Schools peppered by Right to Know requests
By Dan Berrett
Pocono Record Writer
EAST STROUDSBURG — One resident of East Stroudsburg Area School District wanted to see the internal investigation into how the district sold a classroom trailer on eBay for $1.
An aspiring school board member for that district requested all the correspondence between administrators and board members from this year.
A sitting board member asked to receive complete copies of legal bills.
These are some of the requests that reflect a flurry of activity sparked by the state's newly robust Right to Know Law. Since the beginning of the year, requests have been peppering the area's four school districts.
The requests numbered 74 countywide between Jan. 1 and Thursday. Twenty-eight of them have been in Pocono Mountain, 21 in East Stroudsburg, 18 in Pleasant Valley and seven in Stroudsburg, according to the districts.
Seven of these requests — three each in East Stroudsburg and Pocono Mountain, and one to East Stroudsburg University from the Pocono Record — have gone on to be appealed and decided on the state level, where staff lawyers at Pennsylvania's Office of Open Records hear arguments and issue final decisions. No other local government entities have fielded any appeals.
The new version of the Right to Know Law went into effect in January. It operates on the premise that records held by public agencies, such as school districts, are presumed to be public. It puts the onus on agencies to prove why records should be classified, while also streamlining the appeals process, and making those decisions transparent by placing the state's rulings on the Office of Open Records' Web site.
Statewide, 149 appeals have been filed to date, nearly a quarter of which relate to school districts, public universities and community colleges. Of this share, education institutions in the Poconos account for seven of these 35 school-related appeals.
Locally, the subjects of these appeals range widely.
In East Stroudsburg, the stymied request for the internal investigation into the trailer sale came from district resident Mike Meachem. The district probe was meant to find out exactly how a modular classroom owned by the district was sold on eBay for $1. The district had bought the unit nearly three years ago for $46,000, with transportation and setup costs bringing the total cost to $62,000.
The sale generated national headlines. It also resulted in a $15,000 gift from eBay, which also pledged to furnish technical aid to help the district in future eBay sales.
The district turned down Meachem's request on the grounds that the results of noncriminal investigations are exempt from disclosure.
Meachem appealed to the state's Office of Open Records, which ruled in the district's favor. But the officer added a caveat — just because a public agency can withhold records under the law doesn't mean it has to.
"It should be underscored that there is a strong public policy argument that taxpayers paid for the report, and therefore should be entitled to the content of the report," wrote Nathanael Byerly, the appeals officer who rendered the final decision. "If the district chooses to exercise its discretion to release this report, it has authority under the law to do that."
Rachael Heath, the district's superintendent, said the report was being kept confidential because it dealt mainly with personnel, a subject that is also exempt under the law.
Byerly used similar pro-disclosure language in two other appeals decisions regarding East Stroudsburg.
Audrey Hocker, a district board member, was rebuffed by the state last month in her appeal of a request for the district's legal bills. The reason was technical — she did not specify that her request was under the Right to Know Law or address it to the district's open records officer.
"Any such reference or inclusion of the open records officer in the request would have completely changed the dynamics of this case," Byerly wrote.
Hocker did receive legal billing records, but the names of parties to lawsuits, subjects of and parties to telephone conversations and meetings, and subjects of correspondence were apparently redacted.
Eric Forsyth, the district's director of administrative systems and Right to Know Officer, argued on behalf of the district that the material was redacted to protect attorney/client privilege, according to the text of the appeals decision.
He also pointed to Hocker's position, saying that revealing the nature of an ongoing investigation, which would be contained in the legal billing records, could jeopardize her impartiality, making her unable to render unbiased decisions in personnel and student disciplinary hearings.
Open records requests from board members are not commonly heard of, said a spokesman for the Pennsylvania School Boards Association. Meg Dilger of Pocono Mountain's board also made such a request, and partially received detailed budget information. The association thought such requests would likely become more routine as people become familiar with the law.
In an interview, Forsyth pointed out that few open records officers have a legal background, but are called upon to render legal opinions. He said he tries to make available as much information as he can, while also balancing long-term concerns.
"When you make that determination, you'd have to be pretty clear in your mind, as an officer, that there is no harm that could come to anybody because of this," he said. "And that's a very heavy responsibility."
A third appeals decision, rendered May 8, was made in response to a request to East Stroudsburg by the Rev. Andre Felder, who is running for a seat on the district's school board. Felder wanted "any and all communications between school officials from Jan. 1, 2009, to the present."
The district objected, noting that "pre-decisional" deliberations between school board members and administration were exempt under the law. Byerly, writing for the Office of Open Records, ruled in favor of Felder, finding that, while his request was broad, the district's blanket denial was "implausible."
The district's use of the exception, "if interpreted broadly enough, (could) frustrate the intent of this new (Right to Know Law) — enhanced access to government records," Byerly wrote. "The OOR's concern with the District's defense is that it may imply that the elected members of the School Board, who are bound by the public access provisions of the Pennsylvania Sunshine Act, are subverting the principles of that law by engaging in e-mail exchanges to avoid their obligation to deliberate in public."
Forsyth said the district favored openness.
"The district has made great efforts to provide a lot of information to the public, so that transparency is there," Forsyth said, pointing to hundreds of pages of invoices and financial expenditures that are routinely put online before board meetings.
But he said such efforts may spark efforts to probe even more deeply, and request records that may not exist. He also pointed to the cost in staff time and legal advice that these requests generate. "There's a significant burden placed in time and research," Forsyth said.
Pocono Mountain, which has had three of its denials for information appealed on the state level, echoed that sentiment.
"We're supportive of the law, but there's a trade-off," said Wendy Frable, Pocono Mountain's director of public information. The district has devoted more than 100 hours of staff time and incurred nearly $6,000 in legal bills, according to a report by Dwight Pfennig, the district's superintendent, to the school board earlier this month.
"The reason he did that presentation is that he wants taxpayers and the board to know it doesn't come without a cost," Frable said of the new law.
The report also highlighted the subjects of requests: mileage logs, the district's strategic plan, teachers contracts, and invoices for tires, among others.
Pocono Mountain has lost two of the three appeals filed to the state. In two of them, it improperly redacted names, home addresses, and tax exempt information, among other information about contractors, based on assumptions from case law applicable to the old law.
A third ruling, which was upheld by the state, came in response to Meachem, who was looking for copies of contracts, performance reviews and the letter of termination for Tom Dirvonas, who used to serve as that district's solicitor and continues to work in that role for East Stroudsburg. The district searched its records and copies of minutes and agendas, and provided one record, unspecified in the ruling.
"Folks assume we have more records than we actually do," Frable said. She predicted that the volume or requests would start to slow down as citizens get used to the new law.
Pocono Record Writer
EAST STROUDSBURG — One resident of East Stroudsburg Area School District wanted to see the internal investigation into how the district sold a classroom trailer on eBay for $1.
An aspiring school board member for that district requested all the correspondence between administrators and board members from this year.
A sitting board member asked to receive complete copies of legal bills.
These are some of the requests that reflect a flurry of activity sparked by the state's newly robust Right to Know Law. Since the beginning of the year, requests have been peppering the area's four school districts.
The requests numbered 74 countywide between Jan. 1 and Thursday. Twenty-eight of them have been in Pocono Mountain, 21 in East Stroudsburg, 18 in Pleasant Valley and seven in Stroudsburg, according to the districts.
Seven of these requests — three each in East Stroudsburg and Pocono Mountain, and one to East Stroudsburg University from the Pocono Record — have gone on to be appealed and decided on the state level, where staff lawyers at Pennsylvania's Office of Open Records hear arguments and issue final decisions. No other local government entities have fielded any appeals.
The new version of the Right to Know Law went into effect in January. It operates on the premise that records held by public agencies, such as school districts, are presumed to be public. It puts the onus on agencies to prove why records should be classified, while also streamlining the appeals process, and making those decisions transparent by placing the state's rulings on the Office of Open Records' Web site.
Statewide, 149 appeals have been filed to date, nearly a quarter of which relate to school districts, public universities and community colleges. Of this share, education institutions in the Poconos account for seven of these 35 school-related appeals.
Locally, the subjects of these appeals range widely.
In East Stroudsburg, the stymied request for the internal investigation into the trailer sale came from district resident Mike Meachem. The district probe was meant to find out exactly how a modular classroom owned by the district was sold on eBay for $1. The district had bought the unit nearly three years ago for $46,000, with transportation and setup costs bringing the total cost to $62,000.
The sale generated national headlines. It also resulted in a $15,000 gift from eBay, which also pledged to furnish technical aid to help the district in future eBay sales.
The district turned down Meachem's request on the grounds that the results of noncriminal investigations are exempt from disclosure.
Meachem appealed to the state's Office of Open Records, which ruled in the district's favor. But the officer added a caveat — just because a public agency can withhold records under the law doesn't mean it has to.
"It should be underscored that there is a strong public policy argument that taxpayers paid for the report, and therefore should be entitled to the content of the report," wrote Nathanael Byerly, the appeals officer who rendered the final decision. "If the district chooses to exercise its discretion to release this report, it has authority under the law to do that."
Rachael Heath, the district's superintendent, said the report was being kept confidential because it dealt mainly with personnel, a subject that is also exempt under the law.
Byerly used similar pro-disclosure language in two other appeals decisions regarding East Stroudsburg.
Audrey Hocker, a district board member, was rebuffed by the state last month in her appeal of a request for the district's legal bills. The reason was technical — she did not specify that her request was under the Right to Know Law or address it to the district's open records officer.
"Any such reference or inclusion of the open records officer in the request would have completely changed the dynamics of this case," Byerly wrote.
Hocker did receive legal billing records, but the names of parties to lawsuits, subjects of and parties to telephone conversations and meetings, and subjects of correspondence were apparently redacted.
Eric Forsyth, the district's director of administrative systems and Right to Know Officer, argued on behalf of the district that the material was redacted to protect attorney/client privilege, according to the text of the appeals decision.
He also pointed to Hocker's position, saying that revealing the nature of an ongoing investigation, which would be contained in the legal billing records, could jeopardize her impartiality, making her unable to render unbiased decisions in personnel and student disciplinary hearings.
Open records requests from board members are not commonly heard of, said a spokesman for the Pennsylvania School Boards Association. Meg Dilger of Pocono Mountain's board also made such a request, and partially received detailed budget information. The association thought such requests would likely become more routine as people become familiar with the law.
In an interview, Forsyth pointed out that few open records officers have a legal background, but are called upon to render legal opinions. He said he tries to make available as much information as he can, while also balancing long-term concerns.
"When you make that determination, you'd have to be pretty clear in your mind, as an officer, that there is no harm that could come to anybody because of this," he said. "And that's a very heavy responsibility."
A third appeals decision, rendered May 8, was made in response to a request to East Stroudsburg by the Rev. Andre Felder, who is running for a seat on the district's school board. Felder wanted "any and all communications between school officials from Jan. 1, 2009, to the present."
The district objected, noting that "pre-decisional" deliberations between school board members and administration were exempt under the law. Byerly, writing for the Office of Open Records, ruled in favor of Felder, finding that, while his request was broad, the district's blanket denial was "implausible."
The district's use of the exception, "if interpreted broadly enough, (could) frustrate the intent of this new (Right to Know Law) — enhanced access to government records," Byerly wrote. "The OOR's concern with the District's defense is that it may imply that the elected members of the School Board, who are bound by the public access provisions of the Pennsylvania Sunshine Act, are subverting the principles of that law by engaging in e-mail exchanges to avoid their obligation to deliberate in public."
Forsyth said the district favored openness.
"The district has made great efforts to provide a lot of information to the public, so that transparency is there," Forsyth said, pointing to hundreds of pages of invoices and financial expenditures that are routinely put online before board meetings.
But he said such efforts may spark efforts to probe even more deeply, and request records that may not exist. He also pointed to the cost in staff time and legal advice that these requests generate. "There's a significant burden placed in time and research," Forsyth said.
Pocono Mountain, which has had three of its denials for information appealed on the state level, echoed that sentiment.
"We're supportive of the law, but there's a trade-off," said Wendy Frable, Pocono Mountain's director of public information. The district has devoted more than 100 hours of staff time and incurred nearly $6,000 in legal bills, according to a report by Dwight Pfennig, the district's superintendent, to the school board earlier this month.
"The reason he did that presentation is that he wants taxpayers and the board to know it doesn't come without a cost," Frable said of the new law.
The report also highlighted the subjects of requests: mileage logs, the district's strategic plan, teachers contracts, and invoices for tires, among others.
Pocono Mountain has lost two of the three appeals filed to the state. In two of them, it improperly redacted names, home addresses, and tax exempt information, among other information about contractors, based on assumptions from case law applicable to the old law.
A third ruling, which was upheld by the state, came in response to Meachem, who was looking for copies of contracts, performance reviews and the letter of termination for Tom Dirvonas, who used to serve as that district's solicitor and continues to work in that role for East Stroudsburg. The district searched its records and copies of minutes and agendas, and provided one record, unspecified in the ruling.
"Folks assume we have more records than we actually do," Frable said. She predicted that the volume or requests would start to slow down as citizens get used to the new law.
