Pa. officials may keep schedules secret, judges rule

Commonwealth Court rules that the calendars for Philadelphia's mayor and City Council members fall within the 'notes and working papers' exception of the state's Right-to-Know Law.

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A divided Commonwealth Court ruled that the calendars for Philadelphia Mayor Michael A. Nutter and the 17 members of City Council are exempt from the state's Right-to-Know Law. A Philadelphia Inquirer reporter had requested the daily schedules.

The court was divided 4-3.

President Judge Dan Pellegrini, writing for Judges Bonnie Brigance Leadbetter, Renee Cohn Jubelirer and Anne E. Covey, agreed with the trial court's reasoning that the calendars are exempt under the Right-to-Know Law exemption for "working papers."

That exemption applies to "notes and working papers prepared by or for a public official or agency employee used solely for that official's or employee's own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose," according to the opinion.

Judge Robert Simpson wrote the dissenting opinion, joined by Judge P. Kevin Brobson; Judge Patricia A. McCullough dissented as well, without joining the dissenting opinion.

For the majority, Judge Pellegrini wrote: "The purpose of the calendars as set forth by the affidavits personal to the mayor and City Council members are used for scheduling their daily activities and fall within the 'notes and working papers' exception."

The court cited the persuasive authority of a U.S. Court of Appeals for the D.C. Circuit case from 1984, Bureau of National Affairs Inc. v. U.S. Department of Justice, for the proposition that there is a difference between daily agendas circulated to all staff for business purposes, and apportionment calendars retained "solely for the convenience of individual officials" and not in general distributed to staff.

"After reviewing the affidavits, we agree with the trial court that the requested documents are appointment calendars because they were created solely for the convenience of the mayor's and City Council members' personal use in scheduling daily activities and were not circulated outside of the official's office," the majority said.

In dissent, Judge Simpson said the informal working papers exception only applies to working papers used by the official alone.

The Office of Open Records had said that the daily schedules were not work papers prepared solely for the personal use of the city officials, and were accessible by staff in each of their offices and -- in the case of the mayor -- the mayor's security detail.

The office also said that the calendars were not exempt, but the office decision was reversed in the Philadelphia Court of Common Pleas.

Eleanor N. Ewing of the city's law department said she could not immediately comment without authorization and one of the newspaper's attorneys, Amy B. Ginensky of Pepper Hamilton, did not respond immediately to a request for comment.

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Amaris Elliott-Engel: aelliott-engel@alm.com or 215-557-2354. To read more articles like this, visit www.thelegalintelligencer.com.


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