Trial Court Finds Right-to-Know Law Supersedes Private Contractual Agreement Limiting the Discoverability of Documents
Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas issued a decision on September 17, 2013, in Mid Valley School Dist. v. Warshawer, No. 13 CV 1528, which held: (1) The disclosure requirements of the Right-to-Know Law (“RTKL”) superseded discovery restrictions contained in a private contractual agreement between a school district and a contractor; (2) Elementary school construction is a non-ancillary governmental function of the school district, and to the extent that the district delegates that statutory responsibility to contractors or subcontractors, any records that directly relate to the services rendered in connection with the construction are discoverable; (3) Attorney’s fees are not appropriate where a party raises issues of first impression.
By way of background, the case involved a payment dispute between the Mid Valley School District (the “District”) and Mar-Paul Construction, Inc. (“Mar-Paul”), the contractor hired to renovate Mid Valley Elementary School. Mar-Paul’s attorney, Warshawer, made twenty-six RTKL requests which sought documents generated by or transmitted to the District in connection with the elementary school construction, and documents in possession of the District’s architect and construction manager. The District rejected the RTKL requests on the grounds that a document discovery restriction contained in the binding arbitration provisions of the parties’ construction contract barred the contractor’s agent from obtaining materials that would otherwise be discoverable as public records under the RTKL. Further, the District argued that it was not obligated to produce documents that were in possession of independent contractors.
The scholarly opinion of Judge Nealon first addressed the legitimacy of the District’s argument that the private arbitration agreement exempted the requested documents from disclosure under the RTKL. Judge Nealon recognized the issue as one of first impression under Pennsylvania law. The contract, in the case of any contractual disputes between the District and Mar-Paul, required the parties to submit to binding arbitration pursuant to Section 15.4 of the American Institute of Architect’s Document A232-2009 (“AIA Document”). Further, the contract stated that the Federal Arbitration Act would govern any arbitration proceedings. Section 15.4 of the AIA Document adopted the American Arbitration Association (“AAA”) rules as the rules that would govern any potential proceedings. The AAA rules restrict the parties’ discovery rights to those documents that the arbitrator directs any party to produce. Based on these discovery rules, the District contended that the contractual discovery limitation qualified as a “Federal law” exemption under Section 305(a)(3) of the RTKL (stating that the presumption that a record of a local agency is “presumed to be a public record” does not apply if “the record is exempt from disclosure under federal law).
Judge Nealon held that “the discovery restriction advocated by the District is nothing more than a private agreement to limit discovery per the AAA rules, and the public access directives of the RTKL supersede any such contractual proscription and entitle Warshawer to obtain the public records, even if such access results in pre-arbitration discovery.” In reaching this holding Judge Nealon explained that the Federal Arbitration Act does not make an express statutory statement that documents sought pursuant to a state open records act are not discoverable, and therefore, the Federal Arbitration Act did not establish a federal exemption that made the District’s records exempt from disclosure under the RTKL.
Judge Nealon brushed aside the District’s argument that Warshawer was seeking the records for the purposes of arbitration or litigation against the District because a requester’s motive or intent in seeking documents is not a valid reason for denying a request.
Judge Nealon (who authored the initial trial court opinion in SWB Yankees, LLC v. Wintermantel, which was eventually upheld by the Supreme Court) next addressed the issue of whether the records of the third party contractors were subject to the RTKL. The court reviewed the provisions of the Public School Code and found that the construction and maintenance of school buildings are non-ancillary governmental functions of a school district. Next, the court discussed the records actually requested, and came to the conclusion that all of the records were either prepared or transmitted to the District in connection with the construction project, or were records in the possession of contractors directly relating to the delegated performance of the governmental function of building schools. Thus, the court found that the District should have disclosed the records under the test outlined by the Supreme Court in SWB Yankees because the contractors performed a government function, and the records directly related to that governmental function.
Finally, Judge Nealon addressed Warshawer’s request for counsel fees. Judge Nealon denied the request because the District’s contractual discovery limitation argument raised an issue of first impression, and no decisional precedent had previously held that school construction constituted a “government function” of a school district under Section 506(d)(1) of the RTKL.
The case underscores the fact that the Pennsylvania RTKL broadly protects the public’s right of access to governmental records. A governmental agency will not be excused from disclosing records simply because it entered into a private agreement to restrict the discoverability of documents in response to potential contractual disputes.
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.