Allegheny County Department of Administrative Services v. A Second Chance, Inc. v. Parsons
Commonwealth Court of Pennsylvania
No. 825 C.D. 2010 & No. 873 C.D. 2010
February 16, 2011
The Commonwealth Court ruled that a county court has discretion over whether to allow a government contractor to participate in an appeal from an Office of Open Records decision concerning its records.
The court also ruled that more information was needed to determine whether records showing the names, birth dates, and hire dates of the contractor’s employees directly related to its performance of a government contract.
Background
Jim Parsons, an investigative reporter for a Pittsburgh television station, submitted a Right to Know Law request to Allegheny County’s Department of Human Services seeking payroll lists of A Second Chance, Inc. (ASCI), a contractor who performs services for the county.
The county provided Parsons with payroll figures, but did not provide employees’ names, birth dates, or hire dates, claiming that it did not have control of those records.
Parsons appealed to the Office of Open Records, which ordered the county to retrieve the records from ASCI and disclose them to Parsons.
The county appealed that decision to a county court, which said that ASCI could participate in the appeal and then held that the county must provide the requested records for all employees who performed work on behalf of the county.
The county and ASCI appealed to the Commonwealth Court.
Commonwealth Court Decision
The Commonwealth Court first determined whether ASCI was a proper party to the case because it was neither a requestor nor an agency.
The county court allowed ASCI to participate in the case as an “intervenor.” An intervenor is a third party with a direct interest in the litigation. The RTKL states that someone must request to be an intervenor within 15 days of learning of an appeal to the OOR or before the OOR makes its decision, whichever occurs first.
In this case, ASCI did not seek to intervene before the OOR issued its decision, and the RTKL does not say whether a person can become an intervenor if the case is appealed to court.
As a result, the Commonwealth Court held, the decision to grant the ASCI’s request to intervene was within the county court’s discretion, and the county court did not abuse that discretion in this case because the appeal dealt with ASCI’s records.
Next, the court was asked to determine if the requested information was a “record” under the RTKL.
The court ruled that the information was a record, as it documented the existence of a contract between the county and ASCI, and because it was “created, received, or retained” in connection with that contract.
Once the court determined the information to be a record, it had to consider whether it was a “public record.”
Even though the requested information was not in the county’s possession, the court held that it still may be a “public record,” but only because if it is possessed by a government contractor and only if it directly relates to the government function performed by the contractor.
In this case, the county court had not determined whether the requested information directly related to the government function performed by ASCI.
Consequently, the Commonwealth Court sent the case back to the county court to make that determination.
Finally, the court ruled that the county court also could reassess whether the requested information concerning employees’ names, birth dates, and hire dates fell within the RTKL’s personal security exemption. To qualify for this exemption, ASCI and the county must prove that disclosure of the records “would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”