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In re Right To Know Law Request Served on Venango County's Tourism Promotion Agency

Commonwealth Court of Pennsylvania

January 3, 2014

In Re: Right to Know Law Request Served on Venango County's Tourism Promotion Agency and Lead Economic Development Agency
v.
Appeal of: Michael R. Hadley

Argued: November 14, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge

OPINION

ROBERT SIMPSON, Judge

Michael Hadley (Requester) appeals from the Venango County Court of Common Pleas' (trial court) order that affirmed the Office of Open Records' (OOR) final determination holding the Oil Region Alliance of Business, Industry and Tourism (Alliance) is not a local agency subject to the Right-to-Know Law (RTKL).[1]

Requester contends the trial court erred in applying deferential review of OOR's determination. Requester also asserts the records of the Alliance are accessible under the RTKL regardless of its status as a private nonprofit corporation. Ultimately, Requester seeks a broad construction of the definition of "local agency." Upon review, we affirm the trial court, holding the Alliance is not a local agency as a matter of law, and that its records are not otherwise accessible under the RTKL through the underlying request.

I. Background

The purpose of the Alliance is to promote economic development, recreation and tourism in Venango County and parts of Crawford County. The Alliance also owns real estate for the development of industrial parks, and it owns individual facilities for rent to industrial occupants. Representatives of the private sector comprise 21 of the 25 member governing board of the Alliance (Board). The Board sets policy and oversees the management team that directs day-to-day operations. The Alliance receives financing from its members as well as from grants by state and federal sources.

Requester submitted a request to the Alliance seeking employee names and salary information. The Alliance denied the request, responding that it is not an agency subject to the RTKL; rather, it is a private nonprofit corporation. Requester appealed the Alliance's denial to OOR. The Alliance's alleged status as a local agency implicates jurisdiction because OOR only adjudicates appeals from Commonwealth and local agency denials.

OOR reviewed the Articles of Incorporation, Bylaws and documents from the Internal Revenue Service showing the Alliance was classified as a 501(c)(3) organization, and a public charity under Section 509(a)(1) of the Internal Revenue Code. See 26 U.S.C. §501(c)(3); 26 U.S.C. §509(a)(1). In addition, OOR reviewed the affidavit of John R. Phillips, President and Chief Operating Officer, attesting that the Alliance was the same private corporate entity that OOR held was not subject to the RTKL in Styborski v. Oil Region Alliance, OOR Dkt. No. AP 2010-0272, (Pa. OOR, filed Apr. 26, 2010).

Requester countered, submitting a verified position statement alleging the Venango County (County) Commissioners designated the Alliance to serve as its "tourism promotion agency."[2] As a result, the request should be viewed as having been served upon the County's tourism promotion agency, not the Alliance.

As in the prior case, OOR ruled the Alliance did not qualify as an agency, or "similar governmental entity, " and it denied Requester's appeal. See Hadley v. Oil Region Alliance, OOR Dkt. No. AP 2012-0184 (Pa. OOR, filed March 26, 2012). Requester appealed OOR's final determination to the trial court.

The trial court rendered findings of fact and conclusions of law, holding the Alliance did not qualify as an agency under the RTKL. The trial court concluded that OOR did not commit an error of law or violate any constitutional rights, and that its determination was supported by substantial evidence. The trial court analyzed case law, and it reasoned the Alliance did not perform an essential government function and was not sufficiently connected to or controlled by government to qualify as an agency under the RTKL.

Requester appealed to this Court.[3]

II. Discussion

Requester challenges whether the trial court applied the proper standard and scope of review when it deferred to OOR. Requester also asserts the trial court erred in failing to conclude the records of the Alliance are accessible despite its status as a private entity pursuant to our Supreme Court's decision in SWB Yankees LLC v. Wintermantel, 615 Pa. 640, 45 A.3d 1029 (2012). Requester contends this Court can direct disclosure as if the County received his request.

The primary issue before the Court is whether, as a matter of law, the Alliance qualifies as a "local agency, " as that term is defined in the RTKL.

A. Proper Standard of Review

Requester first argues the trial court erred by applying a deferential standard of review to OOR.[4] The Alliance responds the trial court applied the proper standard of review pursuant to Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Cmwlth. 2010) (en banc), aff'd, Pa. __, __ 75 A.3d 453 (2013).

In its opinion, the trial court cited a deferential standard of review. The trial court began its analysis by stating, "[T]he standard of review as it currently exists over an appeal from an agency requires us to affirm the administrative adjudication unless we find an error of law was committed, that constitutional rights were violated, or that any findings of fact were not supported by substantial evidence of record." Tr. Ct., Slip Op., 11/21/12, at 4.

At the time the trial court issued its decision, our Supreme Court had not resolved the appeal in Bowling. This Court's en banc decision in Bowling, which pertained to a Commonwealth agency, held the first level of court review under Chapter 13 of the RTKL was de novo and independent. In our decision, this Court rejected the traditional deferential ...


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