Is “right to know” the new “pay to play”?

 (This piece is a cross-posting of my article that originally appeared at the Philadelphia Public School Notebook)

Pay to play” is a widely reviled practice in government, but that’s effectively what the District’s legal argument would establish through its challenge of an open records case in state court.

For more than 10 months, Parents United for Public Education and our lawyers at the Public Interest Law Center of Philadelphia have been fighting to make public the Boston Consulting Group’s list of 60 schools recommended for closure and the criteria it used for developing the list. In 2012, BCG contracted with the William Penn Foundation to provide “contract deliverables,” one of which was identifying 60 public schools for closure. William Penn Foundation solicited donations for this contract, including some from real estate developers and those promoting charter expansion. The “BCG list” was referred to by former Chief Recovery Officer Thomas Knudsen in public statements. But District officials refused to release the list, saying that it was an internal document and therefore protected from public review.

In April 2013, Parents United and PILCOP won our case with the Pennsylvania Office of Open Records, largely because the District appears to have shared the BCG list with top officials at the William Penn Foundation. Now the District is taking its challenge to state court.

District officials aren’t just going to court to block the release of the BCG list. They want to completely redefine what it means to declare a document internal. In particular, the District’s arguments show that it believes that certain selectively defined groups — specifically donors — can essentially buy their way to specialized access otherwise denied to the public.

Here’s their rationale.

“William Penn Foundation’s role was that of a grantor who funded the second phase of BCG’s consultant services. As grantor, the philanthropic entity had the right – and indeed an affirmative duty – to know that BCG’s services were rendered and to review the work product prior to issuing payment to the consultant. While the School District appreciates and makes every attempt to facilitate the underlying purpose the RTKL, the OOR erred by ordering disclosure of records because the records may not have been kept “internal.”

Certainly, public agencies must be allowed to engage stakeholders and members of the philanthropic community without fear that sensitive and otherwise predecisional deliberative records would be subject to disclosure. In this case, records were not shared with other citizens, advocacy groups or for-or non-profit organizations and denied to the Requester. Rather, some of the records may have been shared with a ‘grantor’ although Mr. Knudsen could not recall a specific instance of such disclosure.”

The state’s definition of “internal” is limited to “members, officials and employees” of an agency. But if the District has its way, “stakeholders and members of the philanthropic community” will now receive enormous privileges once afforded to a small, restricted class. In this case, the privilege is being able to submit undisclosed advice to top District decision makers “without fear” of disclosure. Are we really OK with saying that being a big donor exempts you from requirements that apply to everyone else? Are we OK with the District designating certain members of the public for “internal” privileges while selectively denying access to others?

Is the new definition of “right to know” now “pay to know”?

Consider this situation. Last month, an anonymous donor contributed more than $200,000 to re-open the libraries of Masterman and Central High School. What type of “internal” privileges could be afforded this donor under this exemption? Sitting in on high school selection decisions? Where are the lines? It’s a slippery slope.

It’s important to remember that in 2012, the Boston Consulting Group came under intense criticism for a controversial plan that promoted school closings, massive charter expansion, and privatization of key functions within the District. In December 2012, Parents United filed a complaint with the City Ethics Board about whether the contract between the William Penn Foundation and BCG amounted to lobbying (as opposed to “philanthropy”). What’s at stake is more than just a list of schools. It’s a fundamental question of the integrity and public nature of decisions that carry massive impact and hold enormous consequences for parents and families.

The closing of 24 schools in Philadelphia remains the single most important issue of the year. The closings affected more than 9,000 students and transformed school communities. They also had an impact on political and real estate dealings, with tens of millions of dollars at stake. Last week, city leaders guaranteed a $61 million swap to fast-track real estate deals for shuttered school buildings. News reports indicate that several, mostly unnamed, buyers have shown interest in sweeping up all the properties for a single sum — in one case, an offer of $100 million.

Given the stakes, it is absolutely the public’s right to know what’s in the documents presented to the District. Throughout most of the decision-making process regarding the school closings, the public was kept in the dark. If others – especially deep-pocket donors – had a chance to weigh in, shape the criteria, and vet the school closings list before it became a public document, that should matter, and matter deeply, to all of us.

Once again the District seeks to blur the lines separating the public good from private interest on issues of dramatic importance to parents, students, and the broader community.

Oral arguments for this case will be scheduled.

Read the District’s brief here: