In the two years since Pennsylvania enacted its new Right-to-Know Law, litigants have seemingly tried to stretch the law into a form of private discovery. Right-to-Know requests are pushing private, third-party entities to open up their records. Recently, the Commonwealth Court of Pennsylvania issued the strongest rebuke against such efforts.
In its recent decision, the Court firmly rejected the notion that the Right-to-Know Law applies to board minutes and other corporate records of private nonprofits and businesses simply because a public official serves on the board of directors of such an entity. The decision rejected a determination by the Office of Open Records that records of the Independence Visitor Center Corporation, represented by Ballard Spahr attorney Michael D. Fabius, should be released.
“We cannot fathom how the General Assembly could have intended to open up the records of a private entity based solely on some marginal connection between that private entity and a government agency or public official,” the Court stated in its decision.
The Court also faulted the process used by the Office of Open Records—specifically for applying an “unannounced and erroneous standard” for determining when information is confidential and proprietary and for failing to afford any process, such as a hearing or in camera review, to the agency or the third-party participant. As a result, the Court sent the case back to the Office of Open Records, ordering it to hold its first-ever hearing.
The decision also crystallized the two-step process for succeeding in a Right-to-Know appeal. First, the burden of proof is on the requester (with the good faith assistance from the government agency) to demonstrate that the sought after information is the type of governmental information that is subject to the Right-to-Know Law. Second, the burden then shifts to the government agency to demonstrate that the sought after information is exempt. This is particularly important for private nonprofits and businesses because, with this recent decision, the burden is now squarely on the requester when the requester tries to stretch the law beyond the governmental records for which it was intended.
The impact of this decision on private third parties who interact with government is significant. Although the Right-to-Know Law continues to strengthen citizens’ access to government records, this decision reinforces the protection appropriate for third-party private records.
Ballard Spahr’s Government Relations, Regulatory Affairs and Contracting Group continues to track efforts to wield the Right-to-Know Law against private third parties, and assists private clients with understanding how the law affects them in their interactions with government and government officials. For more information on this decision or how the Right-to-Know Law affects you, contact Michael D. Fabius, 215.864.8246 or fabiusm@ballardspahr.com, or any other member of the Group.
Copyright © 2011 by Ballard Spahr LLP.
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