Right-to-Know Law Does Not Reach Records of Privately Managed Economic Development and Tourism Agency

The requester submitted a request for records concerning the Oil Region Alliance of Business, Industry and Tourism (“Alliance”), an entity established to promote economic development, recreation and tourism in two counties in northwestern Pennsylvania.  The Alliance denied the request, asserting that it was not an “agency” required to comply with the Right-to-Know Law.  The Office of Open Records, the Court of Common Pleas of Venango County, and the Commonwealth Court affirmed the Alliance’s denial.

The RTKL defines the term “local agency” as “[a]ny local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar government entity.”  65 P.S. § 67.102.  The Commonwealth Court established a test in a prior, unreported opinion, Phila. Indus. Devel. Corp. v. Ali (PIDC v. Ali) (Pa. Cmwlth., NO. 528 C.D. 2010, filed April 18, 2011), to determine whether an entity is a “similar government entity.”  The test requires courts to assess whether the government controls the operations of the entity by examining factors including organizational structure, purposes, powers, duties, fiscal affairs, and, importantly, whether the entity performs a governmental function.

The trial court found that the Alliance was not subject to government control.  It held the Alliance is a private nonprofit 501(c)(3) corporation governed by a board of directors.  Although some board members represent government agencies, the majority of the board members represent private sector interests.  The Alliance receives private and public funds, including a 3% hotel tax.  However, the amount of public funds, approximately $180,000, is a proportionately small part of the $2.8 million in operating revenue.  Finally, the trial court found economic development and community stewardship are not governmental functions that fulfill a core purpose of a government agency.  The Commonwealth Court agreed and affirmed the Trial Court’s findings.

The Commonwealth Court also observed that the Alliance’s records were not accessible under Section 506(d) of the RTKL because the Alliance did not contract with any government agency to perform a government function.

This case shows a gray area regarding what entities are required to comply with the RTKL.  An entity that is controlled by the government, or that performs a governmental function, may have an obligation to respond to requests for public records.  On the other hand, an agency that only cooperates with or receives funding from the government is not necessarily an agency which must disclose its records.

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.

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