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Chester Community Charter School v. Daniel Hardy

February 29, 2012

CHESTER COMMUNITY CHARTER SCHOOL, APPELLANT
v.
DANIEL HARDY, ON BEHALF OF PHILADELPHIA NEWSPAPER, LLC D/B/A THE PHILADELPHIA INQUIRER



The opinion of the court was delivered by: Mary Hannah Leavitt, Judge

Submitted: December 13, 2011

BEFORE: HONORABLE DAN PELLEGRINI, Judge*fn1 HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge

OPINION BY JUDGE LEAVITT

Chester Community Charter School (Charter School) appeals an order of the Delaware County Court of Common Pleas (trial court) directing Charter School to produce a number of salary and contract documents requested by a newspaper reporter, Daniel Hardy, on behalf of The Philadelphia Inquirer. In doing so, the trial court affirmed a decision of the Pennsylvania Office of Open Records (OOR) that the records were subject to disclosure even though they were in the possession of a private party that had contracted with Charter School. Discerning no error, we affirm.

Charter School operates two elementary schools and one middle school in Chester, Pennsylvania. It has contracted with Chester Community Charter School Management, Inc. (Management) to operate these schools on a dayto-day basis. The OOR described the relationship between Charter School and Management as follows:

[Management] provides management services to [Charter School] pursuant to a "Management Agreement", that provides that [Management] has the sole right to "supervise, manage, operate, control and direct the performance of educational services under this Agreement." [Management], among other duties, also maintains student records, develops education plans, enforces rules and regulations, and provides a complete educational program for [Charter School]. Further, all personnel working at [Charter School] are employees of [Management]. [Management] provides teaching services, records keeping, and operates and controls the educational program at [Charter School].

OOR Final Determination at 8. OOR's findings that Management directed and controlled the delivery of educational services at Charter School were adopted by the trial court.

On January 30, 2009, Hardy submitted a written request on behalf of The Philadelphia Inquirer (Requester), for certain records from Charter School.*fn2

This written request specifically invoked the Right-to-Know Law.*fn3 On March 9, 2009, Charter School responded by letter that the request was nothing more than "a blatant and improper attempt to circumvent the discovery process" in a defamation suit Charter School had filed in court against Hardy, The Philadelphia Inquirer, and Philadelphia Newspapers, Inc. (Defamation Defendants). Reproduced Record at 54 (R.R.__). Charter School added that, in any case, "many of the materials are not subject to disclosure under the Right-to-Know Law." R.R. 55. Finally, Charter School's response included 28 pages of documents. Requester appealed to the OOR.

The OOR accepted Requester's appeal on March 20, 2009. Its appeals officer, Nathan Byerly, asked Requester to extend the deadline for the OOR's issuance of a final determination to May 4, 2009, and Requester agreed. On April 16, 2009, Byerly notified the parties of the extension. On May 6, 2009, Byerly notified the parties that Requester had agreed in a telephone conversation to a second extension, i.e., to May 8, 2009, on which date OOR then issued its final determination. OOR directed Charter School to provide the requested documents.

Charter School appealed. On April 21, 2010, the trial court affirmed the OOR's final determination. Charter School filed a motion for reconsideration, and the trial court granted the motion, thereby vacating the April 21, 2010, decision. On June 21, 2010, after oral argument, the trial court vacated its order granting reconsideration and reinstated its April 21, 2010, decision. Charter School now appeals the June 21, 2010, order.

On appeal,*fn4 Charter School raises four issues. They are: (1) Requester's appeal was "deemed denied" because the OOR's final determination was not issued by May 4, 2009; (2) the appeals officer's failure to include Charter School in his ex parte communication with Requester to discuss a second extension of the final determination deadline violated Charter School's due process rights; (3) the records sought by Requester are not public records under the Right-to-Know Law; and (4) Requester's ability to pursue a Right-to-Know request was enjoined by the automatic stay issued in The Philadelphia Inquirer's bankruptcy proceeding.

In its first two issues, Charter School contends that Requester's appeal was "deemed denied" because OOR's final determination was not issued by May 4, 2009, the date set in the first extension. Charter School contends that the second extension was invalid because it was the result of an ex parte discussion between Requester and OOR's appeals officer. In support, Charter School points to Section 1101(b)(2) of the Right-to-Know Law, which states that if an "appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied." 65 P.S. §67.1101(b)(2) (emphasis added).*fn5

In response, Requester argues that its grant of a second extension to the appeals officer was entirely proper. Because the Right-to-Know Law gives the requester the sole discretion to grant an extension, Charter School's participation in the telephonic extension request made by the OOR's appeals officer was not needed. Requester dismisses Charter School's reliance upon Section 1101, noting that it does not require that a requester's extension of time to the OOR's appeals officer be made in writing. By contrast, Section 902 requires that a requester's extension of time to the agency, i.e., Charter School, to be made in writing. 65 P.S. §67.902(b)(2).*fn6 This difference in the statutory language shows that Section 1101 authorizes an appeals officer to request and obtain an extension by oral discussion with the requester. Alternatively, Requester argues that even if ...


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