Office of the Governor v. Bari
2011 Pa. Commw. LEXIS 221
| Pa. Commw. Ct. | 2011Background
- IVCC is a private nonprofit corporation operating the Independence Visitor Center in Philadelphia.
- Governor Rendell designated William Graham as IVCC's Class C director, creating a claimed link between the Office and IVCC.
- Bari, a private citizen, filed RTKL requests seeking IVCC governance communications and Board minutes from 2001–2010.
- The Office initially denied access to an attachment to a 2004 letter and a 2003 memo as confidential proprietary information under RTKL §708(b)(11).
- OOR granted Bari access to the Board minutes, finding the minutes were public records and in the Office’s possession via Graham, and denied the 708(b)(11) claim.
- The Pennsylvania Commonwealth Court reverses in part, vacates in part, and remands for further proceedings on possession and the confidential information exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are IVCC Board Minutes public records under RTKL? | Bari: Minutes are records of an agency via Governor-appointed representative. | Office/IVCC: Minutes are not records of the Office; IVCC is separate from the Office. | No; Board Minutes are not public records under RTKL. |
| Was the Office's possession of the IVCC Minutes established? | Presumption of public-record status applies if Office has possession. | Office does not have possession; Graham’s possession is irrelevant to the Office. | The Office did not prove possession; no Section 305 presumption applied. |
| Does the 708(b)(11) confidential proprietary information exemption apply to the 2004 attachment and 2003 memo? | Attachments are not sufficiently shown to be confidential proprietary information. | Attachments contain confidential proprietary information under RTKL §102 and §708(b)(11). | Remanded for a hearing to determine if information is confidential and if disclosure would harm IVCC’s competitive position. |
| Was Bari's August 2010 RTKL request disruptive under §506(a)? | Repetitive requests should not bar access; burden not shown to be unreasonable. | Requests were duplicative and burdensome during budget constraints. | The disruption argument was not supported; remand for further consideration on the 506(a) issue. |
Key Cases Cited
- Allegheny County Department of Administrative Services v. A Second Chance, Inc., 13 A.3d 1025 (Pa.Cmwlth.2011) (defines 'public record' and 'of' in RTKL, and discusses records not created by the agency)
- In re Silberstein, 11 A.3d 629 (Pa.Cmwlth.2011) (noting limits on what constitutes records of a public entity)
- Crum v. Bridgestone/Firestone North American Tire, LLC, 907 A.2d 578 (Pa.Super.2006) (distinguishes 'confidential proprietary information' from 'trade secrets' for RTKL purposes)
- Den-Tal-Ez, Inc. v. Siemens Capital Corp., 389 Pa.Super. 219 (Pa.Super. 1989) (distinguishes confidential information from other categories in RTKL)
- Bowling v. Office of Open Records, 990 A.2d 813 (Pa.Cmwlth.2010) (RTKL remedial purpose and access principles)