Antrim decision upheld in refusal to turn over documents

PAT FRIDGEN

The Pennsylvania Office of Open Records recently upheld Antrim Township’s denial of several Right-to-Know requests submitted by the Echo Pilot. Appeals officer Kyle Applegate ruled that Antrim’s reasons for turning down the requests were valid. He mailed his determination July 12.

On May 25 the newspaper filed its first request with Antrim’s RTK officer Mary Klein, asking for a copy of an email sent by supervisor Fred Young III to the other supervisors recommending changes to an option agreement for the sale of the Antrim Township Municipal Authority water system to Greencastle Area Franklin County Water Authority.

The Echo Pilot was curious about Young’s ideas. He, Rick Baer and Curtis Myers oppose the sale, while Sam Miller and James Byers are in favor.

The sale has been sidelined because of controversy on whether Antrim’s April 10, 2007 resolution exempting residents of the Hess development from mandatory connection to public water was legally binding. The hookup is required in Antrim’s ordinance, but some people in Hess think a state law passed later in the year eliminated the mandate.

Antrim never rescinded its ordinance and Greencastle thinks the law reinforces its position that Hess must connect, since a water line was installed within 150 feet of the homes in 2007. It also maintains that the issue has nothing to do with the sale of the water system.

Young lives in the Hess development. Through the years he has participated in discussions on the differences of opinion. Four times he has voted on motions concerning the sale, and four times he has abstained. Of the 10 Hess households affected by the ordinance, eight have hooked up or agreed to connect to public water by 2019. Young is one of two holdouts that has until Aug. 24 to hook up or GAFCWA will take action.

Want to know

Antrim turned down the request to view Young’s Dec. 14, 2010 email, stating it was not a docmentation of an activity of the agency, and was also protected by attorney-client privilege. The denial said the email was specially addressed to township solicitor John Lisko and the other board members. It added that even if the email was public record, it was exempt because it reflected internal deliberations, and was not the final agreement with Greencastle “but merely the thoughts on the matter of one board member.”

The Echo Pilot on June 3 then filed two requests, to see the Option Agreement approved on Dec. 14, and the list of visitors who attended  the meeting. Both documents were attached to the minutes.

Antrim denied one request, claiming the agreement contained confidential information and therefore was protected by attorney-client privilege. The agreement was also not final “but merely the thoughts on the matter of the board and the township solicitor.”

The list of visitors would be released, with a charge of 25 cents for the copy fee.

Still want to know

The Echo Pilot filed an appeal on the requests with the Office of Open Records (OOR). In explaining why it asserted the records were public, the paper said the Dec. 14 email was in the public domain in as much as Young’s recommended changes to the option agreement had been discussed at length at the meeting, adopted, and details were published in two area newspapers. The minutes also reflected that changes recommended by Young were sent to Greencastle.

Because the minutes said ‘see the attached list’ and ‘see attached Option Agreement with changes’, the Echo Pilot wanted to see them. It argued that any citizen reading the minutes should be able to read the attachments. Since the list of visitors was released, the agreement should be also.

In challenging Antrim’s reasoning, the Echo Pilot said “it is only common sense this email does document official business. Action was taken immediately after discussing the content.”

The email was not personal, and the affected agreement was changed because of it. Once the agreement was sent to Greencastle, that ended client-attorney privilege. The Echo Pilot continued that just because Lisko was a recipient did not automatically grant the privilege, and there was no indication Young asked for legal advice.

And as to whether the missive was just “thoughts”, the paper argued all comments come from thoughts and therefore thoughts were no different than public verbal statements. The Option Agreement also revealed the township’s position on the issue the moment the vote was taken so it was no longer pre-decisional.

Counteroffer

At the June 28 Board of Supervisors meeting, the board invited Echo Pilot reporter Pat Fridgen into the executive session. Lisko offered a deal. In order to save the township money for his legal fees to file a response to the OOR, Antrim would turn over a copy of the Option Agreement if the Echo Pilot withdrew its appeal regarding the e-mail. Fridgen could give a response the next day.

She notified Lisko’s office on Wednesday that the offer was not accepted and the appeal would go on.

The township argument

Lisko submitted his legal opinions to the OOR on July 5. The statement was verified, under penalty of perjury, by township manager Brad Graham. Lisko said Young’s email was marked ‘CONFIDENTIAL’ at the beginning and end; was sent to the solicitor, supervisors and township manager; and requested suggestions and feedback. It came from his personal computer. Young had no authority to act on behalf of the township; the agreement had never been ratified; the email was internal and deliberative; the supervisors received copies, but the original was never made public; and it had never been delivered to a third party. He cited case law for support.

OOR appeals officer Applegate said that the Right-to-Know Law “is designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” He emphazised that Antrim had to prove the records were exempt. While the email was indeed a record under the Right-to-Know Law, he said that because it addressed a proposed action, that was sufficient evidence to show internal status, and it was exempt from exposure.

As for the Option Agreement, Lisko had reported he personally made numerous handwritten revisions throughout the proposed agreement. Only the supervisors and staff saw those revisions. The proposed agreement with Lisko’s revisions was not attached to the online minutes, but the attachment to the regular minutes was intended only for supervisors and staff. The water system sale was still in negotiations.

Applegate concluded that because the email about the agreement was determined to be exempt, he did not have to address the attorney-client privilege criteria that Lisko also submitted in Antrim’s defense.

The final determinations were binding on all parties, but could be appealed within 30 days of the mailing to the Franklin County Court of Common Pleas. No one chose to do that.

Final try

Since Antrim had offered a peek at the Option Agreement in the counteroffer, the Echo Pilot tried one more time. It asked directly to see the document after Applegate’s ruling arrived. Antrim respectfully said no.

According to township files, Lisko charged $473 for RTK work in July. It is unclear if this pertains only to the Echo Pilot requests. He submits expenses often for such fees, including $44 for April, $715 for May and $1,837 for June.