West Chester University of PA v. B. Schackner and The Pittsburgh Post-Gazette, and Bravo Group, Inc.
124 A.3d 382
Pa. Commw. Ct.2015Background
- Requestor (Bill Schackner and the Pittsburgh Post‑Gazette) sought records about West Chester University’s (WCU) campaign to secure passage of Senate Bill 1275 and the contract/fees paid by the WCU Foundation to Bravo Group, a lobbying/PR firm retained to promote WCU’s proposed secession from the State System of Higher Education (SSHE).
- WCU initially denied or redacted many records, asserting non‑possession (records were with the private Foundation), exemptions (drafts, predecisional deliberations, legislative strategy, personal contact info), and that Bravo’s contract contained confidential proprietary/trade secret material.
- The Office of Open Records (OOR) ordered disclosure in part: it held Foundation/Bravo materials were WCU records (relying on ex officio trustees and Foundation by‑laws), that records produced under a contract advancing WCU’s interests are public under 65 P.S. §67.506(d)(1), and that Bravo failed to prove trade‑secret/confidential proprietary status for the contract.
- OOR allowed limited redactions (personal phone/email), found many items exempt as internal/predecisional deliberations or strategy, and required production of the Foundation/Bravo contract and many trustee/official communications.
- On appeal, this Court affirmed most of the OOR rulings (finding the records public and subject to §506(d)(1); rejecting Bravo’s generalized trade‑secret claim), reversed a narrow OOR ruling requiring unredacted print headers (allowing redaction of support‑staff print headers), amended Exhibit A, and remanded for limited redaction; a judge dissented on selective redactions under the legislative strategy exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Foundation/Bravo records "public records" of WCU? | Requestor: Foundation acts to advance WCU; ex officio WCU officials receive those records, so they are WCU records. | Bravo/WCU/Foundation: Foundation and Bravo are private; records are not agency records. | Court: Records are agency records under Bagwell where ex officio officials and by‑laws show Foundation functions to advance WCU. Disclosed as public records. |
| Does §506(d)(1) make Bravo/Foundation records public because they relate to a governmental function? | Requestor: Foundation performed delegated governmental functions (manage contracts to advance WCU); Bravo’s lobbying directly advances WCU’s governmental interests. | Bravo: Contract was for advocacy (not a delegated governmental function like fundraising) and thus outside §506(d)(1). | Court: §506(d)(1) applies—Foundation by‑laws delegate contract management to advance WCU; Bravo’s lobbying related directly to that governmental function, so records are public unless exempt. |
| May Bravo (a non‑agency, non‑requestor) appeal OOR’s order protecting asserted trade secrets? | Bravo: Has independent property/trade‑secret interests; due process permits appeal to protect proprietary information. | Requestor/WCU: Statutory right to appeal limited to requester or agency; third‑party participation under §1101(c)(1) does not create appeal standing. | Court: Bravo lacks ordinary statutory appeal standing, but may raise limited due‑process/ property interests on appeal related to its trade‑secret claim; however Bravo failed to meet burden to show trade‑secret/confidential proprietary exemption. |
| Were the asserted RTKL exemptions properly applied (personal info; drafts; predecisional deliberations; legislative strategy; trade secret/confidential proprietary)? | WCU/Bravo/Foundation: Many records exempt—personal IDs, drafts, internal predecisional deliberations, legislative strategy, and Bravo’s competitive proprietary info. | Requestor: RTKL presumes openness; exemptions narrowly construed; many claimed exemptions are unsupported or conclusory. | Court: Upheld redaction of personal phone/e‑mail; rejected broad withholding of headers (but allowed redaction of support‑staff print headers); found some records exempt as predecisional or strategy but required narrow redactions; rejected draft and trade‑secret claims where agency/Bravo provided conclusory affidavits and failed to meet preponderance of evidence. |
Key Cases Cited
- Bagwell v. Department of Education, 76 A.3d 81 (Pa. Cmwlth. 2013) (ex officio public officials receiving records in their official capacity can make otherwise private‑sourced records subject to RTKL).
- East Stroudsburg Univ. Foundation v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010) (fundraising by a university foundation can be a delegated governmental function making related records public under §506(d)(1)).
- Commonwealth v. Eiseman, 85 A.3d 1117 (Pa. Cmwlth. 2014) (conclusory affidavits insufficient to establish that records are confidential proprietary information or trade secrets).
- Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Cmwlth. 2013) (agencies cannot rely on conclusory affidavits to sustain RTKL exemptions).
- Carey v. Department of Corrections, 61 A.3d 367 (Pa. Cmwlth. 2013) (predecisional deliberative exemption requires showing that withheld material is internal, deliberative, and predecisional).
- A Second Chance, Inc. v. Allegheny County Department of Administrative Services, 13 A.3d 1025 (Pa. Cmwlth. 2011) (interpretation of §506(d)(1) and scope of records held by contractors performing governmental functions).
- County of York v. Pennsylvania Office of Open Records, 13 A.3d 594 (Pa. Cmwlth. 2011) (agencies bear the burden by a preponderance to prove RTKL exemptions).
- Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013) (appellate court may consider evidence beyond the OOR record and reviews RTKL de novo).