a. Bodies receiving public funds or benefits.

The Act provides a number of examples where records in the hands of bodies receiving public funds or benefits are public records.

The Act expressly applies to certain records of “state-related institutions.” This includes Temple University, the University of Pittsburgh, Pennsylvania State University and Lincoln University. Sections 102 & 1501. State-related institutions are required to file “reports” as set forth in Sections 1502-1504.

The Act also states that a “public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under the act, shall be considered a public record of the agency for purposes of this act.” Section 506(d).  

The Commonwealth Court has recently interpreted the phrase “directly relates to the governmental function” in Section 506(d).  See Edinboro Univ. of Pa. v. Ford, 2011 WL 1499446 at *1 (Pa. Commw. Ct. 2011); Giurintano v. Dep’t of Gen. Svcs., 2011 WL 1566741 at *1 (Pa. Commw. Ct. 2011) (holding that services performed on behalf of a private entity outside of the government contract are not accessible); Allegheny Cnty. Dep’t of Admin. Svcs.  v. A Second Chance, Inc., 2011 WL 527105 at *1 (Pa. Commw. Ct. 2011)(remanding the case to the trial court because it failed to hear evidence regarding the private entity’s government contract); Buehl v. Office of Open Records, 6 A.3d 27 (Pa. Commw. Ct. 2010); East Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Commw. Ct. 2010).  Pennsylvania courts analyze that phrase in two parts, the document must have: 1) a governmental function and 2) a direct relationship.

Under the first prong, the Commonwealth Court considered whether fundraising  for a state university constitutes a “governmental function.”  East Stroudsburg, 995 A.2d at 499-500.  Relying on Iowa case law, the Court held that a non-governmental body performs governmental functions when it performs “normal government business.”  Id. at 505(citing Gannon v. Bd. of Regents, 692 N.W.2d 31 (Iowa 2005)).  The Commonwealth Court construed the term business to mean any duty arising out of a contract with a government agency.  Id.  Hence, non-governmental entities’ records will be subject to the Act so long as they owe a contractual duty to a government agency.  Id.

Under the second prong, Buehl considered whether contractual duties owing to a governmental agency directly related to records requested by an inmate. Buehl, 6 A.3d at 28. The Commonwealth Court affirmed the Office of Open Records’ denial of the inmate’s request for documentation of the wholesale cost of goods a private entity sold through a state prison’s commissary system.  Id. The Court  distinguished records kept in the private company’s “normal scope of business” from those which directly relate to the performance of the government contract.  Id. at 30 (citing East Stroudsburg Univ. Found., 995 A.2d at 504); see also Office of Gov. v. Bari, 2011 WL 1662849 at *5 (Pa. Commwlth. Ct. 2011) (holding that when an agency appoints a member to a private non-profit board it is not transacting business with that organization).  The Court reasoned that the private company’s obligations under the contract only pertained to the sale of goods in the prison and not the purchase of those goods from its supplier.  Id.   Hence it held that the inmate had requested documents which were not “public records” under the language of Section 506(d)(2). Id; see also A Second Chance, Inc., 2011 WL 527105 at *16 (remanding to the fact-finder to hear evidence on the relationship between the record requested and the government contract).

But the requester may not seek such records from the third party; rather the requester must seek them from the agency: “A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency.” Section 506(d)(3).

Of course, if the legislature says that a particular body is an agency under the Act, then the body must comply with the Act’s requirements. Cf. Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (A private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation specifically stated that it was deemed an agency under the Sunshine Act) (interpreting 71 Pa. Cons. Stat. § 632(d)).