Are Volunteer Fire Companies Agencies Under the RTKL?
The Commonwealth Court of Pennsylvania issued two decisions regarding the status of local volunteer fire companies under the Pennsylvania Right-to-Know Law (RTKL).[1] Previously, there was little guidance for volunteer fire companies as to whether the RTKL applied to them since they are not typically thought of as “agencies” under the RTKL’s definitions. These new decisions indicate, however, that volunteer fire companies could be classified as “local agencies,” and would thus fall within the RTKL’s scope.
In both cases, the volunteer fire company defendant was a nonprofit corporation operating as a contractor to provide Clinton Township with firefighting services. Requesters filed RTKL requests with the fire company seeking various records regarding loan documents and transactions in which the fire company may have participated. In both instances, the fire company denied the request without producing any records, claiming that it was not a local agency and therefore not subject to the RTKL’s requirements for records production. Further, it alleged that it considered itself an independent contractor which merely provided services for the municipality and did not engage in any kind of governmental function that would bring it within the RTKL’s scope.
On appeal to the Commonwealth Court, the requesters claimed that volunteer fire companies have been considered governmental or local agencies in many other statutory applications, and therefore the court should similarly classify the fire company as a local agency under the RTKL. Further, the requesters argued that volunteer fire companies perform a valuable governmental function by providing fire and emergency services to municipalities, making them more like a municipality than an independent nonprofit. They also alleged that the township provided the fire company with monetary support and that the acceptance of public funds should classify it as a local agency to further the objectives of the RTKL.
The RTKL defines a “local agency” as “(1) Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school[; or] (2) Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.”[2] It is this last subset of entities (“similar governmental entity”) that was at issue in both cases before the court. The only previous cases which had analyzed and determined that volunteer fire companies would constitute local agencies came from statutes other than the RTKL and involved the application of governmental immunity under the Pennsylvania Human Relations Act or the Pennsylvania Labor Relations Act. Cautioned by Pennsylvania Supreme Court precedent indicating that an entity’s status as a local agency varies depending on context, the court opted not to blindly follow the existing governmental immunity precedent.
Instead, the court fashioned a factors test to employ when considering whether an entity could qualify as a local agency under the RTKL. These factors include: (1) the degree of governmental control exercised by the municipality employing or contracting with the entity, (2) the nature of the entity’s functions, and (3) the level of financial control the municipality exercises over the entity. For the first factor, courts should further consider the organizational structure of the entity, and the purposes, powers, duties, and fiscal affairs with which it conducts business; mere cooperation with the municipality is not enough to establish that the municipality controls the entity. For the second factor—the weightiest of the test—the entity’s functions must be governmental in nature or a substantial facet of a governmental activity, but do not need to be essential to the municipality. Lastly, for the third factor, the court noted that the less monetary support the municipality contributed to the entity, the less likely it was that there was government control.
In both cases, the factual record was seriously lacking in evidence to analyze under the factors test. As such, rather than make a blanket statement regarding whether volunteer fire companies would be subject to the RTKL in the future, the court remanded the case to develop a fuller factual record to decide the case on its merits at a future date. Even though there is not currently any caselaw applying the new test from the Commonwealth Court, the test is helpful as a framework for entities that may be unsure of whether they fall under the catchall “similar governmental entity” definition within the RTKL.
It is worth noting, however, that certain common pleas courts within Pennsylvania have already ruled on the issue of whether volunteer fire companies are subject to the RTKL. These decisions still stand, absent any challenges under the new test set out by the Commonwealth Court. Thus, in Blair, Butler, Columbia, Tioga, and York Counties, volunteer fire companies are not currently subject to the RTKL. For counties without standing precedent, the new test from the Commonwealth Court should provide some clarity for whether their volunteer firefighter department might fall within the RTKL’s scope. It is also worth noting that there is legislation, House Bill 1780, now pending in the Pennsylvania Senate which would exempt volunteer fire departments from the RTKL. If passed and signed by the Governor, this would exempt volunteer fire companies from RTKL making the developing precedent irrelevant to volunteer fire departments in particular.
[1] Pysher v. Clinton Township Volunteer Fire Company, 209 A.3d 1116 (Pa. Commw. Ct. 2019); Bohman v. Clinton Twp. Volunteer Fire Co., 212 A.3d 145 (Pa. Commw. Ct. 2019).
[2] 65 P.S. § 67.102 (emphasis added).
With contribution from Sarah Rothermel, J.D. Widener Law Commonwealth.