Office of the Governor v. Bari
Commonwealth Court of Pennsylvania
No. 2170 C.D. 2010
May 4, 2011
The Commonwealth Court ruled that: (1) meeting minutes for the board of directors of a private non-profit are not public records under the Right to Know Law even though a government official appointed a member to the board; (2) a second request for the same records is not a disruptive request under the law, even if an agency faces budgetary constraints and the request consumes attorney and staff time; and (3) the Office of Open Records should have conducted a hearing to determine whether records were protected by the law’s exemption for confidential proprietary information.
Background
Jonathan Bari submitted a Right to Know Law request to the office of the governor seeking documents related to the Independence Visitor Center Corporation (IVCC) and the governor’s appointed representative to the IVCC’s board of directors. The governor approved much of the request, but refused to disclose two sets of documents: (1) minutes of IVCC’s board meetings, which the governor claimed were not public records because they related to a private non-profit; and (2) documents that purportedly contained confidential proprietary information. Bari did not appeal the denial of those requests.
Bari then submitted a second RTKL request to the governor’s office seeking the same records denied in his first request. The governor denied the request for the same reasons as the first request and contended that the second request was prohibited as a “disruptive request” under the RTKL.
Bari appealed the second denial to the Office of Open Records. Without a hearing, the OOR ruled that the Governor should have granted Bari’s request in full. The Governor and IVCC appealed to the Commonwealth Court.
Commonwealth Court Decision
The Commonwealth Court first held that the minutes of IVCC’s board meetings were not public records. The court noted that IVCC is a private, non-profit, not a government agency, and records relating to its meetings do not become public merely because public officials appoint some of its board members. As the court explained, IVCC’s meeting minutes were not “created, received or retained . . . in connection with a transaction, business or activity” of the government. Moreover, the governor’s office had stated that it did not even possess the meeting minutes, and, according to the Court, Bari bore the burden of establishing that the minutes were in the governor’s possession, a burden he failed to meet.
Next, the court rejected the governor’s claim that Bari’s requests were disruptive. Under the RTKL, a request is considered disruptive only if it is both repetitive and unreasonably burdensome. Here, Bari’s requests were repetitive, but the governor failed to show they were unreasonably burdensome.
While the governor argued that the second request “was made during a time of budgetary and staffing constraints” and that the governor’s office was forced to expend “duplicative staff and attorney time” to respond to the request, the court ruled that the governor had not explained what efforts his staff made to respond to the request and essentially asked the court to rule that any repetitive request made during tough times for budgets and staff would be deemed unreasonably burdensome. As the court wrote, “this we will not do.”
Finally, the court addressed the governor’s claim that the other documents Bari had requested were covered by the RTKL’s exemption for confidential proprietary information. To qualify for this exemption, the records must contain “commercial or financial information . . . which is privileged or confidential; and the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.”
The court criticized the OOR for determining that the office’s and IVCC’s detailed affidavits provided insufficient evidence that the records should be protected by the exemption without first holding a hearing or reviewing the documents. Stating that the OOR “should take all necessary precautions . . . before providing access to information which is claimed to reveal ‘confidential proprietary information,’” the court characterized the OOR’s failure to conduct a hearing or review the documents for itself as “confounding.”
The Court therefore sent the case back to the OOR and instructed it to hold a hearing to determine whether the records contained confidential proprietary information.