Argued: March 11, 2013
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge
MARY HANNAH LEAVITT, Judge
West Chester University (University), a state university, petitions for review of a final determination of the Office of Open Records (Open Records) granting Timothy Browne's appeal of the University's denial of his request for records under the Right-to-Know Law. The University denied Browne's request because it did not possess the records he requested, which related to the employee benefits program of one of the University's construction contractors. Because Open Records erred in holding that the requested information is "directly related" to a contract delegating a governmental function, we reverse.
On March 4, 2012, Browne, the business representative for the International Brotherhood of Electrical Workers Local Union No. 98, submitted a written request to the University seeking a copy of "all benefits plans" of Brendan Stanton, Inc. (Contractor), a private company hired to perform electrical work in the construction of the University's Student Recreation Center. Reproduced Record at 001 (R.R.). Browne sought the information to determine whether the University's funds were being used by Contractor for a bona fide employee benefits program.
On March 12, 2012, the University's open records officer notified Browne by email that "[y]our request is denied pursuant to 65 P.S. §67.705. The University does not have any records in its possession relating to the request." R.R. 026. The University had previously granted a request from Browne for the certified payroll records from Contractor for its work on the Student Recreation Center. These payroll records listed each employee, the type of work performed, the hours worked, the wage rate received, and the net amount paid.
On March 14, 2012, Browne appealed to Open Records, asserting that the University has a duty under the Prevailing Wage Act to ascertain whether contractors it hires using state funds are providing their employees with bona fide benefit plans. Given that assumed duty, Browne believed the University should have information regarding Contractor's benefits plan. The University countered that it did not have the requested information in its possession and that it had no obligation to obtain it. The University further argued that Browne was not entitled to the information because it did not directly relate to a governmental function.
The University submitted a copy of its contract with Contractor, which provided that the Prevailing Wage Act would apply to the project. R.R. 088. Specifically, Rider B, Article 3, Paragraph 3.4.101 stated:
Wages: The Contractor is hereby notified that this contract may be subject to the provisions, duties, obligations, remedies and penalties of the Pennsylvania Prevailing Wage Act, 43 P.S. 165-1 ET Seq., which is incorporated herein by reference as if fully set forth herein. The Contractor should refer to Attachment 1 to determine If Prevailing Wages are applicable to this project. All provisions and regulations of the Federal and State Wages Acts shall be adhered to in the performance of this work.
Id. (emphasis added). "Attachment 1" set forth the "Prevailing Wages Project Rates" that had been established by the Pennsylvania Department of Labor and Industry's Bureau of Labor Law Compliance for the University's building project. R.R. 127-133. Attachment 1 listed the "Hourly Rate" and "Fringe Benefits" hourly rate, and the sum "Total" of those amounts, to be paid to each classification of tradesperson who worked on the project. By way of example, Attachment 1 listed the prevailing minimum wage for electricians as $62.48 per hour; this total consisted of an "hourly rate" of $40.21 and a "fringe benefit" rate of $22.27, for a total of $62.48 per hour. R.R. 128. The contract between the University and Contractor did not require Contractor to establish a benefits plan for its employees, let alone submit it to the University.
On June 20, 2012, Open Records granted Browne's appeal and ordered the University to acquire documentation from Contractor about its benefits plan and provide it to Browne. Open Records found that because Attachment 1 referred to "fringe benefits, " the benefits plan of Contractor was a public record that should be made available to Browne. The University now petitions for this Court's review.
On appeal, the University raises two arguments. First, the University argues that Contractor's benefits plan does not constitute a "record" as defined in Section 102 of the Right-to-Know Law, 65 P.S. §67.102. Second, the University argues, alternatively, that even if the benefits plan is a "record" under Section 102, it does not constitute a "public record" under Section 506(d)(1) of the Right-to-Know Law, 65 P.S. §67.506(d)(1).
The Right-to-Know Law is designed to promote transparency in the government by allowing broad public access to government information. Bowling, 990 A.2d at 824. Section 302 of the Right-to-Know Law provides that "[a] local agency shall provide public records in accordance with this act." 65 P.S. §67.302(a). The University is a state agency and is required to disclose public records. Dynamic ...