The opinion of the court was delivered by: Judge Pellegrini
Submitted: September 10, 2010
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Roger Buehl (Buehl) petitions pro se for review of a final determination of the Office of Open Records (OOR) granting in part and denying in part his request for records of a private company contracting with the Pennsylvania Department of Corrections (Department) to provide commissary services to inmates. Discerning no error in the OOR's decision, we affirm.
Buehl is an inmate currently incarcerated at the State Correctional Institute (SCI) at Smithfield, a facility operating under the Department's purview. Previously, the Department provided its own commissary services to state prisoners but now contracts with a private company, Keefe Company (Keefe), to provide those services, including the sale of clothing and electronic items to inmates. On November 10, 2009, Buehl filed a request with the Department pursuant to the Right-to-Know Law (RTKL)*fn1 seeking copies of records showing the actual or wholesale costs Keefe paid for various clothing and electronic items resold to the Department for sale to inmates through the prison commissary as well as records showing the quality of these items.*fn2 The Department's Agency Open Records Officer (AORO), by letter, denied Buehl's request because those records did not exist. The AORO denial letter also stated that the Department did not have or maintain any records of the costs Keefe paid for the items sold to inmates or any records related to the quality of these items, and under Section 705 of the RTKL,*fn3 the Department was not required to create a record which did not exist. However, the Department did provide Buehl with a memo indicating the amount Pennsylvania Correctional Industries (PCI) paid for the items sold by Keefe, which was the same price the items were sold to the inmates. The memo also stated that to the best of its knowledge, the Department received only retail grade goods and did not knowingly purchase factory seconds or anything identified as having known defects.
Buehl appealed to the OOR arguing that under Section 506(d) of the RTKL, even if the Department did not physically possess the requested records, they were still considered public records of the Department:
(1) A public record that is not in the possession of an agency 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. (Emphasis added.)
65 P.S. §67.506(d)(1). According to Buehl, the Department contracted with Keefe to perform the governmental function of providing commissary services to state inmates, and the records he requested directly related to this function making them public records of the Department and subject to disclosure.*fn4
The Department supplied the OOR with the sworn affidavit of its AORO affirming that the requested records did not exist within the Department's files. While the Department confirmed that it contracted with Keefe, it maintained that their contract only pertained to providing certain commissary services and selling commissary items at agreed upon prices. The actual cost of the commissary items to Keefe was unknown to the Department and was not addressed in the final contractual agreement. Therefore, the Department argued that the requested information was outside the parameters of the contract and not subject to disclosure.
The OOR issued a final determination denying in part and granting in part Buehl's appeal. It noted that in order for the records of a private contractor, such as Keefe, to be considered public records of the Department under Section 506(d) of the RTKL, the services Keefe performed must represent a governmental function performed on behalf of the Department, and the requested records must be directly related to that governmental function. The OOR determined that providing commissary services to state inmates was a governmental function for purposes of Section 506(d) of the RTKL. As to the records requested from Keefe, the OOR determined that any records pertaining to what Keefe itself paid for the items it resold to the Department were not directly related to the re-sale to inmates. Because these records were beyond the parameters of the contract, they were not accessible under Section 506(d). However, the OOR determined that records pertaining to the quality of the items resold to inmates were directly related to the contract with the Department, within its scope, and accessible. The OOR noted that while the Department provided Buehl with a memo explaining what Keefe's records may or may not contain, this was not the equivalent of having copies of or access to the actual records themselves. Buehl petitioned the OOR for reconsideration of that part of its final determination holding that records showing the actual costs paid by Keefe were not public records, under the RTKL. The OOR denied Buehl's petition and he appealed*fn5 to this Court.*fn6
On appeal, Buehl contends that the OOR applied Section 506(d) of the RTKL in an overly narrow manner by holding that the requested records showing the actual cost Keefe paid for items resold to prisoners were not subject to access because those records were beyond the parameters of the contract the Department had with Keefe. In essence, he claims that because Keefe is performing a governmental function, all of its financial records regarding the commissary items are public records, and there is no factual or legal basis to shield them from public access.
In order for third-party records to be considered public records of the Department under the RTKL, they must be in the possession of the contracting party and must "directly relate to the governmental function." Section 506(d)(1) of the RTKL, 65 P.S. §67.506(d)(1). Moreover, Section 506(d)(2) goes on to state that "[n]othing in this act shall be construed to require access to any other record of the party in possession of the public record." 65 P.S. §67.506(d)(2). We addressed the scope of Section 506(d)(1) in East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496 (Pa. Cmwlth. 2010). We emphasized the important limitation the General Assembly placed on public access to contracting party records by the specific language it utilized in Section 506(d):
The General Assembly also used the term "governmental function" to limit access to only those records in a contractor's possession that relate to that function, not other records that a contractor maintains during the normal scope of business. Access is further restricted to records that "directly" relate to carrying out the governmental function, to avoid access that may relate to the contract but do not relate to its performance. For example, material used in preparation for the bid for the ...