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.

In Housing Authority of Pittsburgh v. Van Osdol, a requester wanted to know the addresses of all the section 8 housing in Pittsburgh.  The agency denied the request.  The requester appealed to the OOR, then the agency appealed first to the trial court then the Commonwealth Court.  Ultimately, the Commonwealth Court ordered the records released.  It did so despite what it characterized as "disturbing factual allegations concerning the harm disclosure could cause to the tenants whose addresses are sought," that was alleged in the briefs it received. 

This gave rise to a very interesting discussion by the court indicating that although the RTKL exceptions are to be narrowly construed, there are instances where an agency is permitted to shield information even where it does not fit neatly into the exceptions.

There may be some cases in which the evidence establishes that disclosure of public records which are not facially exempt will necessarily or so easily lead to disclosure of protected information that production of one is tantamount to production of the other, or that disclosure of the one is highly likely to cause the very harm the exemption is designed to prevent ....

Id at 11.

Ultimately, because there was no testimony or other evidence at the OOR or trial level about the potential harm, or how easily the records released could lead to information which would have been properly excluded from a RTKL release, the court ruled the agency had to release the records.  The harm alleged must have been pretty bad, however, since Judge McCullough in her concurrence wanted to send the case back to the OOR so that this shortcoming could be addressed with more evidence added to the record.

Thus, the lesson is not that an agency needs to stay very close to the exceptions but instead, where using an exception that will not quite fit, make sure to get ALL the facts relied upon into the record in front of the OOR and beyond.

The court also reiterated what should be understood by everyone by now -- give all potential reasons for denial when rejecting a RTKL request.  Neither the OOR nor the courts will allow an agency to give supplementary reasons for denial later, including ones in the alternative.

The case is Housing Authority of Pittsburgh v. Van Osdol, 795 C.D. 2011 and 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.

 

 

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!

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.

Right to Know Requests and the Disappearing Revenue Stream

A Delaware County judge over-rules the Office of Open Records.  Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property.  These fees varied, but generally did not exceed $50.  This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification).  By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009.  Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue.  In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law. 

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.”  Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it.  He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation.  For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things.  First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision.  Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions.  Two of those recent matters were in Delaware County.  In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

A link to Judge Cronin's ruling, from the OOR's website, is below.
www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf