TRANSPARENCY TUESDAY: Public record? "It depends on what your definition of 'has' is."



People often wonder why the typical public-records request is so convoluted and full of legalese -- instead of asking for "documents," a request generally will ask for something like: "All letters, memos, audiotapes, videotapes, transcripts, emails, calendar entries..." and so on until the thesaurus has been exhausted.

The reason is that, if you don't nail down all of the possibilities, a sharp-eyed government lawyer may spot the one tiny omission in your request and respond with a denial that is ultra-literally true but substantively unhelpful  (i.e., "Well, we have time sheets, but we don't have any time cards").

To illustrate, consider the case of Edinboro University of Pennsylvania, which was asked under Pennsylvania's Right-to-Know Law to produce the payroll records of a roofing company that was paid for repair work on a campus building. (When a government agency pays a private contractor to perform work, those billing records are open for public inspection even though the contractor is not itself a government actor.)

We don't have them, the university replied. And that was the literal truth.

Ah, but the university at one time did have the records -- and that was enough for the Pennsylvania Commonwealth Court, which ruled April 21 in favor of the requester.

In Edinboro University of Pennsylvania v. Ford, the court affirmed a ruling from the state Office of Open Records that the Right-to-Know Law ("RTKL") covers not only records that the agency has in its hands today, but also records that the agency "received." The court directed Edinboro to take steps to obtain the records from the roofing company and provide them to the requester.

While the case is not binding legal precedent outside of Pennsylvania, its lessons are significant for any journalist seeking public records. "We don't have it" is only the starting point of the conversation, not the end.

While it is true (as Edinboro tried to argue here) that an agency has no duty to create a brand-new record just because a requester would like it, an agency cannot escape its disclosure obligations by handing off a document to a third party or failing to keep a copy.

Tagged: public records, Transparency Tuesday