Patrick Barrett, Manager
West Earl Township
157 West Metzler Road
P.O. Box 787
Brownstown, PA 17508

Re: Request for Information Under the Right to Know Act Our File No. 9602

Dear Pat:

There are many actions which the Board of Supervisors takes, such as approval to pay bills, that are effective upon the vote. Other actions, such as enactment of an ordinance, are reflected in a separate written document as well as in the minutes. There is no legal authority of which we are aware to support the claim that an action cannot become effective until written minutes of a meeting are approved.

The Township must provide certain documents under the statute known as the Right to Know Act or Open Records Act (the "Act"), 65 P.S. §66.1 et seq. However, the Township's duties under the Act are not as broad as some citizens claim.

The Act requires the Township to make certain documents available for public inspection and to allow persons to obtain reproductions of those documents. The Act contains a definition of the term "public record" which the courts have interpreted to mean that the document must be an actual minute, order or decision or must fix personal or property rights or must be an account or contract. Not every document or item in the Township's possession is a public record.

Commonwealth Court has specifically considered the request for an audio tape of a public meeting of a board of supervisors and held that the audio tape was not a public record because the written minutes were what legally fixed the rights of persons. Tapco, Inc. v. Township of Neville, 695 A.2d 460 (Pa. Cmwlth. 1997). Although there is no Commonwealth Court decision dealing with

the draft minutes of a public meeting, we believe that Commonwealth Court's reasoning in Tapco, Inc. would apply and the draft meeting minutes would not be considered a public record.

Last year the Pennsylvania Supreme Court rendered an opinion construing the limits of the Act, LaValle v. Office of General Counsel of the Commonwealth, 564 Pa. 484, 769 A.2d 449 (2001). That case dealt with a request by a state senator for a report that had been prepared by an accounting firm for PennDOT relating to the Envirotest litigation. You may recall that the state had entered into an agreement with Envirotest for emissions testing and then canceled the agreement. The Commonwealth eventually paid over $145 million to settle the Envirotest litigation, and the state senator wanted the report. The Pennsylvania Supreme Court that even though PennDOT had reviewed this report in making its decision to settle, it was not a public record:

[W]e decline to infer that by prescribing a right of public access to minutes, orders, decisions, accounts, vouchers and contracts, the General Assembly meant to expose pre-decisional, internal deliberative aspects of agency decision-making to mandatory public scrutiny. Thus, we hold that the definition of public records prescribed in the Right to Know Act does not apply to materials or portions thereof which reflect such deliberative aspects.

Id. at ___, 769 A.2d at 458.

Commonwealth Court has also rendered decisions clarifying what constitutes a public record. For example, where it is impossible to understand what approval has been granted without the accompanying application, the application is a public record as well as the resulting approval. See e.g. Tribune-Review Publishing Company v. Department of Community and Economic Development, 751 A.2d 689 (Pa. Cmwlth. 2000); Vartan v. Department of General Services, 550 A.2d 1375 (Pa. Cmwlth. 1988). However, these decisions do not mean every paper connected with a decision is a public record. The Pennsylvania Supreme Court stated that "in order to establish a right of access under the minutes/order/decisions category of public records under the Act, a citizen must demonstrate a close relationship between the requested material and an actual agency minute, order or decision fixing some right or duty. North Hills News Record v. Town of McCandless, 555 Pa. 51, 722 A.2d 1037, 1040 (1999).

If a document is a public record, such as a Township ordinance or resolution, a person who requests a copy of the document can be required to pay the cost the Township incurs to photocopy the document. In Baravordeh v. Borough Council of Prospect Park, 699 A.2d 789 (Pa. Cmwlth. 1997), Commonwealth Court specifically affirmed the procedures of Prospect Park Borough which required that persons make a written request to review public records, that the Prospect Park would make the records available within five working days of receiving the request, and that the Prospect Park would charge $0.25 per page for all photocopies. More recently, Commonwealth Court held that where a person requested that voter registration lists, which a county maintained on computer, be provided

on a computer disk, Commonwealth Court held that the county could recover the cost of the computer disk under the Act. Hessley v. Campbell, 751 A.2d 1211 (Pa. Cmwlth. 2000). Thus, if a person requested reproductions, maps or plans in the Township Comprehensive Plan which could not be done on the Township photocopier, the Township could recover the costs of having those documents reproduced.

We do not know whether the Township has adopted a resolution imposing such fees. If the Township has not, the Board of Supervisors may wish to consider adopting a policy for the inspection of public records specifically requiring persons to reimburse the Township for costs of copying.

The Township also has no obligation to compile lists or assemble data in response to a request under the Act. While a person may request to see the minutes of the Council meetings for the past five years, there is no right to demand that the Township make a list of every person who spoke at meetings or every meeting at which a specific topic was addressed. The person making the request would have to review each of the minutes himself or herself and compile the list. There are numerous court decisions which support this position. See, e.g. The Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711 (Pa. Cmwlth. 1999), affd w/out opinion, 564 Pa. 31, 764 A.2d 17 (2000).

The Act does not prohibit the Township from distributing draft copies of meeting minutes or other records which do not contain personal information such as social security numbers, etc. However, if the Township does provide these copies the Township will be setting a precedent.

If you have any questions concerning this matter, please contact me.

Very truly yours,

Josele Cleary