Corporations are not “Individuals” Under the Donor Exemption Set Forth in Section 708(b)(13) of the Right-to-Know Law

As issues under the Pennsylvania Right-to-Know law (RTKL) become more nuanced, the Commonwealth Court was called upon recently to decide the meaning of the word “individual” in the exemption found in § 708 (b)(13). This section provides exemption for the “Identity of an individual who lawfully makes a donation to an agency.” Who or what constitutes an “individual” was the basis of the Court’s decision.

A requester made a Right-to-Know request to California University of Pennsylvania (University) for records related to donations from a particular corporation to The Foundation for California University of Pennsylvania (Foundation). The request was filed with the University. The University denied the request asserting (1) that the University did not possess the donation records sought, and (2) the records were exempt under the provisions of § 708 (b)(13), 65 P.S. § 67.708(b)(13).

On appeal to the Office of Open Records (OOR), requester submitted a copy of a Memorandum of Understanding showing that the Foundation managed donations on behalf of the University. Under the East Stroudsburg decision, this made the records of the Foundation subject to a RTKL request. Before the OOR, the University argued that because the corporation was an “individual” under § 708 (b)(13), any records regarding its donations were exempt. In granting the requester’s appeal, the OOR determined that (1) the University had abandoned their argument that it did not possess the records requested and, (2) the provisions of § 708 (b)(13) only applied to “natural persons” and not to entities like corporations.

The University appealed to the Commonwealth Court. Judge Brobson, writing for the panel, analyzed the University’s argument that the term “individual” included corporations as well as natural persons. Ultimately, the Court agreed with the requester that the definition of “individual” contained within the Statutory Construction Act, 1 Pa.C.S.A. § 1501 et. seq controlled the determination of the issue under § 708 (b)(13) noting this as an issue of first impression. Relying on related rules of Statutory Construction, the Court noted that legislative intent is best derived from a statute’s plain language. The Court noted as significant that the exemption found within § 708 (b)(29) used the word “person” and not “individual.”

Finding that the General Assembly did not indicate its intent to depart from the definition set forth within the Statutory Construction Act, the Court held that the term “individual” as used in § 708 (b)(13) includes only “a natural person.” Thus, the records of the Foundation/University were not exempt.

The Court concluded by noting that when a foundation performs fundraising under a written contract such as the Memorandum of Understanding applicable here, the foundation is performing a governmental function on behalf of the university with which it has the agreement. Under these facts, § 506 (d)(1) of the RTKL permitted access to the records requested as if they were in the actual possession of the University itself. Commonwealth Court affirmed the final determination of the OOR ordering the University to turn over the requested records.

As the RTKL enters its second decade within the Commonwealth and as this case demonstrates, issues arising under RTKL provisions are becoming more and more specific and statutory construction analysis is becoming increasingly prevalent in making many of these determinations. As always, however, the overriding concern should be in granting the public greater access to government records.

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