Pa. High court rules records for private firms can be public
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The state Supreme Court has ruled that private companies doing public good must make their records available under the state's Right-to-Know Law.
The justices were unanimous in the result, affirming a Commonwealth Court decision that held that a private, third-party government contractor that operates a sports and entertainment venture can be required to make contract information public.
Justice Thomas G. Saylor, writing for the majority, said plaintiff SWB Yankees' records are public because the Multi-Purpose Stadium Authority of Lackawanna County, a governmental agency, hired it as a private contractor to run PNC Field in Moosic, Pa.
"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," the Right-to-Know Law is applicable," Justice Saylor said.
Justice Saylor was joined in the result by Chief Justice Ronald D. Castille and Justices J. Michael Eakin, Max Baer, Debra Todd and Seamus McCaffery.
Justice Joan Orie Melvin, who is currently suspended from the court, did not participate in the decision.
Justice Castille wrote separately to note that while he agreed with the majority that SWB Yankees did not specifically challenge what constitutes a "public record" under the law, he was "skeptical of the notion that the General Assembly drafted the RTKL with the intent to recast information of a private entity as a public record."
According to court papers in SWB Yankees v. Wintermantel, Wintermantel and The Scranton Times-Tribune newspaper filed an open records request with the Stadium Authority in January 2009, seeking copies of concessionaire contract bids for PNC Field submitted to SWB Yankees.
The authority told Wintermantel and the newspaper that it did not have those records and that, while SWB Yankees might have them, the information would not be considered public record because SWB Yankees was not performing a "governmental function" for the authority.
The newspaper appealed the decision to the Office of Open Records and won. SWB Yankees appealed that decision and lost at the trial court level, with Lackawanna County Common Pleas Judge Terrence R. Nealon ruling that SWB Yankees' records are public because it performs a "governmental function" on behalf of the Stadium Authority.
On appeal to the Commonwealth Court, a three-judge panel in 2010 rejected an argument that the plain meaning of "governmental function" does not encompass sports and entertainment. Rather, the panel held that such events could qualify as "governmental functions" because the contractor was hired by a governmental authority created "for the benefit of the people of the Commonwealth."
Former Judge Johnny J. Butler, in his analysis, noted that the old Right-to-Know Law required such a contractor to be doing an "essential government function" and ruled that the striking of the word "essential" indicated an intent "to lower the restrictions placed upon the disclosure of records held by agencies."
"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," Judge Butler wrote.
In the Supreme Court's majority opinion issued May 29, Justice Saylor had a similar take, saying the Stadium Authority bestowed upon SWB Yankees the "primary function of a government agency, essentially deputizing [SWB Yankees] as an 'agent' of the Authority ... 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."
Counsel for Wintermantel and Times-Tribune, John T. Hinton Jr. of Haggerty McDonnell & Hinton in Scranton, said he thought the ruling would have a "wide-ranging impact" on the Right-to-Know Law in Pennsylvania.
"I thought the majority court, through Justice Saylor, did an excellent job in analyzing the issues and trying to give the public at large some direction as to how Right-to-Know requests are going to be handled with regard to government contractors," he said.
SWB Yankees' attorney, Jayne Anderson Risk of DLA Piper in Philadelphia, said she and her client were "very disappointed" with the ruling.
"We disagree with the reasoning and the holding in terms of the interpretation of the legislation," she said.
First Published June 11, 2012 12:00 am