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July 18, 2012 | By | Posted in General News

Supreme Court ruling could be a pyrrhic victory for transparency advocates

The Pennsylvania Judicial Center in Harrisburg. A recent state Supreme Court decision regarding the state's open records law may turn out to be more restrictive than initially thought.

By Jared Sichel | PA Independent

HARRISBURG — A major court victory for transparency advocates may turn out to be more limited than it initially appeared.

The Pennsylvania Supreme Court, in SWB Yankees LLC v. Gretchen Wintermantel and the Scranton Times Tribune, agreed with a Commonwealth Court ruling that the privately owned Scranton/Wilkes-Barre Yankees minor league baseball team had to release copies of names and bids for concessionaire contracts at PNC Field, which is owned by Lackawanna County. The stadium recently received a facelift with the help of $20 million from state taxpayers.

Gretchen Wintermantel was a reporter for the Scranton Times-Tribune when, in 2009, she requested bid information from the Yankees after the team solicited bids for a new food-service contract. The team did not want to release the information but lost its case before the Court of Common Pleas and the Commonwealth Court, according to court documents.

While the Supreme Court ruled that government contractors clearly fall under the 2008 Right-to-Know Law, the justices in their May 29 decision also established a new test for when businesses can conceal documents related to their government contracts.

This was the first case the Supreme Court heard on the transparency law, which in addition to opening up most internal documents at government agencies, also made public the documents of government contractors who perform, according to the statute, “a governmental function on behalf of the agency.”

Prior to this ruling, a Commonwealth Court decision in the 2010 case of East Stroudsburg v. Office of Open Records established that virtually all of a company’s documents related to a government contract could fall within Right-to-Know Law’s scope.

But in Yankees v. Wintermantel, the high court ruled that only documents related to “non-ancillary” or core functions of government are subject to Right-to-Know. This is a seemingly minor change but lawyers say it may alter the transparency landscape significantly, depending on how future cases define “ancillary” functions.

Lawyers representing contractors and open records advocates disagree on how the ruling will play out.

William Warren is a partner at the Harrisburg office of Saul Ewing LLP, an East Coast law firm. He represents numerous companies that contract with the government and says businesses should welcome the ruling, because the high court now agrees that they can restrict access to some contract-related documents.

“It’s a new decision and a revolutionary one because it narrows the scope,” Warren said. “It really changes the understanding of how Right-to-Know will be applied.”

But until future courts determine how the “ancillary” and “non-ancillary” framework applies, businesses will have to decide on their own where the line is drawn.

If a contracted janitorial service at a state-run university, for example, does work in an on-campus day-care center, can parents request the names of the janitors?

Must a construction firm repairing a highway say from which companies it purchased its materials?

These types of scenarios, although seemingly minute, could affect the scope of the Right-to-Know Law.

Answering questions like these will be a major headache for companies, said Bret Keisling, a Harrisburg-based lawyer who represents independent business owners.

“Some businesses will have to spend thousands of dollars litigating what is ‘ancillary’ and what is ‘non-ancillary,’” Keisling said. “Ultimately, there will be more clarity, but getting there will be time-consuming and expensive.”

Melissa Melewski is the media law counsel for the Pennsylvania Newspaper Association, the official trade organization for state newspapers. While she acknowledges that future cases will determine the distinction between “ancillary” and “non-ancillary,” she credits the court with ruling that “agencies cannot be permitted to contract away the public’s right to know.”

“More and more agencies are farming out their responsibilities to private contractors,” Melewski said. “Agencies cannot be permitted to contract away the public’s right to know.”

Other transparency advocates, such as the nonprofit Sunshine Review, have a similarly expansive view of open access laws, arguing that contractors should release all documents related to their work with the government.

“When you are getting public donors and government donors and government money, then anything related to that should fall under public records laws,” said Diana Lopez, Sunshine’s senior editor.

But Warren said that requiring businesses to make public all documents connected to government contracts threatens those companies while doing little to increase government transparency.

“Furnishing the records only endangers confidential business information and trade secrets without adding anything to the public’s knowledge,” Warren said. “The additional information is marginal at best, but it’s very burdensome.”

Michael Berry, an attorney who represents media clients, said that with the exception of some national security matters, a contractor should have nothing to hide from the public.

“Hopefully, the Commonwealth Court and the Supreme Court in ensuing decisions will continue to interpret the Right-to-Know Law in a way that provides maximum access to the public,” Berry said.

Warren, though, said the open records crowd hurts its cause by trying to extend the Right-to-Know Law to all elements of a government contract.

“People who have an extreme view of access to documents are actually causing some measure of discredit,” Warren said. “They should be happy that Right-to-Know should not be interpreted in a way that creates unreasonable burden.”

 

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Eric Boehm is a reporter for PA Independent. He can be reached at Eric@PAIndependent.com or at (717) 350-0963.

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