Bucks County officials who responded to a Right-to-Know request last year seeking insight into how Covid-19 policies were formulated, and how those policies affected public schools, claim the request was “insufficiently specific.”
That was the argument advanced for the purpose of denying the request in the “Matter of Kevin Mooney and The Commonwealth Foundation vs. The Bucks County Intermediate Unit,” which went before Pennsylvania’s Office of Open Records (OOR) in June 2022. The request was initially filed the previous April and separated out in parts “A, “B,” and “C” sought records
Attorneys for the Bucks County Intermediate Unit cited the office’s “three-part balancing test” in their response to the appeal from The Commonwealth Foundation challenging the unit’s refusal to release public records. That test involves the need for requestors to 1) identify a “transaction or activity,” 2) point to a “discrete group of documents,” and to 3) limit the request to a finite time frame.
For the record, Part A of the request asked for: “all inbound and outbound emails (including all attachments) and regular mail delivered or sent by the United States postal system for the following persons in the Bucks County Intermediate Unit from the dates of June 14, 2021 to July 30, 2021.” Those named individuals included Mark Hoffman, the executive officer, Rebecca Robert-Malamis, the executive deputy director, and in-house legal counsel, Alison Bilohlavek, the CFO and business administrator, Edwina Frasca-Stuart, director of teaching, learning, and staff development, and Paula Harland, the Right-to-Know officer, to name a few. Part A gave a date range of June 14, 2021, to July 30, 2021. Parts B and C repeated the same request but asked for additional date ranges of Aug. 2, 2021, to Sept. 30, 2021, and Oct. 4, 2021, to Nov. 24, 2021, respectively.
“[The] request is insufficiently specific,” attorneys for the Bucks County Intermediate Unit said in their response to the appeal from the foundation challenging the unit’s refusal to release the information in question. Harland, the unit’s Right-to-Know officer, explained in an affidavit attached to the unit’s response, that she made a “good faith effort” to search for the requested emails. Harland found 4,668 potential emails responsive to Part A of the request, 8,298 potential emails responsive to Part B, and 6,665 emails responsive to Part C.
The intermediate unit, and its attorneys, stated in their response that the required search “would create an unreasonable burden based on the number of records…” Since the request also identified “eight of the highest administrative tiers of the Bucks IU,” the unit’s legal team observed that “it is likely” the requested records would contain student information protected by privacy laws. Therefore, each of the potentially responsive emails would need to be reviewed, the unit’s attorneys said, so as to ensure that student privacy is protected.
While Pennsylvania’s Right-to-Know statute, and the case law attached to it, correctly safeguards against open-ended, voluminous requests, it is also possible to require a level of specificity that defeats the purpose of the law.
A few questions come to mind: Where Covid-19 policies are concerned, should Bucks County residents be expected to know about and identify a conservation between a superintendent and principal before they can see the conversation? In the event there is exempt information pertaining to student privacy, is it permissible to deny the entire request rather than redacting portions? Where should government agencies draw the line about what is an unreasonable burden? Is it at 100 documents? Or, does it become unreasonable when it hits a 1,000? Section 1308 (1) of the Right-to-Know law states that agencies can’t put “a limitation on the number of records which may be requested or made available for insertion or duplication.”
In its final determination issued last August, the appeals officer concluded that the keywords did not intersect with “well-known matters of unit business” and that the 45-day time periods attached to the three parts of the request were not “short enough” to provide the unit with “sufficient context” to determine which records were relevant. But the appeals officer also said that a five-day time frame would accommodate open records requirements. “Nothing in this final determination prevents the Requester from filing a more specific RTKL request for the same information…,” the officer says. It’s worth noting that neither the unit nor the appeals office denies that there are a substantial number of responsive records.
So apparently, emails pertaining to “Covid-19,” “school closures,” “coronavirus, “masks,” the teachers’ unions and the state health department, did involve unit business after all; never mind how “well known” it was. The appeals officer also indicated “school guidance as it relates to Covid-19 or school closures,” qualifies as an appropriate subject matter.
The Bucks County tap dance over keywords and subject matters appears to be designed with an eye toward making records requests more arduous. At one point the county criticizes the information request for using keywords without a subject and then pivots to criticize the request for giving subjects without keywords. There’s an obvious contradiction here. Fortunately, the open records office seems receptive to additional Right-to-Know requests with adjustments and modifications built around tighter time frames and subjects that flush out keywords in greater context.
All of this matters because the General Assembly created the state’s 29 intermediate units to operate as “regional education service agencies” and as advocates for students in public and private schools. However, email records, and other correspondence — brought to light thanks to the heavy lifting of Bucks County parents and community activists — suggest their local intermediate unit has been going sideways. These records indicate Bucks County government figures took stage direction from the Wolf administration and from the Pennsylvania State Education Association during the Covid-19 pandemic in contradiction to their stated mission.
The Bucks County Intermediate Unit, for instance, describes itself as an “educational service agency dedicated to compassionately supporting the needs of all learners and their families, school districts” and the community at large. The unit also says it works to serve as a “liaison” between local schools and the state education department. Although it certainly appears as though the unit is instead operating as an advocate on behalf of state government officials, and their benefactors in the teachers’ unions, to county residents.
The original legislative purpose of the intermediate units remains a laudable objective. They were created to “provide cost-effective, management-efficient programs to Pennsylvania’s school districts,” and to facilitate quality instruction in traditional public schools, public charter schools, and private schools, according to the Pennsylvania Association of Intermediate Units. That’s why some of the educational reform measures now up for consideration in the General Assembly deserve heightened attention during National School Choice Week, which began on Sunday.
Sen. Judy Ward is the lead sponsor of the “Lifeline Scholarship” bill that would enable families in the lowest performing school districts to receive some of their tax dollars back in the form of scholarships to cover educational costs for K-12 students. Josh Shapiro, the newly installed Democratic governor, has expressed some support for the measure. Lawmakers could also expand existing tax credit scholarship programs to cover the costs of private school tuition.
The Commonwealth Foundation recently released a fact sheet detailing the benefits of the programs. The increasing demand for scholarships far outpaces the supply, which is something elected officials could address during current budget negotiations. While they are at it, they could also look into improving and streamlining the Right-to-Know process, so taxpayer funded government agencies are more responsive to those same taxpayers.
Kevin Mooney (@KevinMooneyDC) is an investigative reporter for the Commonwealth Foundation. He writes for several national publications.