• Prompted by media requests for the information, a commonwealth court ruled that applications for grants that were not awarded are public records, but the supreme court disagreed.

Feb. 7, 2003 -- The Pennsylvania Supreme Court ruled Jan. 3 that unsuccessful grant applications are part of the deliberative process and therefore not subject to public release, overturning a decision by a commonwealth court.

The matter arose when the Pittsburgh Tribune-Review and WPXI-TV, a Pittsburgh television station, requested from the Pennsylvania Department of Community and Economic Development unsuccessful grant applications for a Community Revitalization Program.

The DCED denied the request, stating that the unfunded grant applications were not public records.

The agency stated because it never reviewed the unfunded applications, the applications were not an "essential component" of the agency's decision regarding which applications to fund.

In March 2000, the commonwealth court had rejected the DCED's argument and said the department must disclose the grant applications. The court found that all applications for funds under the grant program were essential components of the DCEDs decision regarding who would receive grants.

The DCED appealed the decision, and the Pennsylvania Supreme Court ordered the commonwealth court to reconsider the matter.

The supreme court held that the unfunded grant applications requested by the Tribune-Review and WPXI-TV were not public records under the state's open records law. The court adopted a "deliberative process privilege," which protects from disclosure documents "confidential deliberations of law or policy making, reflecting opinions, recommendations or advice."

The supreme court based its decision on an earlier case, Lavalle v. Office of General Counsel. In Lavalle, the Pennsylvania Supreme Court said that a study commissioned by the state Department of Transportation to determine the extent of damages in a court case reflected "predecisional, internal, deliberative" aspects of an agency decision and did not fall within the definition of a public record under state law. The Lavalle court did not adopt the deliberative process privilege because of that case.

The court said it centered its decision around whether the unfunded grant applications were part of the deliberative process and therefore not subject to disclosure or whether they are essential components of the decision-making process and therefore subject to disclosure.

The court decided that because the grants in question were not actually awarded, "the application was not acted upon and in fact strongly suggests that nothing has been decided." Therefore, the court held that the unfunded grant applications were not public records.

(Tribune-Review v. The Department of Community and Economic Development; Media Counsel: David Strassburger, Strassburger, McKenna, Gutnick and Potter, Pittsburg, Penn.) -- AT

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