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October 14, 2012

Lobbyists could be subject to open-records law

HARRISBURG — Organizations that lobby on behalf of townships and other political bodies could be subject to the state's open records law and forced to publicly share documents that pertain to those associations and state government.

The decision by the state's Open Records office that the Pennsylvania State Association of Township Supervisors is a "local agency" and subject to complying with requests for records that are filed by residents, the media and others spurred an appeal in Cumberland County Court by the East Pennsboro Twp.-based association.

Should the Open Records office's opinion be upheld, it could lead to a host of similar associations that represent the interests of political bodies before state legislators having to open up their records and documents to Right to Know requests, to the extent these documents pertain to communications between these associations and state government, said John L. Gedid, a professor at Widener Law School.

The Pennsylvania County Commissioners Association, Pennsylvania League of Cities and Municipalities, Pennsylvania Boroughs Association and the Pennsylvania School Boards Association are examples of the other organizations that could be affected, said Gedid, director of the school's Law and Government Institute.

"It is quite possible that the court could find that townships are supposed to exchange information with the Legislature, and thus this is an activity directly related to the duties of the townships," Gedid said.

"Government entities cannot privatize activities to shield (themselves) from the Right to Know Law," he said. "An argument could be made that the association is used for that purpose, to prevent the public from knowing what the lobbying activities of townships are."

The decision by the Open Records office was prompted by four Right to Know requests that were filed with the association in July by Walter Brasch of Bloomsburg.

Brasch asked the association to turn over resolutions that the organization had passed regarding specific state legislation, and minutes reflecting how the association's membership had voted on the resolutions.

He also requested documents regarding association income from member dues, advertising and other sources, and communications between the association and Gov. Tom Corbett's office.

Brasch appealed after getting a letter from association General Counsel Scott Coburn saying that the association would not comply with Brasch's request because the group is not an "agency" as defined in the Right to Know Law.

But in a finding issued Sept. 4, Open Records Appeals Officer Benjamin Lorah determined that the association does fall under the Right to Know Law as a local agency, because the association itself was created by the state General Assembly.

Moreover, the association's voting membership is limited to officers appointed by township governments, and the association derives its income in part from dues paid by the townships.

Coburn in his appeal on behalf of the association countered that the finding is inconsistent with past decisions by the state Open Records office holding that similar other entities were not agencies under the open-records law.

He said association leadership is elected by individuals, not the townships; that association policies and resolutions are not binding on the townships; and that the townships do not pay the salaries of association staff or control the group's assets and its day to day operations.

Terry Mutchler, executive director of the state Open Records office, cited an earlier finding by her office that a private organization, the East Stroudsburg University Foundation, falls under Right to Know as supporting Lorah's conclusion on the association. State appellate courts have upheld the East Stroudsburg ruling, she said.

Mutchler said the association couldn't have fallen under the state's old open-records law. But the version now in place is "one of the most far reaching" in the country and one of less than a few nationwide "that can reach the records of private organizations," she said.

Gedid said no matter how a Cumberland County judge rules, the dispute will almost certainly be appealed to higher state courts.

"This gunfight isn't over yet," he said.

___

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