Right to Know Requests and the Disappearing Revenue Stream

June 2009Alerts

A Delaware County judge over-rules the Office of Open Records. Signature Solutions v. Aston Township, DCCCP No. 4852-09.

For years school districts and other taxing authorities have charged title companies and closing companies a fee to obtain a certification of the tax imposed and owed on a property. These fees varied, but generally did not exceed $50. This was a way of raising money without raising taxes.

On January 1, 2009, when the new Right to Know Law (“RTKL”) went into effect, companies involved in real estate closings and re-financings began submitting RTKL requests instead of requests for tax certifications. Charges for RTKL requests are capped at $0.25/page (with, up to an additional dollar for certification). By March 2009, only 2 ½ months after the RTKL’s effective date, at least one school district reported it had gone from collecting $25,000 in that same 2 ½ month period a year earlier to nearly $0 in 2009. Multiplied out, this would cost that particular school district over $100,000 each year in lost revenue. In a year where school district budgets are tight, and the boards are limited in the amount they are permitted to tax, this unexpected loss of revenue was especially disheartening.

Attempts to refuse the requests claiming they were not covered by the RTKL were overruled by the Office of Open Records (“OOR”), the state-wide agency charged with implementing that law.

Recently, however, a judge in Delaware County, Judge Joseph P. Cronin, Jr., focused on an explicit limitation built-into the RTKL to decide that the OOR was wrong.

Signature Solutions, the primary company that has been making these RTKL requests, made a request of Aston Township for “printouts of the current year tax information (including INTERIM tax bills), as well as any other charges for lienable items against the real estate that [the] tax entity collects,” and also asking for “the Homestead Rebate Information where applicable.” Aston Township claimed that it would have to create a record or compile information from various sources in order to comply. On appeal, the OOR rejected Aston Township’s assertions.

When the matter went before Judge Cronin, he noted that although there were pieces of information on various computer screens that were likely public information, the only way to give all the tax information requested was to compile it. He pointed out that the RTKL explicitly states that an agency has no duty to make such a compilation. For that reason, he found that the OOR had made an error of law and reversed the OOR’s findings.

While this could be a very important decision with wide implications, it is important to note a few things. First, this was a county judge's decision that is informative about how such cases will be decided within that county, but is is not a binding state-wide decision. Second, since the time Judge Cronin issued his decision in the Aston Township case, the OOR has decided 4 other matters involving Signature Solutions. Two of those recent matters were in Delaware County. In each of those cases – including the Delaware County matters – the OOR has granted access, despite Judge Cronin’s ruling.

www.dced.state.pa.us/public/oor/jd/2009-0072_Court_Ruling.pdf

If you have any questions about the information in this alert, please contact A. Kyle Berman or any member of the Fox Rothschild Education Law Group.