A little more than seven years ago, Pennsylvania overhauled its Right-to-Know Law (“RTKL”) and enacted new legislation that drastically changed the process, procedure and, most importantly, the burden of proof when it comes to access to government records. Under the new and improved RTKL, the burden is now on the government to prove that records are not subject to public disclosure, rather than, as it was under the prior version of the law, the burden being on the requester to prove that they are subject to disclosure. In similar fashion, a third party contractor who performs a “governmental function” for a Commonwealth or local agency, and whose records directly relate to the performance of that “governmental function,” now also bears the burden of proof of showing its otherwise private records are not subject to public disclosure.
The most common situation in which the otherwise private records of a third party contractor can be subject to public disclosure is when the contractor’s records are in the possession of a Commonwealth or local agency. Under the RTKL, a record possessed by a Commonwealth or local agency is presumed to be public. Thus, government contractors must be conscious of, and careful about, what records they submit to a Commonwealth or local agency and how they correspond with that agency, with the understanding that any document they voluntarily provide or any email they send to the agency could be subject to disclosure under the RTKL.
But the concerns of government contractors under the RTKL do not end with an agency’s mere possession of an otherwise private record. The revised RTKL also firmly establishes that records created by a third party contractor, and still in the possession of the third party contractor, are subject to disclosure if two conditions are met: (1) the third party contractor performs a “governmental function” on behalf of the agency; and (2) the information sought directly relates to that “governmental function.” Thus, even records in the possession of the government contractor can be subject to public disclosure under the RTKL if the records relate to the private contractor’s performance of some function traditionally performed by a Commonwealth or local agency. And, again, the burden of proof to show that the government contractor is not performing a “governmental function,” or that the otherwise private record does not relate to the performance of a “governmental function,” falls squarely on the third party contractor.
In light of this newfound level of access to the records of government contractors, and to avoid the heavy burden of trying to establish that an otherwise private record should not be subject to disclosure under the RTKL, the following are some tips for a third party to consider when contracting with a Commonwealth or local agency.
- Limit the records you voluntarily provide to a public agency. It can’t be stressed enough, a record possessed by a Commonwealth or local agency is presumed to be subject to public disclosure.
- Limit email communications with a public agency. Avoid the creation of long email chains with agency contacts and pick up the telephone and call agency personnel whenever possible to avoid the creation of a potentially public record.
- Clearly stamp records as “Trade Secret” or “Proprietary” when applicable. The RTKL protects and specifically excludes from public disclosure any record that constitutes or reveals a trade secret or confidential proprietary information.
- Demand, by contract, notice of any RTKL requests received by the public agency. There is no requirement in the RTKL that a third party be notified that a request has been made that might lead to the disclosure of records belonging to or submitted by a government contractor.
- Disclosure of some records does grant access to all records. The RTKL does not provide unfettered access to all of the records in the possession of a third party contractor, only those records specifically related to the performance of some “governmental function.” Government contractors must actively and vigorously enforce this express limitation under the law.