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Lawmakers appeal denial of access to report in $145 million settlement

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    NMU         PENNSYLVANIA         Freedom of Information         Sep 20, 1999    

Lawmakers appeal denial of access to report in $145 million settlement

  • An appellate court found that a report on an auto emission testing company’s settlement with the state was not a “public record” because it was not essential to helping the state carry out its laws or regulations

In mid-September two lawmakers asked the state Supreme Court in Philadelphia to review a lower court’s denial of their open-records request to examine a report that led Pennsylvania to settle a lawsuit for $145 million.

Applying Pennsylvania’s narrow definition of “public records,” a split intermediate appellate court ruled in mid-August that the report was not essential to helping the state carry out its laws or regulations and, therefore, was not a public record subject to disclosure under the state’s right-to-know law.

The report was commissioned by the state in response to a 1995 lawsuit filed by Envirotest Partners after the governor canceled its contract with the state to provide automobile emissions testing. The lawmakers initially requested the report, an audit of Envirotest’s damages due to the cancellation of the contract, from the executive branch’s Office of General Counsel in December 1997 before filing suit in March 1998.

“These documents were relied on to use $145 million in taxpayer money. [The lawmakers] should be granted access to those documents because they were used to derive that figure,” a spokesman for one of the lawmakers told the Associated Press.

The two state senators had argued that the report was an account, voucher, or contract related to fiscal aspects of government — one of the two categories for public records in Pennsylvania. But the court found that the definition of such public records included only records concerning the actual disbursement of state money and ruled that the report fell beyond the scope of the open records act.

“We conclude that the audit, while tangentially relating to disbursements by the Commonwealth, was not an ‘essential component’ of the decision to pay Envirotest and, as such, is not a ‘public record,’ ” Judge James Gardner Colins wrote for the court.

Judge Rochelle Friedman dissented, writing that the report was a public record because the state had relied on it in deciding to settle the Envirotest lawsuit.

As members of the General Assembly, which approves the state’s budget, the two senators have a special interest in documents that describe how the state is spending the public’s money, Friedman wrote. Furthermore, for the executive branch’s Office of General Counsel to “fight their records request is to disturb the balance of power between the government’s branches,” Friedman added.

(LaValle v. Office of General Counsel; Counsel: Jeff Foreman, Harrisburg)

© 1999 The Reporters Committee for Freedom of the Press

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