. 

So I would not recommend relying upon the CCP Lackawanna case for issues dealing with the Tax Collector's records. For that issue, we will have to await the ruling of the courts.  That being said, were I deciding the case, I would side with Judge Moore (of Montgomery County CCP) and point out that the records the Tax Collector is required to turn over to a taxing agency is limited both in extent and timing and only make an agency turn over what it has actually received.

When access and control will not render a record public

The Commonwealth Court recently issued a decision in the Court of Common Pleas of Lackawanna County v. the Pennsylvania Office of Open Records and Lackawanna County, No. 35 M.D. 2010 (Pa. Cmwlth.). Essentially, this case indicated that where an agency has access to a record as a result of its support of a second agency, that record will maintain its status and exclusions as though it was only held by the second agency.

The court found that the requested records were judicial records (normally exempt from the RTKL) but they were housed on the County's computer server, giving the County access to and control over the records.  The OOR had decided that meant that a requester could gain access by directing a request to the County.  The Commonwealth Court disagreed.

Essentially, the court decided that the County was providing a support function to the judicial agency and that the County’s ability to access records as a result of that support did not convert the judicial agencies documents into County documents.

Just because the County provides logistic support to the courts does not mean that every record stored on what the County provides as part of its function to support the court makes it a county record – those records always remain the records of the court.

The court went on to point out that a different finding would lead to an absurd result where one could obtain non-public documents of the court simply by directing the request to the county.

This reasoning applies equally well to §708(b) exceptions. Thus, the §708(b) exceptions that would apply to a supported agency will continue to be effective on the records in the hands of the supporting one. An example of interest to some agencies might be where they contract with another agency to analyze or gather data and issue reports used for negotiations.