The opinion of the court was delivered by: Judge Pellegrini
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
East Stroudsburg University Foundation (Foundation) has filed a petition for review from the final determination of the Office of Open Records (OOR) granting in part and denying in part the request made by Dan Berrett (Berrett) on behalf of his newspaper employer, The Pocono Record (The Record),pursuant to the Right-to-Know Law*fn1 regarding donor information and minutes of meetings held by the Foundation. East Stroudsburg University (University) has also filed an appeal and The Record has filed a cross-appeal from the final determination as well.*fn2 All of the appeals involve the interpretation of Section 506(d)(1) of the Right-to-Know Law, 65 P.S. §67.506(d)(1), which provides: "A public record*fn3 that is not in the possession of an agency*fn4 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 this act, shall be considered a public record of the agency for purposes of this act."*fn5 The University and the Foundation also object to the OOR's participation as a party in this appeal.
The University is part of the State System of Higher Education and is part of the Commonwealth government. See Section 2002-A of the Public School Code of 1949, Act of March 10, P.L. 1949, P.L. 30, added by the Act of November 12, 1982, P.L. 660, as amended, 24 P.S. §20-2002-A. On February 4, 2009, Berrett sent a request submitted by The Record under the Right-to-Know Law to Richard Staneski (Staneski), the University's Vice President for Finance and Administration, requesting the following information:
* A list of donors to the Science and Technology Center, including the amounts of their pledge, payments (and the dates made) and outstanding balance;
* The opportunity to inspect donor files (including records of transactions, funds transfer, classification, and external and internal correspondence via e-mail and memoranda related to these gifts) for Warren Hoeffner, Robert Dillman, HD Justi, Betty Baltz, Jone Bush and Doris Imbt; and
* Copies of minutes of the ESU Foundation's board of directors meetings between 2005-07.
The letter indicated that while the records were held by the Foundation, they reflected decisions and actions authorized and carried out by employees of the University who were public employees. "[T]he Foundation defines itself as a 'component unit of East Stroudsburg University,' as explained on page 7 of its 2007-08 audit, and 'its financial statements are included as such in the financial statements of the University.' Therefore, I believe this information is material to the actions and decisions of a public agency." (Original Record, February 4, 2009 letter from Dan Berrett to Richard Staneski.)
In response, Staneski, on behalf of the University, denied the request because, while the University was a commonwealth agency, the Foundation was a non-profit, non-stock Pennsylvania corporation, and the "Memorandum of Understanding" (MOU) between them defined their relationship as independent contractors, not joint ventures or principal and agent. Therefore, no legal relationship existed, and the Foundation was not "tasked with performing essential government functions, it is not considered a Commonwealth agency under the Right to Know Law and the documents you requested are not subject to disclosure under the Right to Know Law as public records." (Brief of East Stroudsburg, Exhibit B, letter dated February 10, 2009 from Richard Staneski to Dan Berrett.)
After receipt of this denial, The Record appealed to the OOR, arguing that the Foundation performed "government services" on behalf of the University. Because the facts were undisputed, no hearing was held before the OOR. The Record contended that the Foundation was performing a governmental function because:
* the MOU referred to its background statement describing the Foundation as "having been established to advance the charitable, educational and scientific purposes of ESU; raising, receiving and managing endowments for the benefit of the university; offering 'programs and services related to the academic mission of the university;' and operating 'for the benefit of, to perform the functions of and to carry out the purposes of the university.'"
* one of the chief duties of the Foundation was to manage and distribute scholarships to University students. That combined with the University's mission to provide students with education at the lowest possible costs required the Foundation's records to be made public under Section 506(d) of the Right-to-Know Law, 65 P.S. §67.506(d).
* the Foundation functioned as a "state-affiliated entity" because it was staffed by public employees. It cited as examples that the Vice President for University Advancement held a dual position as Executive Director of the Foundation and the entire staff of the Foundation doubled as staff of the University's advancement department.
Based on all of the above, The Record argued that the requested records had to be provided to it because pursuant to Sections 301(a), 305(a) and 506(d)(1) of the Right-to-Know Law, 65 P.S. §§67.301(a),*fn6 67.305(a)*fn7 and 67.506(d)(1), they were in the possession of the Foundation, a party with which the University, a commonwealth agency, had contracted to perform governmental functions on behalf of the University.
The University argued that the Foundation was not performing a governmental function for the University stating:
* the MOU unequivocally established the relationship of the parties as that of independent contractors;
* the request sought documents that were neither in the control nor in the possession of the University;
* the Foundation was not an agency under the Right-to-Know Law but was a private, non-profit corporation which performed ...