Right to Know, Part III

From the BCCT.

Private business under scrutiny
By MARK SCOLFORO
ASSOCIATED PRESS

Part 3 of 5/Read Part 4 Friday

HARRISBURG — Private businesses that do business with state and local governments in Pennsylvania are about to find themselves having to make some records available to the public.

But there are signs that many of those contractors are unaware of the provision in the new Right-to-Know Law, and experts are debating just how it will apply — a dispute that may end up being resolved by the courts.

One such group consists of the hundreds of school bus contractors, who provide about 85 percent of student transportation for the state’s 501 school districts.

Pennsylvania School Bus Association Executive Director Selina Pittenger said she hasn’t fielded questions from members about the new law.

“They’re probably thinking, ‘We’ve already been under the microscope,’ ” Pittenger said.

Terry Mutchler, director of the state Office of Open Records, said there’s a “very solid legal question” as to whether, for example, the resume of a school bus contractor’s driver would be a public record.

“If you have a bus driver that’s fired for child molestation or whatever criminal act it is, I think that there is a very strong public policy argument that the public should be made aware,” Mutchler said. “The reality is, we’re going to see a lot of litigation over very astute questions just like that.”

Major state agencies and officials with Pennsylvania townships and boroughs also said the contractor issue has barely registered on their radar screens, although that may change once the new law takes effect next month.

For county governments, the most significant third-party contracts likely to be affected involve nursing homes, mental health services and similar functions, said Doug Hill, executive director of the County Commissioners Association of Pennsylvania.

The trade group is advising county governments to review their existing contracts to see if they need to be revised in light of the additional reporting duties the new law requires, Hill said.

A lawyer for the Pennsylvania School Boards Association who has researched the issue argues there may be very few — if any — documents that fit the new law.

It lets anyone obtain contractor records directly related to a governmental function the contractor has performed for a state or local agency. The records would be obtained through the agency, not directly from the contractor.

PSBA lawyer Emily Leader said the problem is that the law doesn’t define “government function.” She believes, for example, that a paving company filling potholes on a township road or a bus company driving students to school wouldn’t necessarily fit the bill.

Governments are restricted by the state Constitution in what powers they can delegate, Leader said.

The state Supreme Court, in a 2003 decision, grappled with the relationship between a governmental body and an outside vendor. In that case, the justices ordered that the records be made public.

Even though the Westmoreland County Housing Authority allowed its insurer to completely handle the legal defense and negotiate terms of a confidential settlement in a federal gender discrimination lawsuit, it lost the case and had to give the Tribune-Review Publishing Co. a copy of a settlement agreement.

Clouding the issue is a 1997 state Supreme Court decision that said Millersville and West Chester universities, while state agencies subject to the Right-to-Know Law, didn’t have to provide a textbook seller with a list of course material. The state’s high court reasoned that the universities had no part in ordering or selling textbooks and did not solicit, compile or retain information on course materials.

Leader believes it’s significant that the new law refers to governmental functions rather than simply contracts. She considers it unbroken legal ground that the courts might have to plow.

Pennsylvania Newspaper Association lawyer Teri Henning, on the other hand, believes the intent of the law is straightforward.

Determining what qualifies, she said, involves looking at what role the contractor is playing, how it relates to the operations of government and whether it has previously been performed by governments.

“A lot of government functions are being outsourced by government agencies,” Henning said. “They are certainly entitled to do that if it makes more sense from an economic or efficiency standpoint. But it should not mean these records should be shielded from public view.”