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Kandice J. Giurintano v. Department of General Services

April 25, 2011

KANDICE J. GIURINTANO, PETITIONER
v.
DEPARTMENT OF GENERAL SERVICES, : RESPONDENT :



The opinion of the court was delivered by: Rochelle S. Friedman, Senior Judge

Argued: March 8, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE JOHNNY J. BUTLER, Judge (P) HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY SENIOR JUDGE FRIEDMAN

Kandice J. Giurintano (Requester) petitions for review of the August 2, 2010, order of the Pennsylvania Office of Open Records (OOR), which granted, in part, Requester's appeal challenging the Department of General Services' (DGS) refusal to disclose certain records relating to a contract between DGS and Language Services Associates (LSA) for telephone translation services (Contract). We affirm.

Requester submitted a request to DGS under the Right-to-Know Law (Law)*fn1 for records relating to the Contract. Among other things, Requester sought:

(1) all independent contractor agreements between LSA and interpreters providing telephone translation services pursuant to the Contract;*fn2 and (2) the names of all interpreters who have provided services pursuant to the Contract. DGS denied the request based on LSA's position that: (1) the independent contractor agreements are not directly related to the Contract; and (2) the names of the interpreters are exempt from public disclosure under the Law.

Requester appealed to the OOR and requested a hearing. The parties, including LSA, submitted relevant material and provided argument as to the necessity of a hearing. The OOR denied the request for a hearing but granted Requester's appeal in part. Specifically, the OOR concluded that: (1) the independent contractor agreements between LSA and interpreters who have actually performed services pursuant to the Contract are directly related to the Contract and, thus, must be disclosed; but (2) names, addresses, signatures and any other information that may identify LSA's interpreters are exempt from disclosure as confidential proprietary information and, thus, may be redacted. The OOR denied Requester's appeal in all other respects. Requester now petitions this court for review.*fn3

Requester first argues that the OOR erred in failing to require DGS to disclose the independent contractor agreements between LSA and interpreters who have not actually performed services pursuant to the Contract. We disagree.

Section 506(d)(1) of the Law provides as follows:

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.

65 P.S. §67.506(d)(1) (emphasis added). In East Stroudsburg University Foundation v. Office of Open Records, 995 A.2d 496, 504 (Pa. Cmwlth. 2010), appeal denied, ___ Pa. ___, ___ A.3d ___ (No. 439 MAL 2010, filed Mar. 16, 2011), this court stated that section 506(d)(1) of the Law restricts access "to records that 'directly' relate to carrying out the governmental function, to avoid access [to records] that may relate to the contract but do not relate to its performance."

Here, pursuant to East Stroudsburg, LSA's independent contractor agreements with interpreters who have not actually performed translation services under the Contract are indirectly related to the Contract because of the possibility that the interpreters might perform services under the Contract. However, those agreements are not directly related to the Contract because the interpreters have not actually performed, and may never perform, translation services under the Contract. Thus, the OOR properly ruled that DGS was not required to disclose those agreements at this time.*fn4

Requester next argues that the OOR erred in concluding that information that may identify LSA's interpreters is exempt from disclosure as confidential proprietary information. We disagree.

Under section 708(b)(11) of the Law, a "record that constitutes or reveals a trade secret or confidential proprietary information" is exempt from access by a requester. 65 P.S. ยง67.708(b)(11). "Confidential proprietary information" is defined as "[c]ommercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the ...


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