Office of the Budget v. Office of Open Records
Commonwealth Court of Pennsylvania
No. 768, C.D. 2010
January 6, 2011
The Commonwealth Court ruled that an agency is not required to provide access to records merely because those records are under its “control.” Only records that are in the agency’s possession – or that are held by a government contractor and directly relate to a government function – can be considered “public records” under the Right to Know Law.
Background
Barry Senseman submitted a Right to Know Law request to the Office of the Budget seeking weekly payroll certifications from a government contractor working on a public works project.
The office rejected the request, stating that the records were not in its possession and that the records did not directly relate to a government function.
Senseman appealed to the Office of Open Records. The OOR held that because the office had the authority and duty to audit the contractor under the Pennsylvania Prevailing Wage Act, the office had “custody and control” over the certified payroll records. As such, the OOR ordered their disclosure.
The office appealed to the Commonwealth Court.
Commonwealth Court Decision
According to the court, records that are “not in the possession of an agency” are not presumed to be public records under the law.
Records that are held by government contractors and which directly relate to a government function also are accessible under the law
In this case, the requested records were held by a government contractor, but there was no argument that the records did not directly relate to a government function.
The court explained that although the office had “the right to audit these payroll records, there is no evidence that they have ever been in [its] possession or that [the office] is attempting to play some sort of shell game by shifting these records to a non-governmental body.”
Consequently, the court held that the office properly denied Senseman’s request.