Many government contractors remain unaware that members of the public may use a state law to obtain records related to the work they perform on public projects. The Pennsylvania Right-to-Know Law (RTKL) empowers members of the public to inspect and copy public records. The state legislature added a provision to the RTKL in 2009 that requires agencies to retrieve records from third parties who contract to perform public work and to disclose those records to the public under certain circumstances.
Section 506(d) of the RTKL requires agencies to disclose “public record[s] that [are] … in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency.” For instance, if a school district hires a contractor to build a gymnasium, all of the records that relate to the construction of the gymnasium are presumed to be open to public inspection. It does not matter whether the contractor gave the records to the School District, or if the contractor retained the records in its own files. If a member of the public submits a request to review the contractor’s records, the RTKL requires the School District to retrieve the records from the contractor.
A member of the public must only show that the record sought from the government contractor directly relates to the governmental function performed by the government contractor. Once the requester meets this burden, the record is presumed to be a public record unless the contractor can prove that the record is “exempt” under one of 30 categories of records that are not subject to public access.
One of these exemptions restricts access to records that contain “trade secrets” or “confidential proprietary information.” If the government contractor proves a record meets this exemption, the public may not compel the agency to retrieve and disclose the record. For example, if a municipality requires a government contractor to submit a list of customers for references, the government contractor can prevent the public from accessing the list, as long as the government contractor can show that the list provides a competitive advantage and that the contractor takes steps to keep the list secret from its competitors. However, contractors should also be aware that the Pennsylvania Supreme Court recently held that these exemptions do not apply to “financial records” which “deal with” the expenditure of public funds.
Government contractors have an obligation under the RTKL to notify agencies whenever they submit materials that should not be open to public view. If the government contractor does not notify the agency up front, the agency may disclose any materials received from the contractor to the public without providing notice to the contractor. Also, many agencies require government contractors to indemnify the agency from costly legal expenses that often result from open records litigation.
Government contractors should be aware of the RTKL’s third party record provision before entering public contracts. They should discuss with legal counsel what records are accessible under the law, what steps can be taken to prevent the disclosure of exempt records, and the expenses that may result from public record indemnification provisions. The last thing a government contractor wants is for their biggest competitor to use the RTKL to obtain their secrets.