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Pa. SC: Records for private companies can be public

By Jessica M. Karmasek | Jun 12, 2012


HARRISBURG, Pa. (Legal Newsline) - The Pennsylvania Supreme Court has ruled that private companies -- more specifically, those operating for "public benefit" -- can be required to make their records public under the state's Right-to-Know Law.

In particular, the disclosure of any written concessionaire bids is required under the recently revamped law, the Court said in its May 29 ruling.

In 2009, SWB Yankees LLC, as an agent for the Multi-Purpose Stadium Authority of Lackawanna County, terminated a then-existing food service contract for concessions at PNC Field in Moosic.

After soliciting bids from various concessions companies and reportedly receiving competing proposals, the company contracted with Legends Hospitality LLC.

Soon after, Gretchen Wintermantel, a reporter for the Scranton Times Tribune, submitted a request to the Stadium Authority seeking "access to and copies of all names and the bids submitted to (SWB Yankees LLC) for a concessionaire contract at (PNC Field)."

Wintermantel invoked the Right-to-Know Law, which generally provides for access to "public records," defined as non-exempt and non-privileged "records" of a commonwealth or local agency.

On behalf of the open-records officer, the Stadium Authority's solicitor denied the request, stating that the authority did not possess such information.

In addition, the solicitor argued that SWB Yankees was not performing a governmental function on behalf of the Stadium Authority.

Therefore, he concluded, the information was not considered a public record of the authority for purposes of the law.

Wintermantel and the Scranton newspaper appealed to the Office of Open Records, taking the position that any action by SWB Yankees as the Stadium Authority's agent is public business.

In response, the authority argued that SWB Yankees' function -- baseball park management -- was non-governmental and, thus, disclosure of its records was not implicated.

The Office of Open Records granted the appeal and directed the authority to provide the newspaper with the requested information.

SWB Yankees then lodged an appeal in the Lackawanna County Common Pleas Court, which affirmed the open records office's decision.

The company appealed again -- this time, to the Commonwealth Court.

It 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.

The intermediate court affirmed.

The state's high court, in its 27-page ruling, also affirmed.

"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," Justice Thomas G. Saylor wrote for the majority.

"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 Court noted, the management agreement governing the Stadium Authority's relationship with SWB Yankees is framed in such a way "as to afford the latter 'plenary' powers over a primary function of a government agency."

"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," Saylor further explained.

"Appellant has accepted delegation of the responsibility to operate the ball park for the public benefit as the authority's agent."

In its ruling, the Court also held that written concessionaire bids -- such as the ones requested -- are "records" under the law.

"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," Saylor wrote.

Justice Orie Melvin, who has been suspended from the Court, did not participate in the decision.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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