It is not often that the Commonwealth Court reverses the Office of Open Records (“OOR”) and orders the release of records which the OOR found not to be public. Such a situation occurred in the recent decision of a panel of the Commonwealth Court in Johnson v. Pennsylvania Convention Center Authority, No. 1844 C.D. 2011 (August 1, 2012). Writing for the panel, Judge McGinley reversed the final determination of the OOR which upheld the Pennsylvania Convention Center Authority’s (“PCCA”) denial of requests for information concerning the PCCA and the various labor unions who perform work at the Convention Center. Johnson had requested “any” documents from 2003 to the present that involved an agreement between the PCCA, its labor unions and “labor supplier” regarding jurisdictional disputes, complaints and the resolution of same. Despite the breadth of the request, there did not appear to be any claim that the requests were insufficiently specific.
Rather, the PCCA denied the request for these documents under Sections 708(b)(7) and (17), the “grievance material” and “non-criminal investigation” material exemptions. The Commonwealth Court rejected both of these as proper bases to deny the request.
Central to the court’s decision was that both provisions, 708(b)(7)(vi), (vii) and (viii) specifically provide that the exemption pertains to records “relating to an agency employee”. The court held that this exemption only applies to grievance and disciplinary matters between an agency and its individual employees. It does not apply to records such as this which pertain to jurisdictional disputes among various trade unions who supplied services to the Convention Center under an agreement. The PCCA and the various labor unions that provided such services were parties to an agreement known as the Customer Satisfaction Agreement (“CSA”), and this agreement contained provisions relating to how disputes over jurisdictional labor issues would be resolved. The CSA was also incorporated into all the trade union collective bargaining agreements.
The court found that the requested records did not pertain to criticisms, complaints or decisions involving individuals but rather pertained to the jurisdictional disputes among the trade unions themselves. Here, there were no privacy issues of an individual involved and thus the exemption provision did not apply. The court held that 708(b)(7) only exempted grievance materials relating to employees of the agency.
The court also found that the non-criminal investigation exemption of 708(b)(17)(i) did not apply as this exemption only pertains to investigations that were conducted as “part of an agency’s official duties.” Contrasting this situation with those of earlier decisions of the court involving the Department of Health and the PUC, the court stated that the investigations done here were not done as part of any legislatively granted fact finding powers or duties of the PCCA but were performed merely because it was a party to the CSA and thus the exemption did not apply.
This decision points out that the Commonwealth Court continues to very carefully analyze the specific language of the RTKL, particularly where exemptions are involved. The decision also announces that the records of third parties, in the context of specific agreements between a government agency and those third parties (and its employees), may be subject to release even though they involve labor and management issues. Judge McGinley set out in the concluding paragraph of the decision that the public has a Right-to-Know those who perform services for government agencies, the scope of those services, disputes that arise, associated costs and how those disputes are resolved. As the request was framed here, there was no danger of divulging personnel or private information regarding individual workers or employees. Once again, this decision underscores the necessity for carefully worded requests.
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.