Court rulings indicate that government agencies "may not contract away their statutory responsibility to produce public records," according to Melissa Melewsky, an attorney with the Pennsylvania Newspaper Association.
I asked Melissa about Carroll Township's denial of a request for preliminary development plans, which it says are "predecisional" and are to be kept confidential as part of the the settlement of an ongoing conflict with the developer about its plans.
Here's the back and forth, which hopefully helps shed light on the issue:
Record Tracker: Is it legal for a municipality to enter into a legal agreement that
makes public records private? Does the situation between Carroll Township and the developer reveal a loophole in open records law -- that if two parties want to keep records private, they can go to court and draw up a settlement that stipulates
that otherwise public records will be kept private?
Melissa Melewsky: "There is strong appellate court precedent that unequivocally holds settlement agreements between private parties and government agencies are public records despite any confidentiality provision contained in the agreement. It is clear from these opinions that government agencies may not contract away their statutory responsibility to produce public records.
"There is no loophole in the RTKL that allows agencies to contractually negate their obligations to produce public records. Records that are confidential pursuant to a court order can be kept private but the court order itself must be legally appropriate.
I asked Melissa about Carroll Township's denial of a request for preliminary development plans, which it says are "predecisional" and are to be kept confidential as part of the the settlement of an ongoing conflict with the developer about its plans.
Here's the back and forth, which hopefully helps shed light on the issue:
Record Tracker: Is it legal for a municipality to enter into a legal agreement that
makes public records private? Does the situation between Carroll Township and the developer reveal a loophole in open records law -- that if two parties want to keep records private, they can go to court and draw up a settlement that stipulates
that otherwise public records will be kept private?
Melissa Melewsky: "There is strong appellate court precedent that unequivocally holds settlement agreements between private parties and government agencies are public records despite any confidentiality provision contained in the agreement. It is clear from these opinions that government agencies may not contract away their statutory responsibility to produce public records.
"There is no loophole in the RTKL that allows agencies to contractually negate their obligations to produce public records. Records that are confidential pursuant to a court order can be kept private but the court order itself must be legally appropriate.
"There are situations where a court order limiting access to some
information is appropriate but the clear appellate court precedent
regarding access to settlement agreements would prohibit courts from
enforcing confidentiality provisions found in settlement agreements or
from
ratifying a request for such an order.
"My understanding of the requested documents and the situation generally is limited but the agency does not seem to rely on the settlement agreement itself as a reason for non-disclosure pursuant to section 101 of the RTKL.
"Instead, they seem to rely solely on the pre-decisional language found in 708(b)(10). If the plans have been presented to a quorum for deliberation at a public meeting, the pre-decisional exemption cannot limit access due to the board packet exception. The exact stage of the process is unknown to me but the general board packet exception found in 708(b)(10)(ii) could be applicable."
ratifying a request for such an order.
"My understanding of the requested documents and the situation generally is limited but the agency does not seem to rely on the settlement agreement itself as a reason for non-disclosure pursuant to section 101 of the RTKL.
"Instead, they seem to rely solely on the pre-decisional language found in 708(b)(10). If the plans have been presented to a quorum for deliberation at a public meeting, the pre-decisional exemption cannot limit access due to the board packet exception. The exact stage of the process is unknown to me but the general board packet exception found in 708(b)(10)(ii) could be applicable."
OOOooK
The original submitted preliminary plans were presented to the Planning Commission and Board of Supervisors in open meetings. The Board of Supervisors denied plans at that time; developer appealed Carroll Townships Board of supervisor’s decision and won. Carroll Township again appealed Courts decision to Commonwealth Court and lost that appeal as well and entered into negotiations.
In the Negotiations Procedure and Settlement Agreement (Recitals G) states
G. the Appeal is currently subject to the mediation program of the Commonwealth Court and counsel for both parties have participated in several mediation sessions with the Commonwealth Court:
Now the question is are Negotiations in the mediation program public exempt from the RTK law?
I will be interested to see the final determination
Brad CCSG