East Stroudsburg University Foundation v. Office of Open Records
Commonwealth Court of Pennsylvania
No. 886, C.D. 2009
ALSO:
East Stroudsburg University of Pennsylvania v. Office of Open Records
No. 908, C.D. 2009
Dow Jones Local Media Group, Inc. and Dan Berrett v. Office of Open Records
No. 1007, C.D. 2009
May 24, 2010
The Commonwealth Court determined that fundraising records of a foundation established solely to raise funds for a state-owned university are accessible to the public under the Right to Know Law because the records are directly related to the government function performed by the foundation.
The court also ruled that the Office of Open Records has no standing to participate as a party in appeals of its decisions.
Background
Dan Berrett, a reporter for the Pocono Record, submitted a Right to Know Law request to East Stroudsburg University seeking records and information held by the ESU Foundation relating to some of the school’s donors as well as the foundation’s board of directors’ meeting minutes.
ESU denied the request, stating that the foundation does not perform a governmental function for ESU.
Berrett appealed to the Office of Open Records.
In its final determination, the OOR ruled that Berrett should receive the donor records held by the foundation with donors’ names redacted, but that he could not get copies of the foundation’s meeting minutes.
Both sides filed appeals with the Commonwealth Court.
Commonwealth Court Decision
The Commonwealth Court stated that the Right to Know Law “requires access to contractor records directly related to a governmental function.”
Here, the foundation was created to perform fundraising activities for ESU, which is part of the State System of Higher Education and thus subject to the RTKL.
The court determined that the foundation performed a governmental function for ESU under its contract as the school’s fundraising arm.
As the court explained, “all contracts that government entities enter with private contractors necessarily carry out a ‘governmental function’ – because the government always acts as the government.”
Nevertheless, the only records that are accessible are records that “directly relate” to the government function performed by the contractor, “not other records that a contractor maintains in during the normal scope of business.”
The court held that the fundraising and donor records directly related to the foundation’s work for ESU and therefore are public records. (Berrett did not challenge the OOR’s ruling that the foundation could redact donors’ names from the records.)
Next, the court determined that the parts of the foundation’s meeting minutes related to raising and disbursing funds for ESU are public records. Though the foundation is a nonprofit whose minutes are generally not publicly accessible, the court ruled that because the foundation performs a governmental function, any parts of its minutes related to that function are public records.
Finally, the court ruled that because the OOR is charged with resolving appeals like a judicial body, it cannot participate in court appeals when someone challenges its rulings.
May 24, 2010 — Commonwealth Court Opinion — No. 886, C.D. 2009