Reporter Denied Access to Calendars of Philadelphia Mayor and Council Members
A divided Commonwealth Court held that the calendar entries of Philadelphia’s Mayor and Council members are exempt from public disclosure under the “working papers” exemption to the RTKL. City of Philadelphia v. The Philadelphia Inquirer, — A.3d —-, 944 C.D. 2011 (Pa.Cmwlth. 2012). In an opinion by President Judge Dan Pelligrini, the four member majority found that the calendar entries, like routing slips and telephone message slips, were personal to the city officials and served no official purpose. Judge Robin Simpson argued in dissent that the calendar entries did not meet the working papers exemption because staff members used the calendar entries to schedule daily activities for the city officials. This case shows there is no bright line rule regarding whether calendars of public officials are public records, but rather that courts will look at why the calendar was created and how the calendar is used before determining whether the calendar should be open to public inspection.
The requester, a reporter for the Philadelphia Inquirer, filed a RTKL request seeking: (1) “copies of the Mayor’s daily schedule” including “appointment logs, calendars, or [the Mayor’s] daily itinerary, including public events and private meetings; and (2) “all 17 City Council members’ daily schedules.” The requester later clarified that he “was looking for the schedule generated by the Mayor and each Council office that details any appointments involving city business or public appearances attended in their role as an elected official” including “private meetings with lobbyists, other public officials or members of the public…”
The City denied the request arguing, among other reasons, that the calendar entries were exempt from public access under the “working papers” exemption. Section 708(b)(12) of the RTKL exempts “notes and working papers prepared by or for a public official or agency employee used solely for that official’s or employee’s own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose.” The Office of Open Records ordered the City to release the records, but the Court of Common Pleas reversed the OOR, agreeing with the City that the calendar entries were exempt working papers.
The majority of the Commonwealth Court’s en banc panel found that the city officials’ calendar entries were similar to routing slips and telephone message slips. The working papers exemption “covers those documents necessary for that official that are ‘personal’ to that official in carrying out his public responsibilities.” Although the calendar entries were used by the city officials for scheduling of their daily activities, they served no official purpose and were thus “personal” to the official. The majority distinguished the calendar entries at issue from daily agendas created for the express purpose of facilitating daily activities of the department.
The dissent also examined the reason the calendar entries were created and the way the calendar entries were used. In light of evidence that staff members created and used the calendar entries to schedule the city officials’ daily activities, Judge Simpson argued the calendar entries did not fall under the working papers exemption.
Due to the fact that both the majority and the dissent engaged in fact intensive analysis of the purpose and use of the calendar entries, it is clear that there is no bright line rule regarding whether calendars used by public officials are public records. When calendars are requested by members of the public, it is likely that agencies and courts will continue to engage in this type of fact intensive analysis, distinguishing between daily agendas, which are created for the purpose of facilitating the daily activities of a department, and appointment calendars, which are retained solely for the convenience of the individual public official.
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.