Spring 2007
Attorneys' Fees Granted for Agency Lack of Reasonable Basis for Withholding Records
After 18 months of legal battles at the agency and appellate court levels, culminating in the denial of its appeal to the Pennsylvania Supreme Court, the Pennsylvania Higher Education Assistance Agency (PHEAA) has been ordered by the Commonwealth Court to provide the records that Reporters Jan Murphy of The Patriot-News, Martha Raffaele of the Associated Press and Jim Parsons of WTAE-Pittsburgh requested in the Summer of 2005 under the Right to Know Law (RTKL), 65 P.S. �66.1 et seq.
The Reporters sought expense vouchers for the Board Retreats from 2000-2005, and all other travel-related expenditures and related documentation incurred by PHEAA staff and Board members, which include state legislators. PHEAA had released the total cost of the Nemacolin Retreat in June 2005 as $135,637.74, but refused to provide the actual receipts, expense reports and other documentation showing the breakdown of charges. PHEAA had withheld the requested records under three asserted exceptions: 1) the records contained trade secrets protected from disclosure under the Uniform Trade Secrets Act; 2) the records were "legislative records" because the PHEAA Board was partially comprised of legislators; and, 3) the personal security exception for any confidential or personal information. The Reporters agreed to redaction of any personal information to include credit card numbers, account numbers, Social Security numbers, telephone numbers or addresses, if any, but refused to provide a single page of the over 30,000 pages of predominantly public records. On appeal from PHEAA's determination, the Commonwealth Court found PHEAA's basis for withholding all records and noncompliance with its mandatory duty to disclose at least redacted records to warrant attorneys' fees under the RTKL, 901 A.2d 177 (2006).
For the first time since it was amended in 2002, attorneys' fees and costs were awarded against an agency under �66.4-1 of the RTKL. The Commonwealth Court determined that the three asserted grounds for excepting the records from mandatory disclosure were unreasonable and contrary to law and that the records must be disclosed. Although the Court indicated legitimate and proven work product of PHEAA could be redacted if it proved it was secret and of competitive value, the Court retained jurisdiction to monitor such claims and release of the documents. PHEAA did not comply with the Court' Order and refused to disclose any records to Reporters, and appealed the Court's decision to the Supreme Court in December.
Due to its continued refusal to disclose records, Reporters filed a Petition to Enforce, which was granted by the Commonwealth Court on January 12, 2007. The January Order required that within 14 days, PHEAA provide the Court a log of any records it has supplied to the Reporters, explaining its redactions, with such log to be supplemented at one week intervals until all responsive records were provided to Reporters by February 16, 2007. Because the January Order also denied PHEAA's request to have the November Order certified as "final," PHEAA then filed a Petition for Review with the Supreme Court and filed an Emergency Application for Stay of the Commonwealth Court's Orders. A stay was granted on a temporary basis until the Supreme Court reviewed the arguments of both sides.
Reporters were again successful in defending against PHEAA's attempt to shield records from public view when, on February 22, 2007, the Pennsylvania Supreme Court denied PHEAA's Petition for Allowance of Appeal. The Supreme Court also lifted the Emergency Stay, thus permitting the Commonwealth Court to proceed with enforcing its earlier orders in Reporters' favor, and requiring that public records be disclosed to the Reporters with minimal redaction of only those trade secrets in which PHEAA could show a competitive advantage. This March, Reporters finally had the opportunity to review the public records, from which PHEAA redacted information that it deemed "confidential" trade secrets.
Salary Information Is a Public Record- Will the Supreme Court Agree?
The Patriot-News requested salary information for numerous Pennsylvania State University (PSU) officials, including football coach Joe Paterno, from the State Employees' Retirement System (SERS) under Pennsylvania's Right to Know Law. When the university was notified of the request, they objected, arguing that the release of salary information would compromise the employees' privacy. A review by SERS determined the information could be released as public records and the University appealed.
Craig Staudenmaier represented The Patriot-News and reporter, Jan Murphy, before both the SERS Board and the Commonwealth Court. Mr. Staudenmaier argued that Penn State University employees who elect to join SERS are eligible for SERS benefits and are considered "state employees" under the applicable law, which makes their salaries public information. The Right to Know Law grants the public access to the salary information for state employees.
The Commonwealth Court affirmed the earlier decision of SERB, PSU v. SERB, 880 A.2d 757 (2005). The majority agreed with the media and held that salary and date-of-service information was a public record because it was essential to a determination of the contractual obligation of SERS to provide vested pension benefits to Penn State employees who participated in SERS. The Court further held that none of the exceptions under the Right to Know Law applied to the requested information as the knowledge of salary information alone did not represent a threat to the personal security of the individual employees, did not violate any recognized privacy interests nor was it information that could be shielded by statute.
The University appealed the Commonwealth Court's decision to the Pennsylvania Supreme Court, which granted the appeal in September. The matter has been briefed and is ripe for decision. Oral argument before the Supreme Court will be held in Harrisburg on May 14th where Craig Staudenmaier will be arguing the case for The Patriot-News.
Pennsylvania Treasury Department Agrees to Release Records of House Employees
Patriot News reporter Jan Murphy filed a Right to Know request to the Pennsylvania Department of Treasury for certain public records of the Department dealing with the disbursement of funds to employees of the House of Representatives during a specific two week period in January 2007. The Department denied the request indicating that although it was an agency subject to Right to Know law, the House was not and this created an ambiguity in the law that the courts would need to resolve.
Craig Staudenmaier represented the paper and Ms. Murphy and, after meeting the Department officials and attempting to demonstrate to them that these records in the Department's possession were clearly public records and that the law was not ambiguous as contended, filed exceptions to the Department's continuing denial. The Department later reversed its position and agreed to release the requested records after also receiving notice from the House leadership that it had no objection to the release of these public records.
For more information about the Right to Know Law, contact authors Craig Staudenmaier at cjstaud@nssh.com or Lucinda C. Glinn at lcglinn@nssh.com.
Disclaimer and IRS Circular 230 Notice:
The material on our website and in this newsletter has been prepared for informational purposes only. It does not constitute legal advice, and transmission of information from this site is not intended to create, nor does its receipt constitute, an attorney-client relationship between Nauman Smith Shissler and Hall, LLP and the visitor to this site. The information contained in this newsletter is not intended as tax advice. As required by IRS Circular 230, we inform you that any information contained in this newsletter is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties under the Internal Revenue Code or for the purpose of promoting, marketing or recommending to another party, any tax-related matter addressed herein.
Nauman Smith Shissler & Hall, LLP
200 North 3rd Street, 18th Floor
Harrisburg, PA 17101
717.236.3010
fax: 717.234.1925
info@nssh.com