Is PIAA subject to Right-to-Know Law? State, appeals court say yes, but PIAA still fighting

Pennsylvania Interscholastic Athletic Association wants state Supreme Court to reverse Commonwealth Court decision that said organization is subject to requests for public records under 2008 law.

Ed Palattella
Erie Times-News
  • In November 2020, a Bucks County resident asked for financial and legal records from the PIAA under the Pennsylvania Right-to-Know Law
  • The request spurred a legal fight in which PIAA claimed the law did not apply to it
  • State Office of Open Records, Commonwealth Court ruled against PIAA, which is pursuing another appeal

The Pennsylvania General Assembly, the state Office of Open Records and now a state appeals court all have declared that the Pennsylvania Interscholastic Athletic Association is subject to the state's Right-to-Know Law. 

But like a football coach alarmed at a call, no matter what the findings of multiple referees, the PIAA is raising another challenge.

And the PIAA is raising the challenge even though it has been following the Right-to-Know Law since it was passed 13 years ago.

The PIAA is asking the state Supreme Court to hear an appeal of a Nov. 30 decision by the state Commonwealth Court, in which a panel of seven judges unanimously ruled that the PIAA is subject to the Right-to-Know Law, passed in 2008. The law specifically names the PIAA as one of several "state-affiliated" entities that fall under the law.

The PIAA's "classification as a 'state-affiliated entity' for purposes of the RTKL is reasonable," according to the Commonwealth Court ruling.

The Commonwealth Court decided in favor of a Bucks County resident, Simon Campbell, who requested PIAA records in November 2020. The PIAA then claimed it does not fall under the Right-to-Know Law.

Campbell, who describes himself as a First Amendment and transparency activist, characterized the PIAA's appeal request to the state Supreme Court as unnecessary, given the language of the law, the Commonwealth Court ruling and an Office of Open Records ruling that also went against the PIAA.

"It's stupid," Campbell said in an interview. "It's another tactic where they are acting in bad faith and trying to delay me access to records for which I am legally entitled."

Of the PIAA, he said, "What on Earth would make it think is it is exempt from the Right-to-Know Law when it is named in the Right-to-Know Law?"

The outcome of the appeal request before the state Supreme Court will determine whether the PIAA, the most powerful statewide organization over high school sports in Pennsylvania, must continue to produce records to the public.

The state Supreme Court is not required to hear an appeal in every case in which an appeal is sought. It typically hears appeals in cases of statewide importance or cases in which the lower courts issued conflicting decisions.

The PIAA on Dec. 23 filed for what is known as a petition for allowance of appeal before the state Supreme Court, and on that day also asked the Commonwealth Court to stay its Nov. 30 ruling pending the outcome of any appeal before the state Supreme Court. A Commonwealth Court judge is scheduled to hear the request for a stay on Tuesday.

PIAA's arguments listed, rejected

The Commonwealth Court's 28-page decision against the PIAA, published as precedent, upheld a ruling that the state Office of Open Records issued on Jan. 13, 2021.

The OOR had declared the PIAA subject to the Right-to-Know Law in response to the PIAA's appeal of a request for records by Campbell. He asked the PIAA, which includes 12 regional districts, to disclose thousands of records, including financial statements and legal communications from 2012 until around the end of 2020.

Campbell said he asked for the records after reading about a lengthy fight that The Daily Item, a newspaper in Sunbury, Northumberland County, was having with the PIAA to get records related to PIAA's District 4. That district regulates high school sports in Northumberland and eight other counties in east-central Pennsylvania.

The Pennsylvania Interscholastic Athletic Association's jurisdiction includes state football championship games like the one shown here at Hersheypark Stadium in November 2020. The PIAA is fighting its inclusion as an organization subject to the state's Right-to-Know Law.

The PIAA responded that some of the records did not exist, and that it is not subject to the Right-to-Know Law in any case. Campbell appealed to the OOR, which ruled in his favor on his records request and the Right-to-Know Law's applicability to the PIAA.

OOR decision:PA Office of Open Records rules against PIAA, affirms agency falls under Right-to-Know Law

The PIAA appealed that decision to Commonwealth Court, made up of nine elected judges. The panel of seven of the judges, in an opinion written by Judge Renee Cohn Jubelirer, rejected the PIAA's arguments that it is not subject to the Right-to-Know Law

Those contentions went up against the language of the Right-to-Know legislation that the General Assembly passed in February 2008 and updated in July 2008 before it fully went into effect on Jan. 1, 2009.

"PIAA asserts that it is no different than a myriad of other private nonprofit corporations in Pennsylvania with similar members, powers and responsibilities," Jubelirer wrote, summarizing one of the PIAA's arguments.

The PIAA, she wrote, also claimed that its inclusion in the Right-to-Know Law is unconstitutional because the PIAA does not meet the definition of "state-affiliated entity." The PIAA, according to the opinion, "declares that its inclusion in the RTKL as a state-affiliated entity bears no relationship to the purpose of the law and improperly discriminates against the PIAA."

In response, the Commonwealth Court in Jubelirer's opinion noted that the "PIAA is the de facto statewide regulator of high school sports across the Commonwealth." And the Commonwealth Court ruling reiterated a state Supreme Court finding in another case that the PIAA receives its funding from member fees from school districts and from gate receipts from athletic events that involve public high schools.

Jubelirer wrote: "As PIAA undertakes state action and is funded primarily by public school districts ..., the General Assembly’s classification of PIAA as a 'state-affiliated entity' for the purpose of qualifying as an agency under the RTKL has a rational basis and furthers a legitimate state interest of transparency in PIAA’s use of public funds in a manner that dramatically impacts students’ lives.

"PIAA’s statewide control over high school athletics and the connection between the funds it receives from its members and the Commonwealth’s taxpayers is sufficient such that its classification as a 'state-affiliated entity' for purposes of the RTKL is reasonable. Thus, it cannot be said that this classification is arbitrary or that it bears no reasonable relationship to the object of the law."

The Commonwealth Court denied, for now, Campbell's assertion that the PIAA has acted in bad faith in failing to disclose the records to him, a finding that can lead to fines. The Commonwealth Court said it could revisit the bad-faith issue depending on how the PIAA handles the disclosures in Campbell's case in the future.

Craig Staudenmaier is the Harrisburg-based lawyer who represents Campbell. Staudenmaier said the Commonwealth Court ruling reaffirms that the PIAA, while not a government agency, is still subject to the Right-to-Know Law due to its role and responsibilities and the language of the legislation. Staudenmaier specializes in cases dealing with public records and open meetings.

"It may be a unique organization out of the others named" in the Right-to-Know Law, "but that still doesn't mean it should not be included," Staudenmaier said in an interview.

He said the Right-to-Know Law also makes clear that the PIAA and other organizations subject to the law are not the ultimate owners of the public records in their possession.

"They are public records, and the agency is merely custodians of the them," Staudenmaier said.

The executive director of the PIAA, Robert Lombardi, declined to comment on the request that the state Supreme Court hear the case, saying in an email that "we don’t have any comment on active litigation."

Worried about 'frivolous' requests

Lombardi previously commented on the PIAA's rationale in fighting its inclusion in the Right-to-Know Law. He made his remarks In December 2020, when, as part of the case with the Office of Open Records, the PIAA sought to have the Commonwealth Court declare it exempt from the Right-to-Know Law. That request became part of the case that the Commonwealth Court ruled on in November.

Counter-objection:PIAA files suit in Commonwealth Court, saying Pa. Right-to-Know Law should not apply to it

Lombardi in December 2020 said the PIAA "board feels that PIAA is the only nonprofit corporation that is in the Right-to-Know Law, and we are not a state-established entity,” Lombardi said. “It seems like the legislation has singled us out as an association, and we need to have it addressed.”

Lombardi in December 2020 also said the organization has been fulfilling Right-to-Know requests, but that a few recent requests have caused the PIAA to take action against its standing under that law.

Lombardi indicated that the PIAA believed at least two requests were not serious or were overly burdensome to fulfill.

"We've had some frivolous requests like one for every check that all 12 districts and headquarters has written over the past eight years," Lombardi said at the time. "We think that is obscene and, really, what purpose does it serve? We've accommodated a lot of requests over the years.

"This isn't about not granting access to information, but more about requests that are pushing the envelope."

Lombardi did not mention Campbell's request by name in December 2020, but Campbell said the PIAA went to court because of the request he made for records a month earlier.

"The response to my request was to sue," he said.

Regarding requests under the RTKL, the state Supreme Court stated, in a 2020 decision, that "there is simply nothing in the RTKL that authorizes an agency to refuse to search for and produce documents based on the contention it would be too burdensome to do so.”

Staudenmaier, Campbell's lawyer, echoed that sentiment, saying "just because a request is burdensome because it might involve a large number of records doesn't mean you don't have an obligation to produce them in a timely manner."

Setting a precedent

The Commonwealth Court's ruling that the PIAA is a subject to the Right-to-Know Law "is the right one," said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association in Harrisburg.

"The Legislature was well within its power to define PIAA as an 'agency' subject to the law because of its funding and function," Melewsky said in an email. "PIAA receives large amounts of public funds, its board and members are primarily public school and their elected officials, and it exerts exclusive control over high school sports essentially stepping into the shoes of government in the athletics arena.

"The PIAA functions as a government decision-maker and as such, it must be transparent. The decision is also important outside the context of the PIAA because the court recognized the Legislature’s ability to bring similar entities under the umbrella of the law.

"If the decision had gone the other way, it would not be surprising to (see) similar entities seek to remove themselves from the RTKL, further chipping away at transparency in the Commonwealth."

Campbell is not giving up. Even as the PIAA stretches out the case into a kind of legal overtime, Campbell also wants to score a legal victory and get all the records he first requested in November 2020.

"Here we are in January 2022, and he still doesn't have the vast majority of the records he asked for, when they have been determined to be public records," Staudenmaier said.

"All he wants is the records he is entitled to," Staudenmaier said. "He didn't think he would have to go all the way to the Supreme Court, but he is willing to stand by his request until the end."

Said Campbell, "They are still trying to mess me around."

Staff writer Tom Reisenweber contributed to this report.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.