Court Rules Governor's Schedule Safe From Prying Eyes

A sharply divided Commonwealth Court has ruled that the Governor has no obligation to produce his daily schedule, at least to the extent that doing so would reveal "predecisional deliberations." This 4-3 decision comes in response to an open records request made by Associated Press reporter Mark Scolforo. Previously, the state Office of Open Records had ruled in favor of disclosure.

Interestingly, both the Majority and Minority Opinions are written by judges from the Lehigh Valley. Renée Cohn Jubelirer, who wrote on behalf of four judges, is a former South Whitehall Township Commissioner who served as an attorney for Lehigh County. Writing for the Minority, Robert "Robin" Simpson is a former Northampton County judge.

While acknowledging that the Right-to-Know is designed to prohibit secrets, scrutinize the actions of public officials, and make them more accountable, Judge Jubelirer reasons that compelling disclosure in this case would "eviscerate" the "predecisional deliberation" exemption. In this case, the matter was remanded to the state Open Records Office for an in camera determination whether the records excluded really would reveal inside baseball.

But Judge Simpson, noting that the Governor's Office had already submitted an Affidavit, concludes that Jubelirer's decision creates a "new, time-consuming process" that "rewards vagueness and burdens requesters."

I suspect this case is headed to the Court of Final Error.

State Senate Refuses to Produce Browne's NIZ Emails

On Tuesday, I filed right-to-know requests with State Senator Pat Browne, State Representative Jennifer Mann and Allentown Mayor Ed Pawlowski. In Senator Browne's case, I am seeking any of his email exchanges, over the last year, concerning the Allentown NIZ, with Mayor Ed Pawlowski, State Rep. Jennifer Mann, NIZ participants Joe Topper and JB Reilly and lobbying firm Pugliese Associates.

Yesterday, my request was rejected on the basis that those emails are not "legislative records," as defined under the Right-to-Know Law. In crafting this Open Records law, state legislators created more restrictive rules for themselves than local government or even the executive branch. In other words, they are unwilling to practice what they preach.

Facially, this rejection seems correct.

I'll be reviewing this over the weekend. If anyone out there is aware of any decision requiring a state legislator to produce emails, please let me know.

I think the public has a right to know what the Hell was going on, especially with Pugliese.

Commonwealth Court: Emails Subject to Right to Know

Are individual emails of Council members, school directors and Commissioners subject to Pennsylvania's Right to Know Law? According to a Commonwealth Court decision filed this week, you betcha.' But the Court carved out an exception for personal emails that have nothing to do with the public's business.

This opinion is the result of a Right-to-Know request filed by The Morning Call, seeking the emails of individual Easton School Board members.

Interestingly, the Court has ruled that not all emails sent from or received by a public computer constitute "public records" subject to the right to know. Personal emails can be excluded. But individual emails that address agency business must be produced.

NorCo Council Follows Open Records Breach With Sunshine Act Violation

During County Council's December 8 meeting, Council members huddled in executive session to decide what to do in response to a November 23 Open Records Office Order  (2011-1406_OHare-Northampton_County.pdf) , requiring Council member Tom Dietrich to fork over a note, or its "reasonable facsimile."

Dietrich had scribbled that little missive during an October 6 Council meeting, while Ron Angle was in the middle of announcing that landfill magnate Charles Chrin would make a $2 million contribution to the County for farmland preservation, with the money coming from lot sales at Chrin's planned industrial park. The County's video of the meeting (1:06:00) shows Dietrich writing and handing this note to Ann McHale. She can be heard agreeing with whatever is written.

"Anything you could share with us, Mr. Deitrich?" asked Angle.

"No. That was between he and I," answered McHale, as Dietrich remained mute.

Having been informed that Dietrich had accused Angle in that note of bribery, this freelance reporter filed a Right-to-Know request for the note or a reasonable facsimile the very next day, claiming that when one Council member accuses another of bribery during a public meeting, the public has a right to know about it.  Council refused, claiming (1) the note does not exist; (2) if it does, it is not a public record; and (3) if it is a public record, it's exempt.

But the Office of Open Records (2011-1406_OHare-Northampton_County.pdf) disagreed, ordering Dietrich to produce the note, which is what forced Council behind closed doors on December 8, as they decided what to do.

When they emerged from the back room, Council Solicitor Phil Lauer announced that Council had reached a "consensus" and had apparently directed him, behind closed doors, to appeal the Open Records determination.  But because the Sunshine Act requires all official actions to be taken during a public meeting, this freelance reporter objected to a perceived violation, as specifically authorized under the open meetings law.

When Council was forced to vote in the open, the supposed "consensus" evaporated. Only Council President John Cusick and Lamont McClure authorized the Solicitor to appeal, with Dietrich and McHale abstaining.

21 Lehigh Valley Municipalities in Violation of Right-to-Know Law

Yesterday, I told you that Pennsylvania's Right-to-Know Law [RTKL], effective since 2009, requires every municipality with a webpage to post the following information:

(1) Contact information for the open-records officer.
(2) Contact information for the Office of Open Records or other applicable appeals officer.
(3) A form which may be used to file a request.
(4) Regulations, policies and procedures of the agency relating to this act.

I was right about that, but when I claimed that neither Bethlehem nor Northampton County includes this information on their webpages, I was dead wrong. We can all have different opinions, but facts are facts, and I got it wrong. So I apologize for leading you astray.

After going to confession to some Fake Rev who wanted me to roll on the floor and start shaking, I decided to impose my own penance. I have looked at every municipal webpage I can find in the Lehigh Valley, and here's what I've learned:

(1) Every Lehigh County municipality now has its own webpage;
(2) I am unable to find webpages for six Northampton County municipalities;
(3) 35 Lehigh Valley municipalities contain the required RTKL information;
(4) 21 LV municipal web pages, 13 of them from Northampton County, have never implemented the RTKL information required by state law.

Below are the dirty details.

Municipal Webpages Complying with RTKL:

Allentown (RTKL link here).

Bethlehem City (RTKL link here).

Bethlehem Township (RTKL link here).

Catasauqua (RTKL link here).

East Allen Township (RTKL link here).

Emmaus Borough (RTKL link here).

Easton City (RTKL link here).

Forks Township (RTKL link here).

Freemansburg Borough (RTKL link here).

Hanover Township (RTKL link here).

Hanover Township (Lehigh County) (RTKL link here).

Heidelberg Township (RTKL link here).

Lower Macungie Township (RTKL link here).

Lower Milford Township (RTKL link here).

Lower Mount Bethel Township (partial compliance) (RTKL contact info only).

Lower Nazareth Township (RTKL link here).

Lower Saucon Township (RTKL link here).

Lynn Township (RTKL link here).

Macungie Borough (RTKL link here).

Nazareth Borough (right on the home page)

Northampton Borough (RTKL link here).

North Whitehall Township (RTKL link here).

Palmer Township (RTKL link here).

Pen Argyl Borough (RTKL link here).

Plainfield Township (on home page).

Salisbury Township (RTKL link here).

Slatington Borough (RTKL link here).

South Whitehall Township (RTKL link here).

Upper Macungie Township (RTKL link here).

Upper Milford Township (RTKL link here).

Upper Nazareth Township (on home page)

Upper Saucon Township (RTKL link here).

Washington Township (Northampton County) (RTKL link here.)

Whitehall Township (RTKL link here).

Williams Township (RTKL link here).

Municipal Webpages at which I could find no RTKL information:

Alburtis Borough

Allen Township

Bath Borough

Bushkill Township

Coplay Borough

Coopersburg Borough

East Bangor Borough

Fountain Hill Borough

Hellertown Borough

Lehigh Township

Lowhill Township (But the Township began video-taping its meetings in January 2011).

Moore Township

North Catasauqua Borough

Roseto Borough. But this page does have a very nice poem.

You America, are not Roseto,
But I, Roseto, am America.

Tatamy Borough

Upper Mount Bethel Township. (Caveat, I am unsure whether this is really a municipal web page, or what the hell it is. It also runs ads and has a business directory.)

West Easton Borough

Wilson Borough - Amazingly, this municipal web page does contain a now-defunct link to Lou Pektor's Dixie lofts.

Wind Gap Borough

Washington Township (Lehigh County)

Weisenberg Township

Municipalities with no webpage:

Bangor Borough, Chapman Borough, Glendon Borough, Portland Borough, Stockertown Borough, Walnutport Borough.