In a recent decision interpreting the Pa. Right-to-Know Law, the Pennsylvania Supreme Court ruled that the Law required the disclosure of public bids received by a private contractor standing in the shoes of a public entity.
In SWB Yankees, LLC v. Wintermantel, 45 A.3d 1029 (2012), the Supreme Court held that documents in the possession of a private entity serving as the management agent for a municipal authority in the operation of a minor league baseball stadium were subject to disclosure under the newly enacted Right-to-Know Law.
In 2008, the Multi-Purpose Stadium Authority of Lackawanna County entered into a management agreement with a private entity, which vested the private entity with the overall management and control of the day-to-day operations of a municipal-owned baseball club, the Scranton/Wilkes-Barre Yankees, and a municipal-owned minor league stadium.
When the SWB Yankees awarded a new contract for concessionaire operations at the stadium, a newspaper reporter for sought copies of the concessionaire bids from the Stadium Authority. The Authority’s solicitor denied the Right-to-Know request, stating that the Authority did not possess such information. While the Right-to-Know Law applies to certain records in the possession of third parties, like the SWB Yankees, the solicitor claimed that the SWB Yankees was not performing a governmental function on behalf of the Authority and refused to disclose the bids.
The section of the Right-to-Know Law that cover public records in the hands of private parties states as follows:
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 for purposes of this act.
The Supreme Court rejected the solicitor’s interpretation of the Right-to-Know Law, and held that the Authority was required to disclose any written concessionaire bids for the stadium.
This decision could have far-reaching consequences for public contractors across the Commonwealth. If you are a contractor performing a core and traditional government function – as opposed to simply doing work for the government – then the records of bidding and your performance will likely be subject to disclosure under the Right-to-Know Law. On the other hand, if you are a contractor performing services or work for a public entity, there is still the chance that the records of your work will be subject to disclosure.
A full copy of the Supreme Court’s decision can be found here.