The Pennsylvania Supreme Court ruled yesterday that records of a private entity acting on behalf of a public agency may be subject to the state’s open records laws.
In its ruling, the court interpreted a provision of the Right-to-Know Law under which some records of a party that has a contract with a government agency to perform a “governmental function” become public. Scranton Times Tribune reporter Gretchen Wintermantel filed an open records request with the Lackawanna County Multi-Purpose Stadium Authority seeking contract bids for concessions stands at PNC Field stadium.
The reporter was concerned when SWB Yankees, LLC, which is owned by the New York Yankees, solicited bids from concessions vendors but ending up entering a contract with another company also owned by the New York Yankees. SWB Yankees, a private minor league baseball operation company, manages the stadium and pays the authority an annual fee for using the stadium.
The Authority denied the request, arguing that SWB Yankees was not “contracted to perform a governmental function on behalf of the agency,” and therefore the information was not a public record of the Authority.
In determining whether the records could be subject to the law, the court adopted a so-called “non-ancillary test,” under which it considered whether the contractor was performing one of the “essential governmental functions” of the Authority on its behalf.
In urging that exhibiting games and selling concessions was not a “governmental function,” SWB Yankee unsuccessfully argued that “[t]his Court can and should draw [the] line at beer and hot dogs.”
The court disagreed.
“[SWB Yankees] has accepted delegation of the responsibility to operate the ball park for the public benefit as the Authority’s agent,” wrote Judge Thomas G. Saylor in the court’s majority opinion.
The court then held that the bids are public records, as they related to SWB Yankee’s governmental functions. It rejected the company’s argument that the bids “have no connection whatsoever to any government agency,” noting that it had – in its contract with the Authority – agreed to serve as the Authority’s agent.
“In our case,the stadium authority had essentially turned over complete control and operation of their business to a third party. So it’s the tax payers and the public that suffer in not having access to the workings of the Stadium Authority,” said John Timothy Hinton, Jr., the newspaper's attorney. “Now with this decision, we get to look at the public records that are in the hands of a third party contractor.”
In his concurring opinion, Chief Justice Ronald D. Castille agreed that “the General Assembly intended . . . to provide access to certain information of an agency, which happens to be in the possession of a contractor,” but found it “less clear whether the General Assembly intended to recast information peculiar to the contractor as a public record of the agency.”
Joseph Kernen, an attorney for SWB Yankees, said he and his client were disappointed with the ruling.
Related Reporters Committee resources:
· Pennsylvania – Open Government Guide: F. Contracts, proposals and bids.
· Pennsylvania – Open Government Guide: a. Bodies receiving public funds or benefits.