In 2008, the Pennsylvania legislature made sweeping changes to the Commonwealth’s “Right-to-Know Law” (Open Records Law). Although Pennsylvania had one of the first Open Records Laws in the country, the changes which became effective January 1, 2009, completely changed the landscape and made millions of records public that otherwise would not have been. One of those major changes was the records of private individuals and private business entities who contracted with or had other relationships with government agencies are potentially public under the new law. Private individuals and businesses which contract with the government on either a local or state level and are not vigilant to records requests to those agencies could have important confidential, proprietary or trade secret information released publicly. Therefore, business owners need to be aware of the types of records involved in those business dealings that are potentially public. Those individuals and businesses must also be aware of provisions of the law that protect certain of those records from public disclosure.
What is the Pennsylvania Right-to-Know Law?
The Right-to-Know Law (RTKL) is a Pennsylvania statute that defines the types of records that are public records and which are required to be made public upon request under the procedures set forth in the law. The current RTKL became effective January 1, 2009.
What is a “record”?
A record, although it does include paper records, also includes many other types of information regardless of their form such as electronic records, emails, text messages, photographs, maps, video or sound recordings and similar types of information. The records accessible under the RTKL are those that document a transaction or activity of a government agency and that are created, received or retained pursuant to law or in connection with a transaction, business or activity of the government agency. This includes records resulting from contracts between private individuals and businesses and government agencies.
What is a “public” record?
A “public record” is any record that is within the possession of a local, Commonwealth, legislative or judicial agency and that is not exempt under the provisions of the RTKL, protected by a privilege like the attorney-client privilege or exempt under any other state or federal law, regulation or judicial order.
What types of agencies are covered by the law?
The law divides government agencies into four categories: 1) local agency; 2) Commonwealth agency; 3) legislative agency; and 4) judicial agency. Local agencies include cities, townships and boroughs, school districts, municipal authorities and counties among others. Commonwealth agencies are those primarily of the Executive Branch and the Governor’s Office. A legislative agency is essentially the Senate and the House of Representatives of the General Assembly as well as other specific commissions and committees. A judicial agency is a court of the Commonwealth or other entity under the unified judicial system of Pennsylvania.
Is access the same as to all the different types of agencies?
No. The most records available are from those of local agencies and the Executive Branch of the Commonwealth. Regarding legislative agencies and judicial agencies, the types of documents available are much narrower. In addition, the judicial agencies have specific rules that apply to their records.
If I have a contract with any of these agencies or perform services for them, are my records subject to the RTKL?
Generally speaking, any contract between you, your business and an agency will be public along with any document which is “directly related to” that contract or the performance under the contract. Documents directly related could be such things as correspondence, emails, texts, and memoranda so long as they relate directly to the contract or the services or functions to be performed under it.
Are there any ways to protect my records?
Yes, the law recognizes certain limited exemptions, some of which directly pertain to business records of individuals or enterprises that contract with government agencies. For example, the law exempts records or portions thereof which contain confidential, proprietary information. This could include financial capability information or other similar records that would disclose confidential or proprietary information of the business. However, there is a specific test which must be satisfied to qualify under this exemption. The law also exempts trade secrets. Here again, the information sought to be protected must fit the very strict definition of a trade secret under the RTKL.
What records would be publicly available in competitive bidding situations?
The RTKL provides that while the RFP/bidding process is occurring the records are exempt from disclosure. However, once the bids are open and a bid is accepted or a contract is awarded, the winning entities’ information does become public record subject to certain limited exceptions such as financial information submitted to prove economic capability. The RTKL contains thirty exemptions in total and other general exemptions may also apply such as attorney-client privilege records.
How will I know if someone has requested records that I may wish to challenge?
The RTKL does require that an agency that receives a request for records which may include records of a third-party contractor that contain confidential proprietary or trade secret information, the agency must give the third-party notice of the request within 5 business days of its receipt of that request. The third-party then would have 5 business days from notification to file an objection to the production of the record. In addition, if the requester is denied access to the record and appeals to the Office of Open Records or the courts, it is good practice for the agency to give the third-party notice so that they may decide whether to intervene in the appeal to assert any exemptions or other information they believe should block production of the records.
An individual or business which does contract with an agency may also be proactive and mark certain records or portions thereof as confidential, proprietary or trade secret so the agency is alerted in advance of the vendor’s position on those records. You should not rely on the agency to assert those exemptions. However, if you assert such exemptions, the agency will rely on you to substantiate the exemption in most cases.
Although the RTKL vastly expanded the types of records which government agencies may be compelled to produce to the public, including records of private individuals and business entities, the law does provide protections for certain types of information or records and contains mechanisms for those individuals or businesses to assert arguments for protecting those records from disclosure.
The attorneys at Nauman Smith’s Right-to-Know/Media practice group are prepared to assist business owners with navigating the complexities of the RTKL and its exemptions and how best to protect those records from public disclosure.