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Pennsylvania executives refuse records requests

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  1. Freedom of Information
The owner of a Philadelphia historical walking tour company has been sued by the offices of the Pennsylvania governor and…

The owner of a Philadelphia historical walking tour company has been sued by the offices of the Pennsylvania governor and Philadelphia mayor in attempts to block the release of records requested under Pennsylvania’s Right-to-Know Law.

Jonathan Bari owns Constitutional Walking Tours of Philadelphia, which leads guided walking tours through the 45-acre Independence National Historic Park that includes Independence Hall and the Liberty Bell.

Through separate records requests, Bari sought access in January to meetings minutes and correspondence between the Independence Visitor Center Corp., a publicly-funded organization that was subcontracted to run the park by the National Park Service, and Mayor Michael Nutter and Gov. Edward Rendell. Nutter and Rendell hold seats on the organization's board of directors, according to court documents. Rendell’s seat is filled by an officially-appointed representative.

Pennsylvania’s Office of Open Records upheld appeals made by Bari after his requests for information were denied by the offices of the governor and mayor, both of whom have filed petitions for review in Pennsylvania courts in continued efforts to withhold the information.

Bari was concerned that his company, which has held a contract to solicit customers for its tours from inside the Independence Visitor Center since 2005, was being denied equal opportunity to conduct its business when its contract was terminated without cause via voicemail in the spring of 2006, he said.

Since that time, Bari has negotiated to remain in the visitor center, but his presence and visibility have been largely marginalized, he said. The business is currently permitted to have one employee respond to visitor inquiries next to a 10-inch by 10-inch sign at the building’s back wall.

“Bit by bit there has been a consolidation in the industry and there have been two favored players. Unfortunately we’re not one of them,” he said, referring to competing operations Ride the Ducks and Philadelphia Trolley Works.

In his most recent attempt at recourse in January, Bari submitted information requests with the hope that the mayor and governor’s involvement on the board would make its meetings and documents public records under the Right-to-Know Law, which went into effect in January 2009, he said.

“We’re hoping to see what goes on behind the scenes here in terms of the deal terms that get decided and discussed,” he said.

His requests were denied by the offices of both officials on the grounds that the records were not subject to public disclosure. The offices each argued that the officials’ involvement did not make the activities of the board public record, and the governor’s office claimed that the documents were exempt from release because they contained confidential proprietary information, court documents said.

Bari appealed each office’s separate denial to the Office of Open Records, which disagreed with the refusals and ordered the documents be released in April and September from the offices of the mayor and governor, respectively.

“The City participates by virtue of the Mayor’s membership and it is thus an activity of the City,” the Office of Open Records ruled. In both cases, the office found that the records Bari requested documented a transaction or activity of a government agency, making them applicable to the Right-to-Know Law, according to the office’s determination. The office ruled that the meetings were city activities whether or not the mayor attended or participated.

“If a public official serves on a private board in an official capacity, the public has a right to know the extent of that service and see records associated with it,” the Office of Open Records said.

According to the Office of Open Records' determination, the governor’s office failed to prove that the records were properly withheld as confidential proprietary information.

In their suits, the mayor's and governor's offices contested that the Office of Open Records erred in applying the Right-to-Know Law because it found that the meeting minutes were public record due to the involvement of the governor and mayor, and because the offices had stated that they did not have the requested records in their possession, according to their petitions for review.

The governor’s office argued that the records should be exempt because Rendell did not personally sit on the board and the mayor’s office voiced a parallel argument in claiming exemption because Nutter never physically attended a meeting, the petitions said.

Bari has become increasingly concerned with the offices’ adamant refusals to comply with his requests, actions he says are indicative of their “clandestine operations.”

“The city, the state and the IVCC [Independence Visitor Center Corp.] have each invested an incredible amount of resources here to block the release of the records,” he said.

The offices of Rendell and Nutter refused to comment on pending litigation.