This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
On February 26, 2021, the OOR entered a Final Determination holding that responsive documents in the possession of a company hired by a Commonwealth agency to “perform a governmental function on behalf of the agency” are producible under Section 506 (d) of the RTKL. Tim Wachter v. Pennsylvania of State, OOR Dkt. No. AP 2021-0292 (Feb. 26, 2021). The relevant “governmental function” in this case was the Department’s dissemination of messages encouraging people to vote and register to vote.
Background and Facts: On November 3, 2020, the Requester submitted a Request to the Pennsylvania Department of State (“Department”) seeking four kinds of records about different kinds of messages encouraging Pennsylvania residents to vote. Items 1 and 2 of the Request were about a media campaign where the Department arranged to have airplanes flying banners with “Return your Ballot” and “Vote Today” messages on them in various parts of the state. In particular, Item 2 sought:
“[a]ll emails or other correspondence, memos or documents which deal with selecting or directing which municipalities, voting districts or areas that the planes are to fly. In other words, document dealing with how the targeted areas were selected?”
Items 3 and 4 were about a mailer that was allegedly sent from VotesPA, with a similar pro-voting theme.
On November 10, 2020, the Department requested a 30-day extension to respond pursuant to RTKL Section 902(b). Thirty days later, the Requester agreed to an additional extension of time until December 14, 2020. Because there was no response by December 14, 2020, the Request was deemed denied.
On December 15, 2020, the Department provided a purchase order issued to Red House Communications, Inc., a vendor it uses for media purchases (“Red House”). The department claimed that any other records relating to Red House’s services as to the airplane campaign were protected from disclosure under RTKL Section 708 (b)(10)(i) because they were “internal, predecisional, and deliberative,” and that there were no responsive documents relating to the VotesPA mailer because the Department did not send it or have it sent.
The Requester appealed, and both parties were given the opportunity to supplement the record. The Department submitted two affidavits in support of its position. The Requester submitted a position statement contending that responsive records in Red House’s possession were producible under RTKL Section 506(d). On February 17, 2021, the Department submitted a supplemental position statement and a copy of a contract between Red House and a company called Van Wagner Aerial Media, LLC (“Van Wagner”), relating to the airplane campaign.
Analysis and Holding: The OOR concluded that the purchase order and Red House/Van Wagner contract were a sufficient response to Item 1, so the appeal was moot to that extent. Similarly, OOR found that the Department met its burden of proving that it had no records responsive to Item 2, because the Department’s records relating to the airplane campaign other than the purchase order and contract were internal, predecisional, and deliberative. Slip op. at 5 (citing and quoting RTKL Section 708 (b)(10)(i)(A). The Department also met its burden as to Items 3 and 4, because its affidavits established that the VotesPA mailer did not come from the Department.
However, OOR agreed with the Requester that documents responsive to Item 2 in the possession of Red House were, for purposes of the RTKL, public records of the Department that had to be produced under RTKL Section 506 (d). Section 506(d) provides in relevant part:
A public record that is not in the possession of an agency but is in the possession
of a party with whom the agency has contracted to perform a governmental function
on behalf of the agency, and which directly relates to the governmental function
and is not exempt under this act, shall be considered a public record of the agency….
Slip op. at 7 (quoting 65 P.S. § 67.506(d)(1)).
For documents in Red House’s possession to be producible under the RKTL, both of the following needed to be true: 1) Red House was performing a governmental function on behalf of the Department, and 2) the documents in question directly relate to Red House’s performance of that governmental function. OOR concluded, without much discussion, that the Department is responsible for regulating voting, which includes both the registration of voters and the sending of messages encouraging people to vote. Thus, dissemination of information that encourages voting is a government function that was delegated to Red House here. Slip op. at 8 (citing generally the Voter Registration Act, 25 Pa. C.S. §§ 1101 et seq.).
With regard to the second factor, documents and information are producible from a contractor performing a governmental function if it has “‘a direct bearing on the third-party contractor’s obligations’ under the contract.” Slip op. at 9. In this case, the records sought from Red House by Item 2 of the Request were not records relating to providing airplanes and banners with messages. The records at issue related to the selection of geographical areas to be targeted with the pro-voting messages, which is an integral part of the Department’s function. “…[T]he Request is related to what was performed and how it was performed; it does not seek information about who performed it.” Slip op. at 10. For those reasons, OOR ordered Item 2 documents in Red House’s possession to be produced, other than documents identified by the Department as “internal, predecisional, and deliberative.” Id.
Bottom Line: Wachter reminds us that one function of RTKL Section 506 (d) is to prevent an agency from inappropriately protecting otherwise producible documents from disclosure by delegating one of its tasks to an independent contractor. If the task performed by the contractor is a “governmental function” of the agency that hires it, a requester may obtain documents relating to that task under the RKTL by requesting them from the agency. (1)
(1) However, the Final Determination did not cite any particular section
of the Voter Registration Act that requires the Department to
“disseminate information encouraging voter registration and
participation.” See Slip op. at 8.