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Office of the Governor v. Jonathan Bari

May 4, 2011

OFFICE OF THE GOVERNOR, PETITIONER
v.
JONATHAN BARI, : RESPONDENT : INDEPENDENCE VISITOR CENTER : CORPORATION,
PETITIONER
v.
JONATHAN BARI,
RESPONDENT



The opinion of the court was delivered by: Opinion BY Judge Brobson

Argued: March 8, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

In these consolidated petitions for review, the Office of the Governor (Office) and Independence Visitor Center Corporation (IVCC) challenge a final determination of the Office of Open Records (OOR), issued September 13, 2010, granting Jonathan Bari's (Bari) request for information pursuant to the

Right-to-Know Law (RTKL).*fn1 For the reasons that follow, we reverse in part and vacate and remand for further proceedings.

IVCC is a private, not-for-profit Pennsylvania corporation formed pursuant to the Nonprofit Corporation Law of 1988, 15 Pa. C.S. §§ 1501-6162, on February 6, 1998. IVCC operates the Independence Visitor Center, the official visitor center for the greater Philadelphia region. Pursuant to IVCC's bylaws, IVCC's board of directors (Board) is divided into three classes of directors: Class A, Class B, and Class C. There is one Class B director and one Class C director. The remaining directors are Class A directors.*fn2 The Class B director, designated as the "Mayor's Representative," is to be appointed "by the Mayor of the City of Philadelphia who is incumbent from time to time."*fn3 (Reproduced Record (R.R.) at 63a-64a.) The Class C director, designated as the "Governor's Representative," is to be appointed "by the Governor of the Commonwealth of Pennsylvania who is incumbent from time to time."*fn4 (Id.) According to the affidavit of Christine Keates (Keates), General Manager of IVCC, other than the ability to designate one director, there is no role, duty, or responsibility reserved for or required from either the Governor or the Mayor in IVCC's bylaws or articles of incorporation. (R.R. at 107a.)

By letter dated March 18, 2003, then Governor Edward G. Rendell (Governor Rendell) exercised the authority given him by IVCC's bylaws and designated William Graham (Graham) to serve as the Class C director on IVCC's Board. The March 18, 2003 letter, addressed to Graham on official Commonwealth letterhead and signed by Governor Rendell, provided, in its entirety: "It is with pleasure that I write to inform you that I am appointing you as my representative to serve on the Independence Visitor's Corporation." (R.R. at 36a.) According to Graham's affidavit, Graham has not served as an official in or been employed by the Office, Graham does not have a contract with the Office, and Graham does not report to or take instructions from the Office. (R.R. at 110a.)

On January 11, 2010, Bari filed a RTKL request with the Office,*fn5 seeking the following information relating to IVCC:

1) Copies of all documentation including correspondence by and between the IVCC and/or the IVCC Board of Directors with the Governor of Pennsylvania and/or his staff from January 1, 2001 to January 9, 2010.

2) Copies of all documentation including correspondence by and between the Governor of Pennsylvania and the IVCC whereby the Governor wrote to the IVCC chairman of the Board to provide written notice of such nomination to the IVCC Board of Directors for the "Governor's Representative," in accordance with the IVCC Bylaws . . . from February 6, 1998 to January 9, 2010.

3) Copies of all IVCC meeting minutes or the equivalent ("Minutes") of the Board of Directors from its [sic] January 1, 2004 to January 10, 2010 that have been provided to Mr. Graham and/or the Governor's office including to the Governor and his staff.

(R.R. at 114a.)

On February 19, 2010, the Office granted in part and denied in part Bari's request. Specifically, the Office withheld an attachment to a letter from William W. Moore (Moore), former President and CEO of IVCC, to Governor Rendell, dated July 9, 2004, and a 2003 memorandum from Moore to Governor Rendell. The Office determined that these documents reveal "confidential proprietary information"*fn6 of IVCC and, therefore, are exempt from disclosure under Section 708(b)(11) of the RTKL, 65 P.S. § 67.708(b)(11).*fn7 The Office also denied Bari's request for IVCC's Board Minutes, reasoning:

The [Office] does not have copies of IVCC [B]oard [M]inutes within its possession, custody, or control. The [Office] has no obligation to obtain any meeting minutes or their equivalent that may be in Mr. Graham's possession because neither Mr. Graham nor the IVCC are conducting a "governmental function" for the

Commonwealth pursuant to 65 P.S. § 67.506(d).

(R.R. at 26a.) Bari did not appeal the Office's partial denial of his request to OOR. On August 3, 2010, Bari filed a second RKTL request with the Office, seeking the following information relating to IVCC:

A) Attachment to the letter dated July 9, 2004 from

[Moore] . . . to Governor Rendell. . .

B) 2003 memorandum from [Moore] to Governor

Rendell about the IVCC;

C) All meeting minutes from March 18, 2003 (the day that Governor Rendell appointed [Graham] in writing as the "Governor's Representative["] on the IVCC Board of Directors) to August 2, 2010 of the IVCC Board of Directors that are in the possession of the [Office] including in the possession of the "Governor's Representative" who Governor Rendell officially appointed to serve on the Board of the IVCC to represent the [Office].

(R.R. at 12a.)

On August 10, 2010, the Office denied Bari's request. The Office reiterated that the attachment to the July 9, 2004 letter and the 2003 memorandum are exempt from disclosure under Section 708(b)(11) of the RTKL because they reveal "confidential proprietary information" of IVCC, and that IVCC's Board Minutes are not in the possession, custody, or control of the office. (R.R. at 22a.)

The Office further denied Bari's request on the grounds that it was disruptive under Section 506(a) of the RTKL, 65 P.S. § 67.506(a),*fn8 explaining:

The RTKL does not require agencies to be unreasonably burdened by having to repeatedly answer the same request from the same requester for the same record. As you have previously requested these records and the [Office] already responded to this request for the same records, which denial was not appealed by you, your new request for the same records is denied under [Section 506(a) of the RTKL] regarding disruptive requests.

Pursuant to the RTKL, you had the right to appeal our February 19, 2010 response. You did not file an appeal regarding this RTKL request. The RTKL protects the [Office] from being unreasonably burdened by having to expend duplicative commonwealth resources for responding to yet another request from you for the exact same records that were previously requested, to which a response was made and no appeal filed.

(R.R. at 22a.)

On August 11, 2010, Bari appealed the Office's denial of his August 3, 2010 RTKL request to OOR pursuant to Section 1101(a) of the RTKL, 65 P.S. § 67.1101(a).*fn9 On August 12, 2010, IVCC asserted a direct interest in the appeal and requested the right to participate pursuant to Section 1101(c) of the RTKL, 65 P.S. § 67.1101(c),*fn10 which was granted by OOR. Thereafter, the Office and IVCC filed submissions to OOR in support of the Office's denial of Bari's RTKL request.

Without holding a hearing, OOR issued a final determination on September 13, 2010, granting Bari's appeal. OOR determined that Bari's request was not properly denied as disruptive under Section 506(a) of the RTKL, that IVCC's Board Minutes are "public records" under the RTKL, and that the requested information is not exempt from disclosure under Section 708(b)(11) of the RTKL.

On September 22, 2010, the Office requested reconsideration from OOR, which was denied on October 5, 2010. Thereafter, the Office and IVCC separately petitioned this Court for review of OOR's September 13, 2010 final determination on October 12, 2010, and October 13, 2010, respectively. By order entered November 22, 2010, this Court consolidated the subject petitions for review.

On appeal,*fn11 the Office and IVCC argue that IVCC's Board Minutes are not "public records" under the RTKL and that Bari's request was properly denied as disruptive under Section 506(a) of the RTKL. IVCC also argues that the requested information contains "confidential proprietary information" exempt from disclosure under Section 708(b)(11) of the RTKL. We address these issues in order.

The Office and IVCC argue, first, that IVCC's Board Minutes are not "public records" under the RTKL. Section 301(a) of the RTKL, 65 P.S. § 67.301(a), compels Commonwealth agencies, such as the Office, "to provide public records in accordance with this act." (Emphasis added.) Section 701(a) of the RTKL, 65 P.S. § 67.701(a), further provides that "[u]nless otherwise provided by law, a public record . . . shall be accessible for inspection and duplication in accordance with this act." (Emphasis added.) IVCC's Board Minutes, therefore, will be subject to disclosure only if they constitute "public records" under the RTKL.

Whether sought after information constitutes a "public record" is a preliminary, threshold issue that must be decided before reaching the question of whether any exceptions under Section 708 of the RTKL apply. The burden of proving that a requested piece of information is a "public record" lies with the requester. There are three sections of the RTKL relevant to determining whether requested information constitutes a "public record." Section 102 of the RTKL defines "public record," in pertinent part, as "[a] record . . . of a Commonwealth or local agency." (Emphasis added.) Section 305 of the RTKL, 65 P.S. ยง 67.305, provides, in pertinent part, that "[a] record in the possession of ...


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