This summer the Court of Common Pleas upheld our right to make public the list of 60 schools identified for closure by the Boston Consulting Group as part of the District’s 2012 “Transformation Plan. ” This is the second victory on this case for Parents United and our lawyers at the Public Interest Law Center. In Spring 2013 the Pennsylvania Open Records Office ruled in our favor that the District had no right to keep this information confidential because it could not prove it had not shared the information with third parties, namely the donors who had contributed to the Transformation Plan.
No matter to District officials. They’ve already indicated their intent to appeal in order to protect this list. My guess is that they will shoot for PA Supreme Court if they lose again.
You’d think that the District would simply share the information. After all, it’s been two years – what do they have to hide?
Turns out: Quite a bit.
In their brief to the Court of Common Pleas, the District revealed that it is actually trying to redefine the notion of what should be considered internal documents. Traditionally, internal documents are those limited to members, employees and officials of that agency. We think that makes sense. There are certain pieces of information you want to only circulate internally; not everything deserves to be made public.
So what’s different about this case? Our argument is that the District didn’t keep this document internal. We believe they shared this list with at least one entity, namely the William Penn Foundation, and possibly others as well. Their defense (without clearly admitting to having done so) is that funders are a different category than the general public. Here’s what they wrote in their brief to this case:
“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.”
This is a deeply troubling argument.
The District is saying that “members of the philanthropic community” and undefined “stakeholders” get to have a different level of access than the rest of the public simply because they are paying for it. It should make a difference that some of the entities that helped contribute to the Boston Consulting Group plan had board members who were real estate developers and individuals with financial and political stakes in charter school operators. These were groups who pushed hard for school closures that rocked the District in 2012-2013, forcing 7,000 children to crowd into schools that today are worse off than the ones they attended. A number of the properties were then fast-tracked for sale.
CityEthics.org – a national organization devoted to improving ethics in local government – described the District’s argument as a “sort of pay to play” on their blog: “The sale of special access to confidential information”:
“Beyond the possible misuse of confidential information, an official could use the ruling the school board is seeking as a tactic to engage in a sort of pay to play. The official could let it be known that if contractors, developers, and grantees want a special advantage with respect to government projects and benefits, they can put up money to help pay for government work, especially in the early stages, and get special access to valuable information that results from that work. This would be a way to effectively sell confidential information without violating ethics prohibitions against allowing its use for the benefit of anyone other than the government itself. Of course, there could also be related payments to the official for allowing this special access to valuable information, in the form of campaign contributions and other legal gifts (as well as illegal ones).”
Obviously, having never seen the list of schools recommended for closure by BCG, it’s hard for us to know how relevant that 2012 list is today and whether any of the entities who paid for BCG’s work actually benefitted from it. What we do know though is that the District’s intent to redefine internal documents cannot stand. It is a fundamental abrogation of the public trust to allow pay-to-play type schemes to dictate public disclosure and influence public policy.
That’s why we’ll be headed to Commonwealth Court this year to continue this fight. We think it still matters. We hope you do too.
Many thanks to PILCOP and especially attorney Ben Geffen for their brilliant work on this case.