SWB YANKEES LLC, Appellant v. Gretchen WINTERMANTEL and The Scranton Times Tribune, Appellees.
Supreme Court of Pennsylvania.
Argued Nov. 29, 2011. Decided May 29, 2012.
45 A.3d 1029
Joseph Owen Haggerty Jr., John Timothy Hinton Jr., Haggerty, McDonnell, O‘Brien & Hinton, LLP, Scranton, for Gretchen Wintermantel and Scranton Times Tribune.
Emily J. Leader, PA School Boards Association, Inc., for Appellant Amicus Curiae PA School Board Association.
Jillian M. Petrosky, Robert J. Tribeck, Rhoads & Sinon, L.L.P., Harrisburg, for Appellant Amicus Curiae Pennsylvania Foundations Association.
Melissa Bevan Melewsky, Pennsylvania Newspaper Association, for Appellee Amicus Curiae PA Newspaper Association.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice SAYLOR.
This appeal concerns the application of Pennsylvania‘s recently revamped Right-to-Know Law to certain documents in the possession of a private entity serving as the management agent for a municipal authority in the operation of a minor league baseball stadium.
Background
In 1985, the Board of Commissioners of Lackawanna County formed the Multi-Purpose Stadium Authority of Lackawanna County (the “Stadium Authority” or the “Authority“), invoking the Municipality Authorities Act of 1945.1 According to its Articles of Incorporation, the Authority‘s main purpose is:
To acquire, by gift, purchase, construction or in any other lawful manner, and to own, hold, manage, maintain, lease
and operate a multi-purpose stadium situate in Lackawanna County, including but not limited to, real estate, rights of way, easements, equipment, personal property, both tangible and intangible, and any other asset deemed appropriate by the Authority to generate revenue to retire debt incurred by such Authority....
Certificate of Incorporation of Multi-Purpose Stadium Authority of Apr. 25, 1985, at 3. The Stadium Authority subsequently acquired a minor league baseball team, renamed the Scranton/Wilkes-Barre Red Barons, which became affiliated with the Phillies of Major League Baseball‘s National League. After capital was raised via bonds and other public financing, the Authority constructed the Lackawanna County Stadium, now known as PNC Field (and hereinafter as the “Stadium“), to serve as the home field for the franchise.
From 1989 to 2006, the Authority managed all projects at the Stadium, including the day-to-day operations of the Red Barons. The Authority also entered into contracts with various food service providers for concessions at the Stadium. However, in 2006, the Phillies ended their affiliation with the Red Barons; a new one with the New York Yankees ensued; and the Red Barons became the Scranton/Wilkes-Barre Yankees.
In the same time period, the Authority consummated a management agreement with Mandalay Baseball Properties, LLC, a private entity, which vested Mandalay with the overall management and control of the day-to-day operations of the baseball club and the Stadium. Per the terms of the contract, Mandalay also assumed total responsibility for, inter alia, concessions and agreed to pay the Stadium Authority, for the duration of the agreement, the greater of $125,000 or 33.33% of the collected net income before income taxes each year.
Mandalay and the New York Yankees later formed a joint venture management company known as SWB Yankees LLC (“Appellant“), and the Stadium Authority and Appellant entered into a replacement management agreement. Under the contract, and as relevant here, Appellant became the sole and
In 2009, Appellant terminated a then-existing food service contract for concessions at the Stadium. After soliciting bids from various concessionaries and reportedly receiving competing proposals, Appellant contracted with Legends Hospitality LLC.2
Shortly thereafter, Gretchen Wintermantel, a reporter for the Scranton Times Tribune (collectively “Appellees“), submitted a request to the Stadium Authority seeking “access to and copies of all names and the bids submitted to [Appellant] for a concessionaire contract at [the Stadium].” Appellees invoked the Right-to-Know Law,3 which generally provides for access to “public records,” defined as non-exempt and non-privileged “records” of a Commonwealth or local agency.4 The enact-
Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.
On behalf of the open-records officer, see
A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.
Appellees appealed to the Office of Open Records, taking the position that any action by Appellant as the Stadium Authority‘s agent is public business. See
The Office of Open Records granted the appeal and directed the Authority to provide Appellees with the requested information. In her opinion, the appeals officer explained that she regarded the governmental-proprietary distinction as inapposite to the open-records arena. In this regard, she observed that, under that test, the Stadium Authority‘s entire purpose (i.e., owning and running a baseball park) might also be considered non-governmental, although, indisputably, the Authority is a local governmental agency. Thus, the appeals officer reasoned that “[t]he test in this case is not whether or not baseball or Stadium operations are governmental functions in a vacuum.” In re Wintermantel v. Multi-Purpose Stadium Auth. of Lackawanna Cnty., No. AP 2009-0184, slip op. at 6 (OOR May 6, 2009). Rather, she explained, the work the Stadium Authority itself performs is “a crucial aspect” in considering whether Appellant performs a governmental function. Id. (“The test under
The OOR finds that the [Management] Agreement transfers essentially all functions to [Appellant], and is precisely the kind of arrangement the RTKL targets in
[Section 506(d)(1)] and that the records of [Appellant] are exactly the type required to be disclosed. To hold otherwise would permit a local agency, expressly subject to the RTKL, to contract away all of its functions to a private company and shield all of its operations from the public that funds them. We find the arguments advanced by the Authority, demonstrating the complete control of [Appellant] over operations, to support disclosure rather than protection.
Id. at 6-7.
Appellant lodged an appeal in the common pleas court, see
In his opinion, Judge Nealon initially rejected Appellant‘s argument that the bids for a concessionaire contract are not “records” for purposes of the Right-to-Know Law, since Appellees’ request was phrased broadly such that it might be read as subsuming intangible information. According to the court, the request was centered on written concessionaire bids,
Turning to the conception of “governmental function” as used in
Judge Nealon recognized that, when viewed more abstractly, the term “governmental function” is subject to varying interpretations according to the context in which it might be
The obvious purpose of the rule [against binding a successor governmental body] is to permit a newly appointed governmental body to function freely on behalf of the public and in response to the governmental power or body politic by which it was appointed or elected, unhampered by the
policies of the predecessors who have since been replaced by the appointing or electing power. To permit the outgoing body to “hamstring” its successors by imposing upon them a policy implementing and to some extent, policy making machinery, which is not attuned to the new body or its policies, would be to most effectively circumvent the rule.
SWB Yankees, No. 09 CV 3691, slip op. at 22 (quoting Lobolito, Inc. v. N. Pocono Sch. Dist., 562 Pa. 380, 385, 755 A.2d 1287, 1289-90 (2000)). Judge Nealon found such rationale to be very different from the aims of an open-records regime. Indeed, he expressed concern that, if courts were to impose a narrowing construction, municipal authorities could undermine the salutary purposes of the open-records law by the mere act of delegating their core functions to a private entity.
In this regard, Judge Nealon examined the previous incarnation of Pennsylvania‘s open-records law. See
Judge Nealon also believed the omission of the “essential” modifier from
From a broader frame of reference, Judge Nealon indicated that the terms of the competing concessionaire contracts submitted to Appellant are matters of legitimate public interest, particularly in view of their impact on the annual payment to the Stadium Authority under the Management Agreement. In this regard, the court highlighted that the Stadium Authority owes Lackawanna County more than $13,000,000 for past indebtedness. Furthermore, the court stressed that the Authority had made Appellant its agent, with the ability to bind it. See SWB Yankees, No. 09 CV 3691, slip op. at 29 (“Because the functions that [Appellant] perform[s] on behalf of the Authority directly affect the Authority‘s revenue stream and its potential liability to aggrieved vendors of [Appellant], the taxpayers of Lackawanna County have a bona fide interest in scrutinizing [Appellant‘s] performance of those duties which were previously the responsibility of the Authority.“).
Having rejected the invitation to import the governmental-proprietary litmus into the open-records context, Judge Nealon looked to other jurisdictions for guidance as to the appropriate construction of
- that the agency is empowered to conduct;
- that the agency previously performed prior to contractually delegating that function to the government contractor;
- that are conducted on agency owned property;
- in which the agency has a continuing financial interest; and
- that affect the quality or cost of goods or services offered to the public on the agency owned property.
SWB Yankees, No. 09 CV 3691, slip op. at 31-32.
Judge Nealon had little difficulty in concluding that the confluence of such factors in the present circumstances yielded the conclusion that the services Appellant performs on the Stadium Authority‘s behalf constitute governmental functions. See id. at 33; see also id. at 2 (“Inasmuch as the contractor‘s plenary management of all events involving the Authority-owned Stadium and Triple-A Baseball team occurs on Authority property, represents a function that the Authority previously performed, serves as the sole means of revenue for the Authority and its corresponding ability to maintain the Stadium and repay its debt to the County, and affects the quality and cost of the goods and services offered to the public on the Authority‘s property, the work performed by the management company constitutes a ‘governmental function’ under the Right-to-Know Law.“). Furthermore, the court found that the competing bids that Appellant received for the food service contracts directly relate to those functions.
After Appellant lodged an appeal, the Commonwealth Court issued its decision in East Stroudsburg University Foundation v. OOR, 995 A.2d 496 (Pa. Cmwlth. 2010) (en banc), appeal denied, 610 Pa. 602, 20 A.3d 490 (Table) (2011), determining, in relevant part, that “all contracts that governmental entities enter into with private contractors necessarily carry out a ‘governmental function’ [for purposes of
Before the Commonwealth Court, Appellant argued that the common pleas court ignored the straightforward meaning of the term governmental function; proffered an interpretation of the phrase that contravened the legislative intent underlying the new Law; and erroneously rejected the governmental-proprietary test. In developing these contentions, Appellant asserted that Judge Nealon‘s decision implicates concerns raised by concurring jurists in East Stroudsburg, both in terms of the breadth of “governmental functions,” see id. at 508 (Leadbetter, P.J., concurring) (suggesting that the majority‘s interpretation of the term “governmental function” is “far too broad, for it renders the term ‘governmental function’ meaningless“); id. at 510 (McCullough, J., concurring) (same), and in terms of the association with transactions or activities of municipal authorities. See id. at 508 n. 1 (Leadbetter, P.J., concurring) (faulting the majority for “summarily assum[ing]” that
The intermediate court affirmed. See SWB Yankees LLC v. Wintermantel, 999 A.2d 672 (Pa. Cmwlth. 2010). Its opening observations mirrored those of the common pleas court in that the Commonwealth Court drew substantial support from the understanding reflected in the Municipality Authorities Act that authorities perform “essential governmental functions,” and the absence of the “essential” qualifier from the new Right-to-Know Law. See id. at 675. The court reasoned:
Here, we have an authority that was clearly created for the benefit of the people of the Commonwealth, and for the increase of their commerce and prosperity. The fact that it contracted out the operation of its baseball and other entertainment events at the Authority, is of no consequence as
Section 506(d)(1) of the RTKL clearly puts a third party in the same position as an agency for purposes of the RTKL. Given the above, the fact that [Appellant] creates revenue for the Commonwealth and operates a public place for the benefit of the Commonwealth, the bids requested from [Appellant], which clearly affect the amount of revenue generated by the Authority, are public records. [Appellant] had the burden of proving otherwise by a preponderance of the evidence; the OOR and the trial court did not find that it met its burden. We agree, and hold that the facts, as presented, do not indicate otherwise.
Wintermantel, 999 A.2d at 675. Based on these considerations, the Commonwealth Court also indicated that that the case did not involve the concerns raised by the concurring judges in East Stroudsburg, and that the requested information qualified as a “record” under the Law. See id. at 675-76.
The framework governing appellate review in matters arising under the Right-to-Know Law is presently under consideration elsewhere. See Bowling v. OOR, 609 Pa. 265, 15 A.3d 427 (2011) (per curiam). In this case, our review is limited to matters of statutory construction and, thus, is plenary. See, e.g., In re Erie Golf Course, 605 Pa. 484, 501-02, 992 A.2d 75, 85 (2010).
Arguments
Presently, Appellant maintains that the Office of Open Records, Judge Nealon, and the Commonwealth Court reached an incongruous result in holding that exhibiting baseball games and selling concessions is a governmental function. In various passages, Appellant appears to recognize a need for guidance beyond the statutory term “governmental function” itself concerning exactly what was intended, but Appellant is emphatic in its position that, at the very least, “[t]his Court can and should draw [the] line at beer and hot dogs.” Brief for Appellant at 9.
Invoking the East Stroudsburg concurrences, Appellant contends that the extension of “governmental function” to any and all revenue-raising activities strips the term of any role or function within the statutory scheme. See id. at 14 (“The
Appellant acknowledges that the Legislature‘s main goal in implementing the new Right-to-Know Law was to substantially enlarge public access to government records. Appellant, however, discerns no similar purpose with regard to third-party records, since “none of the most significant objectives of the RTKL involve or entail exposing information held by private third party contractors to public disclosure.” Brief for Appellant at 32. It is Appellant‘s position that the General Assembly intended to create a “limited, narrowly tailored class of third party records that may properly be considered agency records under the RTKL,” thus addressing a void that existed under the previous open-records law. Id. at 30.
Appellant also criticizes the prior reviewing courts’ allusions to the phrase “essential governmental function,” appearing in the previous open-records law, explaining that, in that statute, the Legislature merely employed the phrase in defining an agency.10 Since the prior law did not contain any analogue to
Appellant also challenges the common pleas and intermediate courts’ reliance upon the Municipality Authorities Act, asserting that such enactment does not pertain to third-party contractors and, in any event, cannot be read to mean that municipal authorities only perform essential governmental functions. See, e.g., Reply Brief for Appellant at 12 (“[I]t is simply incredible for [Appellees] to argue that all functions of a municipal authority must be considered governmental, so that every function delegated by a municipal authority to a private entity must necessarily be a ‘governmental function’ under the RTKL.“). In addition, Appellant argues that, were this Court to adopt the Commonwealth Court‘s interpretation of the term governmental function, it would chill business relations between government agencies and private parties, leaving the latter “left to speculate as to what effect
As to the second issue on appeal, Appellant maintains that the requested information does not fall within the definition of a record. It claims the information sought does not “docu-ment[] a transaction or activity of an agency,” and was not “created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.”
Amicus, the Pennsylvania Foundations Association, expresses the concern that the broad interpretation of “governmental function” reflected in the Commonwealth Court‘s decisions has had the effect of converting private university foundations into public entities, stripping them of features which attract private-sector donations. The Association argues:
Because of the Commonwealth Court‘s overbroad and legally incorrect interpretation of the term “governmental function” in East Stroudsburg, all government contractors that perform any function for a State agency are now plainly within the purview of the RTKL....
* * *
... The determination in East Stroudsburg and its application to the pending matter, have a detrimental and disproportionate effect on government contractors that perform proprietary business functions pursuant to a contract with a government agency. It is submitted that the term “governmental function” in the RTKL was not intended to have the effect of opening the records of each and every entity that contracts with the government, regardless of the nature of the actual contracted function performed, to public view and inspection. The Foundations Association submits that the definition of “governmental function” set forth in East Stroudsburg and subsequently applied and expanded in Yankees is contrary to Pennsylvania law and will only serve to diminish the availability of low cost private contractors to perform non-governmental functions for the State.
Amicus, Pennsylvania School Boards Association, also seeks a determination that the concessionaire bids are not “public records” for purposes of
faced with the prospect of seeking records from former contractors which parted on bad terms, from contractors engaged in litigation with the agency, from small companies with records in a shoebox to large corporations that just do not pay attention to an agency‘s request for cooperation. If an agency is not successful in securing these records, it is the agency, not the third party that faces sanctions under the RTKL.
Brief for Amicus Pa. Sch. Bds. Ass‘n at 4.
Appellees, on the other hand, credit the common pleas and intermediate courts’ analyses, emphasizing the legislative policy of providing broader access to citizens concerning information about the affairs of government. Appellees agree with Judge Nealon that the most appropriate framework for ascertaining if a private contractor is performing a governmental function is to apply a flexible “totality of factors” approach, not the government-proprietary litmus, and that the relevant
In this same vein, amicus Pennsylvania Newspaper Association asserts that the governmental-proprietary rubric provides an unsuitable definition of a governmental function for purposes of the Right-to-Know Law. In this regard, the Association avers that adopting the common-law test would thwart the policy behind the new Law, since:
government agencies would be free to contract away the public access requirements of the RTKL while the public, the OOR and the court system would be mired in a confusing analytical morass trying to determine when public records could transform into non-public records by operation of contract under the governmental/proprietary function test.
Brief for Amicus Pa. Newspaper Ass‘n at 12. The Newspaper Association thus urges this Court to hold that any function that would be performed by the Stadium Authority in the absence of a third-party contract is a governmental function for purposes of the Right-to-Know Law. See id. at 9 (“[W]hen a contractor willingly steps into the shoes of a government agency, and performs functions that would otherwise be performed by a government agency, accountability must accompany the contract and it is a legitimate aspect of doing business with the government.“).
Appellees also maintain that the requested information is a “record,” since the Management Agreement between the Stadium Authority and Appellant documents a transaction or activity of the Authority, and the bids or proposals are “integral” to that contract. Brief for Appellees at 34-35. The Newspaper Association, however, seems to acknowledge that, since the definition of a “record” is couched in terms of information that documents a transaction or activity “of an agency,”
[I]f the information fits the definition of “record” and “public record” for a government agency that has not assigned a
Discussion
Having reviewed the relevant statutory scheme, the parties’ arguments, and the record, we agree with the appeals officer, Judge Nealon, and the Commonwealth Court that the disclosure of any written concessionaire bids is required per
A. Governmental function
Initially, we find the term “governmental function,” as used in this statute, to be materially ambiguous. See generally Trizechahn Gateway LLC v. Titus, 601 Pa. 637, 653, 976 A.2d 474, 483 (2009) (recognizing that an ambiguity exists when there are at least two reasonable interpretations of the text under review). In modern times, the government has undertaken to operate various commercial enterprises, such as its systems of liquor stores and lottery games. Although in ordinary parlance it may seem incongruous to couch liquor and gambling ventures as “governmental functions,” they plainly are so in the sense that they are core activities assigned to and undertaken by government agencies. See
Some municipal authorities have come to typify the phenomenon of line-blurring between public and private enterprise, with the Stadium Authority serving as an apt example. As developed above, the Authority‘s existence and tax exempt status are justified on the ground that it performs an “essential governmental function,”
We do not see that the government‘s entry into areas which might more comfortably be associated with the private sector suggests diminished cause for openness. In this regard, it seems unlikely that that the Legislature would be naive about the potential for inappropriate influences which have become a risk attending such ventures.16 Rather, the nature of these activities, and the departures from the more conventional confines of government, appear to us to militate in favor of public scrutiny.
Moreover, the Management Agreement governing the Stadium Authority‘s relationship with Appellant is framed in such a way as to afford the latter “plenary” powers over a primary function of a government agency, essentially deputizing Appellant as an “agent” of the Authority, and specifically prescribing that certain of Appellant‘s actions “shall bind” the agency. Management Agreement § 1.2(a). In this fashion, and through the income-sharing feature of the Management
In line with these observations, we agree with Appellees and their amicus that a reasonably broad construction of “governmental function” best comports with the objective of the Right-to-Know Law, which is to empower citizens by affording them access to information concerning the activities of their government. Furthermore, as ably developed by Judge Nealon, such policy is very different from that motivating the application of the governmental-proprietary distinction as it has evolved in other settings. Accordingly, and, in the absence of specific legislative guidance, we decline to infer that the General Assembly intended to transport such construct into the open-records arena merely by employing the term “governmental function.” Accord Griffith, Escaping from the Governmental/Proprietary Maze, 75 IOWA L.REV. at 327 (“If courts apply the governmental/proprietary test without scrutinizing the actual interests at stake, they may import inappropriate standards[.]“). Rather, we conclude that it is the delegation of some non-ancillary undertaking of government, and not a convention-based assessment of the governmental-versus-proprietary character of the activity, that should control.
In offering this conclusion, we realize there is ambiguity in our use of the term “non-ancillary.” We have chosen it here, because we do agree with Appellant and its amici that the government-always-acts-as-government overlay of the East Stroudsburg majority is too broad for purposes of Section 506. We also believe the Legislature used the “governmental” function delimiter in Section 506 to narrow the category of third-party records subject to disclosure by some measure, see
To account for this consideration, and in the absence of a specific statutory degree-nexus, we find that the non-ancillary threshold represents an appropriate opening inroad into establishing an interpretive one. In this respect, we observe that this is the type of conception that is most amenable to further development over time in the decisional law. Notably, President Judge Leadbetter expressed this point in her concurrence in East Stroudsburg, as follows:
We are here faced with a new statute which embodies not only new rules, but an entirely new conceptual and procedural framework. Many of these new concepts are provided in statutory language susceptible of multiple interpretations. Compounding the problem, the new Office of Open Records (OOR) is being overwhelmed by a deluge of requests which must be decided now. Under these circumstances, there is an understandable temptation to rush to fill in the details left blank in the new law and provide immediate interpretive guidance in the form of sweeping black letter rules. Nonetheless, I believe it is necessary to take our time and address these questions with a narrow focus on the facts presented in each case and avoid broad pronouncements which may prove unworkable or unwise in different circumstances.
East Stroudsburg, 995 A.2d at 508-09 n. 4 (Leadbetter, P.J., concurring).17
The present circumstances, however, do not involve an independent contractor conducting some ancillary activity, nor do they lay in the boundaries. Rather, the Stadium Authority, having been formed to administer an amusement enterprise, generated substantial public indebtedness in such venture. Appellant has accepted delegation of the responsibility to operate the ball park for the public benefit as the Authority‘s agent. Consistent with all previous rulings in the appeal proceedings, we also have no difficulty holding that, where a government agency‘s primary activities are defined by statute as “essential governmental functions,” and such entity delegates one of those main functions to a private entity via the conferral of agency status, Section 506(d)(1) pertains on its terms to non-exempted records directly relating to the function.18
B. Records
While we have little doubt that the disclosure requirements pertaining to third-parties undertaking governmental functions may have bearing on their business decisions in dealing with agencies, this is within the range of considerations likely to have been taken into account in the General Assembly‘s open-records calculus.
The order of the Commonwealth Court is affirmed.
Justices EAKIN, BAER, TODD and McCAFFERY join the opinion.
Chief Justice CASTILLE files a concurring opinion.
Chief Justice CASTILLE, concurring.
I concur in the decision, and join much of the reasoning, of the Majority Opinion.1 The Majority affirms the decision of the Commonwealth Court, and holds that
I write separately to address the foundational notion, not specifically challenged by appellant, that the type of information requested here amounts to a “public record” within the purview of
Appellant, as the Majority relates, is a private entity and contractor for a local agency, the Multipurpose Stadium Authority of Lackawanna County (the “Authority“). The Lackawanna County Board of Commissioners created the Authority in 1985 to own and operate an amusement enterprise, specifically operations related to the sport of baseball, at PNC Field. In 2007, the Authority and appellant entered into a management contract by which they agreed that appellant would assume the Authority‘s management responsibilities at PNC Field. In 2009, appellant terminated the pre-existing food service contract, and sought bids for a replacement provider. Appellant accepted the bid proposal of Legends Hospitality LLC, and rejected two other bids.
Appellees filed a Right-to-Know Law request with the Authority, seeking disclosure of the names and written bids of all concessionaire candidates, on the premise that the information requested was a public record. See
Subsequently, appellant, after receiving notice to release the documents, intervened in the action, and filed an appeal from the OOR decision to the Lackawanna County Court of Common Pleas. Appellant raised several issues, including whether it was actually performing a governmental function as defined. Additionally, appellant argued that the information requested was not a “record,” as that term is defined in the Right-to-Know Law, Section 102.3 The trial court conducted de novo review of the matter and ordered disclosure. The Commonwealth Court affirmed. This Court accepted review of two issues: (1) whether appellant‘s operation of a professional baseball team and related concessions constitutes a “governmental function” and (2) whether the information requested by appellees constitutes a “record,” within the meaning of the Right-to-Know Law. See SWB Yankees LLC v. Wintermantel, 610 Pa. 291, 18 A.3d 1145 (2011). Both questions require interpretation of the Pennsylvania Right-to-Know Law, in general, and of Section 506(d)(1), in particular.
The Majority construes
I agree that appellant does not pursue a specific challenge to what comprises a “public record” under the Right-to-Know Law. Nevertheless, I believe some discussion of this foundational notion is appropriate, given the likely broad impact that the Court‘s decision will have on government contractors and government agencies responding to record requests and the increased administrative burden that will arise as a result.
The Right-to-Know Law provides generally for the disclosure of non-exempt and non-privileged public records upon request to the appropriate governmental body, specifically any local, Commonwealth, legislative, or judicial agency. See, e.g.,
A “public record” is broadly defined as a “record, including a financial record, of a Commonwealth or local agency.”
Any record “in the possession” of a local agency, like the Authority, is presumed to be a “public record,” and available for disclosure.
(1) A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.
Similar to requests for a public record in the actual possession of the agency, a request for a “public record in possession of a party other than the agency” must be submitted to the open records officer of the relevant agency. See
In private entity cases such as this, there is a colorable argument to be made that the type of information requested should not be subject to disclosure. As a preliminary matter, I note that part of the difficulty in cases involving records exclusively in the control of private entities stems from circumstances related to the sort of procedure followed here. Appellant did not participate in the initial phases of the disclosure process; the Authority‘s open records officer decided the request in the first instance without notice to or advocacy from appellant, whose records and information were actually at issue. The open records officer denied the request, citing as the sole basis for refusal the fact that appellant was not performing a “governmental function” on behalf of the Authority. The OOR disagreed with the officer‘s assessment on the governmental function issue raised by the agency and reversed. Appellant, arguably the more appropriate party in interest given the stakes and the nature of the dispute, intervened only after the OOR ordered release of the records and thereafter appealed the decision to the Lackawanna County Court of Common Pleas.
It is unclear whether appellant considered itself limited upon intervention and on appeal by the specific issues raised by the Authority, or whether appellant granted due deference to the reasoning offered by the agency‘s open records officer. In any event, the open records officer‘s reasoning framed the dispute between appellant and appellees in subsequent phases of judicial review. Adding to this procedural difficulty, the present iteration of the Right-to-Know Law is relatively recent, constitutes a considerable departure from the previous version of the statute, and now includes the addition of the principle articulated in Section 506(d)(1). The court that interpreted Section 506(d)(1) most recently had expressly given the term “public record” little meaning, essentially reading it out of the provision. See A Second Chance, Inc., 13 A.3d at 1036-39; accord Majority Op. at 658 n. 13, 45 A.3d at 1040 n. 13. As a result, appellant‘s primary argument here
In an appropriate case, I believe this Court should closely consider whether and/or to what extent information of a private party contracting with an agency is in fact a “public record” under the Right-to-Know Law. It is clear that the General Assembly intended Section 506(d)(1) to provide access to certain information of an agency, which happens to be in the possession of a contractor; but, it is less clear whether the General Assembly intended to recast information peculiar to the contractor as a public record of the agency. See
The term “governmental function” is a secondary normative phrase, which further narrows information subject to disclosure of any public record in any third party‘s possession to those public records in the possession of a contractor that performs a governmental function on behalf of the agency whose own records are being requested. Moreover, any public record disclosed must relate “directly” to the contractor‘s performance of that governmental function. See
To the extent that Section 506(d)(1) is ambiguous, the tools of statutory construction confirm this interpretation of the provision. The title of Section 506(d)—“Agency possession“—for example, strongly suggests that the purpose of the provision is to address possession of a public record, rather than to recast private information of a private entity as a public record. This interpretation of Section 506(d) is harmonious with the general statutory scheme: thus,
The statute offers no indication that, while access to certain public records is restricted, information of private entities/contractors is nonetheless subject to disclosure by simple association with a governmental agency—and with limited ability by the third party to participate in the disclosure process. Indeed, Section 506(d)(2) suggests the contrary, and expressly prohibits access to the private information of governmental or agency contractors, even if that contractor is also in possession of some public record. See
While the driving policy behind disclosure of public records, as defined in Section 102, is to ensure transparency in the operation of government, the calculus behind mandating disclosure of information from private contractors obviously is more nuanced. Private entities have more prominent privacy and proprietary interests, have more reticence to assume the costs of any information disclosure mechanism, and have a diluted interest in vindicating the public‘s right to know. These competing interests are evident in the lines that the General Assembly has drawn between public records and
In summary, while I concur in the Majority‘s decision to affirm, under the constraints faced here, I do not join the Opinion insofar as it can be read to foreclose consideration of what constitutes a “public record” in relation to information of a private entity, as that term is used in Section 506(d)(1) of the Right-to-Know Law.
45 A.3d 1050
COMMONWEALTH of Pennsylvania, Appellee
v.
Alexander KEATON, Appellant.
Commonwealth of Pennsylvania, Appellant
v.
Alexander Keaton, Appellee.
Commonwealth of Pennsylvania, Appellee
v.
Alexander Keaton, Cross-Appellant.
Supreme Court of Pennsylvania.
Submitted March 24, 2005.
Decided May 30, 2012.