Public Officials Cannot “privatize” Their Communications

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A Commonwealth Court of Pennsylvania decision dated February 5, 2015 has provided citizens and public officials with further clarification as to what information constitutes a “public record” and, therefore, is accessible to citizens under the recently amended Pennsylvania Right to Know Law, and what remains private information and, therefore, inaccessible to citizens of the Commonwealth.  In the case of Paint Township v. Robert L. Clark, the Court was asked to consider whether a citizen’s request for the cell phone records of a Township Supervisor for a cell phone owned by the Township Supervisor was accessible under the Pennsylvania Right to Know Law.  In this case, the requestor requested, among other things, the content of all incoming or outgoing text, picture and video messages.   

Just a few months prior to Mr. Clark’s Right to Know request, the Township had ceased providing a publicly funded  cell phone to the Supervisor in question, at which point the Supervisor entered into a private contract with the cell phone carrier.  However, even though the Township no longer provided the cell phone to the Supervisor, the Township did pay the Supervisor a monthly reimbursement of the Supervisor’s private cell phone.  In reviewing the trial court’s earlier decision, the Commonwealth Court noted that the Township was required by order of the trial court to provide the requestor with redacted phone records for the Supervisor’s phone, but only for phone calls among the Township supervisors dealing with Township business.  The trial court had determined that the Supervisor’s cell phone records, after he personally assumed the phone number, were public records created by a public official to the extent that they documented Township business and were, therefore, subject to disclosure pursuant to the Right to Know request.   

The Commonwealth Court, in affirming the trial court’s decision, stated that people in positions of public power cannot hide from constituents by simply “privatizing” their communications.  The Court further stated that while the Supervisor may wish to hide behind his status as a private citizen, he cannot divorce himself from his responsibility and duties as a Township Supervisor.  Ultimately, the Court reaffirmed its earlier decision in the case of Barkeyville Borough v. Stearns, in which a requestor sought emails between borough council members from the personal computers owned by certain council members. The Court in that case ruled that emails between council members in which Borough business was discussed, constituted actions in their official capacities as elected officials and that, as such, the requested records constituted public records even though the information was located on council member’s personal computers.  Consistent with its decision in Barkeyville, the Commonwealth Court has now ruled that the phone records of public officials, inasmuch as they relate to public business, likewise constitute public records to which a requester filing a Right to Know request is entitled.   

In adopting its reasoning from its  earlier pronouncement in the Barkeyville case, the Commonwealth Court reiterated that, if the Court allowed council members to conduct business through personal email accounts to evade the Right to Know law, the law would serve no function and would result in all public officials conducting public business via personal email. 

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