Making Government More Accountable

Tuesday, June 25, 2013 - 09:07

The Editor interviews Karl S. Myers, Of Counsel at Stradley Ronon Stevens & Young, LLP, a Member of the Government and Public Affairs Practice Group.

Editor: Please tell me about your practice at Stradley Ronon.

Myers: In the main, I am a civil litigator who practices in the areas of appellate litigation, state government litigation, and insurance litigation. However, an interesting and significant part of my practice focuses on political law, including Pennsylvania’s Right-to-Know Law – which involves requests by citizens and other interested parties for government records under the state’s open records statute.

Editor: Do other states have open records statutes? It struck me as unique to Pennsylvania that every one of the administrative bodies has an open records officer, along with a central open records office.

Myers: Pennsylvania’s law, which is relatively new, is unique – I don’t believe there is a direct analogy to any other state. The law required the creation of a new Office of Open Records, which handles appeals from agency decisions granting or denying access to records. The law also required government agencies to appoint an individual to be responsible for all open records requests submitted to that agency.

Editor: What does your Pennsylvania Right-to-Know Law practice involve?

Myers: It is essentially a twofold enterprise. First, much of my practice is devoted to representing third parties whose records have been requested pursuant to Right-to-Know requests. Government agencies often hold sensitive third-party information, such as trade secrets and other confidential information that really belong to third parties. I have been engaged by some of those third parties to enter into those open records proceedings to assert their interests and advocate on their behalf to protect their sensitive information from disclosure. As a matter of fact, I represented third parties of this type in the first-ever public hearing held before the Office of Open Records, held in Harrisburg in May of last year. The parties put on witness testimony at that hearing focused on the question of the secrecy and confidentiality of my clients’ information. That case continues in litigation to this day.

The other part of my Right-to-Know practice involves counseling government entities or government-related entities on complying with the law. This can include helping them write their responses to requests for records and counseling and advising them as to whether certain records in question could be subject to disclosure. So, on the government side, my role is more of a counseling function – to help clients comply with the law and understand how documents they are generating may be subject to the law’s disclosure requirements.

Editor: Can you give us some more background on the Right-to-Know Law itself, in particular respecting the current open records environment in Pennsylvania?

Myers: The Right-to-Know Law is still fairly new, as it was enacted in 2009. It has represented a sea change in open records law here in Pennsylvania. The prior Pennsylvania law on the subject was widely viewed as antiquated and as failing to achieve the mission of government transparency. The new law was designed to change that dynamic. The old law seemed to presume government records were not subject to disclosure, whereas the new law starts from the premise that government records are to be disclosed. Now, the burden is on the agency or third parties to show why the records are not subject to disclosure. So the new law essentially flips the earlier analysis on its head.

But since the burden of proof has shifted in the opposite direction, a lot of litigation has been created – on virtually every front. Agencies, third parties, and the courts have been working towards the objective of determining what the rules of the road are under this new regime. This has been a challenge for the courts. The Commonwealth Court – which is where appeals in open records cases go – has a significant docket of Right-to-Know Law cases. The court has been struggling with how the law should be interpreted and applied, as there have been many split decisions in open records cases. Only a few cases have reached the state Supreme Court. The most significant of those is Bowling v. Office of Open Records, which was argued before the court in late 2011. That case, once it is decided, hopefully will dictate many of the rules for how Right-to-Know requests are to be handled.

Editor: You wrote a recent article contending the Pennsylvania Commonwealth Court’s Gaming Control Board v. Office of Open Records decision created an open records waiver trap for the unwary. Why do you think that is the case?

Myers: The Gaming Control Board case was decided on a 4-3 vote by the Commonwealth Court, so there was a significant amount of discord among the judges in reaching that decision. Again, this illustrates that the court is continuing to struggle with the best way to apply this new law. The court’s holding in the case was threefold: first, that an open records request does not have to be directed to the agency’s open records officer; second, that it does not have to use the agency’s form for open records requests; and third, that it does not even need to invoke the Right-to-Know Law by name. The danger I saw in those holdings, taken together, was the possibility that an agency might completely overlook a Right-to-Know Law request. Under the law, the agency is required to respond to requests within five days, or potentially waive all exemptions to disclosure. If the request is not directed to the right person at the agency, does not use the right form, and does not even mention the Right-to-Know Law, it might end up in the hands of an agency employee who does not know anything about the Right-to-Know Law. This creates the potential for a waiver by the agency – and also the third parties, who rely on the agency to notify them about requests for disclosure of their sensitive information. My concern about the outcome in that case was echoed by the three dissenting judges. President Judge Pellegrini, who wrote the dissent, framed a colorful image: that a records request to the Department of Transportation, written on the back of a brown paper bag, and handed to a plow driver by the side of the road on a snowy winter night, now would have to be considered a valid Right-to-Know Law request. And Judge Pellegrini was right – under the holding of that case, a very informal request like the one he described now had to be considered a legitimate request.

Fortunately, my concerns about that case have been allayed by two more recent cases. First, in a case called Office of the Governor v. Donahue, the Commonwealth Court clarified its opinion in the Gaming Board case, stating that the five-day response time for an agency does not begin to run until the request actually reaches the agency’s open records officer. This essentially negated my concern about the waiver trap, because once the request reaches the open records officer, it is in the right hands and should be handled appropriately. In addition, in a recent decision, the Pennsylvania Supreme Court in Levy v. Senate of Pennsylvania stated that even if the agency misses the five-day response deadline, or does not state all defenses to disclosure in its response to a request, the agency still does not waive all exemptions to disclosure. I expect these two decisions to provide a safe harbor against many waiver claims.

Editor: What other recent case decisions have been issued under the Right-to-Know Law that our readers might want to know about?

Myers: Aside from the Donohue and Levy cases, another significant issue under the Right-to-Know Law is the issue of agency possession. A number of clients have been dealing with this issue for some time. The Right-to-Know Law reaches not only records that are physically held in the possession of the agency, but also goes one step further and deems some records held by third parties as tantamount to being held by the agency – even though, technically, they are not in the agency’s hands. The question of agency possession turns, in part, on whether the records in question “directly relate” to the governmental function that the third party has been contracted to carry out. There has been a great deal of controversy over what “directly relates” to a government function. Our Supreme Court recently dealt with this issue in a case called SWB Yankees v. Wintermantel. In that case, the court said that agency possession is a question of what is “ancillary” versus what is “non-ancillary” – that is to say, if the government entity had delegated some “non-ancillary” government function, then the records could be deemed agency records. While this might seem to substitute one ambiguous standard for another, the court said it was necessary to leave the test vague in order to let future cases put a finer point on what it means for there to be agency possession. We are now in the process of litigating those future cases.

Editor: Are there any other Right-to-Know Law developments of interest?

Myers: In addition to the case decisions, there have been a number of legislative proposals to amend the law. The principal proposal is Senate Bill 444, which was introduced by State Senate Majority Leader Dominic Pileggi. That bill proposes comprehensive revisions to the law. A hearing was recently held on this bill, and it is currently in committee. That bill, and a number of others, also deals with the issue of whether colleges and universities in Pennsylvania that receive state funding should be subject to the Right-to-Know Law. There has been a significant push, in the wake of the Jerry Sandusky scandal, to make colleges and universities like Penn State subject to the Right-to-Know Law. However, it is difficult to say if, when, and in what form these various proposals to change the law will be enacted.

Editor: At the beginning of our discussion, you mentioned you practice in the area of political law. Are any other aspects of that practice similar to the Right-to-Know Law?

Myers: Yes. I also handle matters pertaining to the Pennsylvania Sunshine Act, a close cousin to the Right-to-Know Law. The Sunshine Act generally requires that governmental bodies in Pennsylvania conduct many proceedings in a public fashion. Most of the law’s provisions are fairly straightforward and the law has been well settled. However, one issue that continues to pose a challenge is what constitutes deliberative activity that must take place in public. Recently, the Supreme Court of Pennsylvania agreed to hear a case, Smith v. Richmond Township, that deals with this question of deliberations. In that case, a quorum of a township board of supervisors met in private with two litigation adversaries in order to decide if the township would sign off on a settlement that affected the township. The question to be resolved is whether that meeting was supposed to happen publicly. Hopefully, in deciding that case, the Supreme Court will deliver some clarity as to what needs to happen in public and what can happen in an executive session under the Sunshine Act.

Editor: Do you see a general trend in this country in favor of passing more open records or sunshine laws that favor disclosure?

Myers: If Pennsylvania is any indication about where we’re heading as a nation, I think the answer is yes. Our citizens seem to be interested in more transparency as a vehicle to obtain more accountability. In Pennsylvania, we have seen a serious effort towards transparency. The difficulty is striking the right balance between transparency, on the one hand, and other important interests, such as the homeland security, privacy interests of individuals, and the proprietary interests of third parties who deal with the government, on the other hand. The process of finding the right balance is part of the growing pains of this new law.

 

Please email the interviewee at kmyers@stradley.com with questions about this interview.