Township Association Not Subject to the RTK Law
The Pennsylvania State Association of Township Supervisors (PSATS) is an unincorporated, nonprofit association which provides services to more than 1,400 second class townships in Pennsylvania. PSATS provides information, education and support to township officials and lobbies for legislation to improve municipal governance.
An individual submitted an open-records request to PSATS, pursuant to Pennsylvania’s Right-to-Know Law (RTKL), seeking records, including correspondence between PSATS and the Office of the Governor, related to Act 13 of 2012, a recent state law limiting local regulation of Marcellus Shale drilling and implementing drilling impact fees. PSATS denied the request by asserting that it was not an agency subject to the RTKL.
The requester appealed PSATS’s denial to the Office of Open Records (OOR). The OOR issued a final determination holding PSATS is an extension of its member township governments and therefore a local agency subject to the RTKL. Brasch v. PSATS, AP 2012-1184 (OOR 9/4/2012). The OOR reasoned that state statutes authorize PSATS formation, limit PSATS voting membership to elected or appointed township officials, and authorize PSATS funding from township membership dues.
PSATS filed a petition for review of the OOR’s final determination in the Cumberland County Court of Common Pleas. President Judge Kevin A. Hess allowed the parties to submit briefs and heard legal argument before issuing a decision. In a scholarly opinion issued March 7, 2013, PSATS v. PA Off. Of Open Records, et al., 62 Cumb. 129 (2013), Judge Hess concluded PSATS is neither a “Commonwealth agency” nor a “local agency” as defined by Section 102 of the RTKL. 65 P.S. § 67.102.
First, Judge Hess concluded PSATS is not a Commonwealth agency because it does not perform an essential government function. He relied on the Commonwealth Court’s recent decisions in Scott v. Delaware Valley Regional Planning Commission, 56 A.3d 40 (Pa. Cmwlth. 2012) and the Supreme Court’s decision under the prior version of the RTKL in Community College of Philadelphia v. Brown, 554 Pa. 31, 674 A.2d 670 (1996) which held, respectively, that a metropolitan planning organization and a community college do not perform essential government functions. Those cases set forth a three prong test to determine whether an organization performs an essential government function: (i) whether a statute identifies the organization as providing essential services, (ii) whether the organization provides constitutionally mandated services, or (iii) whether the organization’s services are indisputably necessary to the continued existence of the Commonwealth. Judge Hess found PSATS services did not meet any of the three prongs under this essential government function test.
Second, Judge Hess concluded PSATS is not a local agency because it is not a governmental entity similar to a local, intergovernmental, regional or municipal agency, authority, council board or commission. PSATS is not empowered to enact or interpret laws or ordinances and has no statutory power to perform governmental functions. Judge Hess found support for this conclusion in an unpublished Commonwealth Court Opinion, Philadelphia Industrial Development Corporation v. Ali, N. 528 C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 317 (Pa. Cmwlth. April 18, 2011), which held a not-for-profit corporation formed cooperatively between the city and the chamber of commerce to promote economic development was not subject to the RTKL. Judge Hess’s analysis turned primarily on the statute authorizing the formation of PSATS. He found townships are not empowered to “create” PSATS, but rather that the statute authorizes townships to voluntarily assemble as PSATS.
As the RTKL continues to evolve, this case provides guidance on the question of whether an entity is an agency subject to the RTKL.