After a year and a half wait, a newspaper reporter is one step closer to receiving documents requested pursuant to the Right-to-Know Law. The Commonwealth Court has issued an opinion affirming a final determination of the Office of Open Records and the order of the Lackawanna County Court of Common Pleas, both of which directed the SWB Yankees to disclose copies of bids received for a baseball stadium concessionaire contract. This decision provides guidance regarding the accessibility of records that are created by third parties pursuant to contractual relationships with government agencies.
On January 28, 2009, Times-Tribune reporter Gretchen Wintermantel submitted a request to the Multi-Purpose Stadium Authority of Lackawanna County (Authority) for copies of bids that the SWB Yankees solicited to fill a concessionaire contract at the Lackawanna County Stadium. The Authority issued a letter denying the request, alleging it did not possess the records and that the bids were not a public record. Wintermantel appealed to the Office of Open Records, which issued a Final Determination directing the SWB Yankees to produce the requested records. The SWB Yankees appealed to the Lackawanna County Court of Common Pleas. The Honorable Terrance R. Nealon issued an Opinion affirming the Final Determination of the Office of Open Records.
In an appeal filed with the Commonwealth Court, the SWB Yankees argued that the concessionaire bids did not qualify as a third-party public record as defined by Section 506(d)(1) of the Right-to-Know Law. This section states:
A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.
65 P.S. §67.506(d)(1). The SWB Yankees asserted that the concessionaire bids did not fall under this section because the operation of a baseball stadium is not a governmental function.
The Commonwealth Court did not agree, and held that the SWB Yankees’ operation of a baseball stadium is the government function. Judge Johnny J. Butler, on behalf of a unanimous panel, noted that the Authority was created to perform the government functions of increasing commerce and prosperity and improving health and living conditions. The Authority contracted the operation of baseball and entertainment events to the SWB Yankees. The SWB Yankees concessionaire sales clearly affected the amount of revenue generated by the authority. As explained in more detail in Judge Nealon’s opinion, the amount of money ultimately received by the County is dependent upon the annual profit generated by SWB Yankees. The SWB Yankees provide the Authority with an annual payment that is equal to one third of the SWB Yankees’ annual collected net income. This annual payment is the sole means the Authority has to relieve debts owed to County.
The SWB Yankees have thirty days from July 22, 2010 to appeal to the Pennsylvania Supreme Court. It is interesting to note that the SWB Yankees have apparently abandoned an argument that the concessionaire bids contained confidential and proprietary information and trade secrets, which, if released to the public, would have damaged the bidders.
Disclaimer: This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group. The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law. THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE. The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”. The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.