Right to know ruling update

From the Pennsylvania Newspapers Association blog comes an update on the right to know law.

Wednesday, April 1, 2009
Office of Open Records Issues Damaging Decision
In Ford v. Northampton Area School District, AP 2009-0123, the Office of Open Records (OOR) has dealt a blow to open government, apparently finding that a budget discussion among a quorum of a school board was not "deliberation" for Right to Know Law purposes because it was, in the words of the OOR, an "informal" discussion. If this decision stands, it could have terrible repercussions for the public's right to know.

In Ford v. Northampton Area School District, AP 2009-0123, William Ford, a reporter for The Morning Call (Allentown) requested copies of a budget proposal that the Northampton School Board had discussed at a public meeting. The Board provided the draft budget, but redacted dollar figures from the document. Ford argued that the entire budget proposal was a public record under the new Right to Know Law, and we agree.

The School Board argued that exemption 708(b)(10) of the Right to Know Law allowed it to redact the budget figures. That section allows agencies to withhold certain internal, predecisional, deliberative documents from the public. It provides, however, that the exemption does not apply to documents presented to a quorum of an agency for deliberation at a public meeting. In other words, documents that are in a school board's "board packet" become presumptively public when they are presented to a quorum of the school board for the purpose of public discussion. There are limited exceptions to this rule, but none are relevant here.

The OOR agreed that the Right to Know law does not protect a record that is submitted to a quorum for deliberations at a public meeting. It found, however, that the draft budget was not presented to a quorum for "deliberation." According to the OOR, the budget discussion was informational and therefore the School District could redact the budget figures. In reaching this conclusion, it emphasized that the board did not make any decisions regarding the budget at the meeting in question.

This analysis is not only incorrect as a matter of law, it is incredibly damaging to the public's right to know - and threatens to set us back over 20 years, to a time when the Sunshine Act allowed agencies to hold many discussions behind closed doors.

It's worth taking a look at the history of the Sunshine Act. As originally adopted, Pennsylvania's Sunshine Act required government agencies to hold open meetings only when they were voting or taking official action. Not surprisingly, this meant that many agencies held their meaningful discussions and debates behind closed doors, only letting the public in when it was time for the final vote. As a result, the public knew "what" the agency had decided, but nothing about "why" a particular decision was reached.

In 1987, the law was amended to rectify this. As a result, today's Sunshine Act not only requires agencies to take all official action in public, it also requires them to deliberate most matters in public (there are limited exceptions for personnel, litigation, and certain other topics). "Deliberation" is defined as "the discussion of agency business held for the purpose of making a decision."

Since the 1987 amendments, there has been much debate and discussion about what constitutes "deliberation," and the Pennsylvania Courts have weighed in on a number of occasions. One thing is clear, though, that a decision doesn't have to be imminent for an agency discussion to constitute "deliberation." See Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth. 1989), where the Court found that a private conference among three members of a township board of supervisors concerning an amendment to a zoning ordinance was "deliberation" of agency business, even though no official action was expected to be taken.

Agencies sometimes point to language in court decisions to support their argument that board members may informally discuss matters without violating the Sunshine Act. See, e.g., Conners v. West Greene School Dist., 569 A.2d 978 (Pa. Cmwlth. 1989), appeal denied, 581 A.2d 574 (Pa. 1990)(Reference in newspaper that several board members apparently discussed a budget issue during a meeting recess not sufficient to find a Sunshine Act violation). It is critical to understand these cases in context, however. In Conners, for example, there was no actual evidence that budget issues were discussed during the recess. Just as significantly, there was no allegation or evidence that a quorum of the board was involved in the alleged discussions.

The Sunshine Act requires agencies to deliberate most issues at an open, advertised meeting. The "Board packet" provision in the Right to Know Law was intended to allow the public to "follow along" with these public discussions, by allowing interested citizens access to records that are being discussed by a board at an open meeting. Having access to records, as well as meetings, is the only way for community members to understand and participate in their government.

In Ford, there is no dispute that a quorum was present, that the budget proposal had been presented to a quorum, and that the proposal was discussed at a public meeting subject to the Sunshine Act. If the OOR intends to redefine "deliberation" to exclude budget discussions that occur prior to a final budget vote, we should all be very concerned. For that "definition," if adopted by local government, could mean that none of the budget discussions (until the final vote) have to occur in public. We've already been down that road -- and it was a disaster. Let's not head that way again.

We recognize that the OOR does not have jurisdiction over Sunshine Act disputes, but we urge it to reconsider its definition of "deliberation" in the Right to Know context, and to protect and preserve the public's right to know.

What to do with $5.5 million?

From the BCCT.

Bucks planning commission discusses its stimulus cash
By: Gary Weckselblatt
The Intelligencer

The Bucks County Planning Commission was briefed Wednesday about $5.5 million coming to the county as part of the federal government's stimulus spending.

A large chunk of the money, $3.9 million in an energy block grant, will be spent to make county facilities more energy efficient. "That's going to be the first priority," said Lynn Bush, the commission's executive director.

The county will also receive nearly $1 million, a "huge amount of money," she said, for the Homeless Prevention Program.

Bush said the county must have agencies in place by September to administer the funding to help people "on the brink of homelessness."

Guidelines for a $650,000 Community Block Grant have yet to be determined, she said.

The planners held Wednesday's meeting at the Pennsylvania Biotechnology Center of Bucks County, near the Doylestown Airport.

The center is in a former print distribution company that went out of business. Former Gov. Mark Schweicker and former Congressman Jim Greenwood helped locate the facility for the center. It has been turned from "a dilapidated building into a state-of-the-art research institute" with 22 companies and 220 employees, said James Horan, the site's chief operating officer.

Horan said European companies have recently visited the 112,000-square-foot campus and spoken about the possibility of relocating.

If the fertilizer gets too deep, there are alternatives

An emailer has suggested an alternative activity on the night of April 23 if you did not want to attend the joint school board/borough council meeting.

If you are looking for some lighter entertainment, you can, instead, enter the HS auditorium on April 23rd at 7:00 pm (or April 24th or 25th) and see a great performance of the MPC Youth Club’s production of “Oklahoma!”. If you bring canned goods to donate to the needy, you can get a dollar off your ticket price. Proceeds benefit various charities that the kids select.