# East Stroudsburg University Foundation v. Office of Open Records

> Commonwealth Court of Pennsylvania · May 24, 2010 · 995 A.2d 496

URL: https://www.frixlaw.com/law-library/cases/9712083

## Case

- **Full name:** EAST STROUDSBURG UNIVERSITY FOUNDATION, Petitioner v. OFFICE OF OPEN RECORDS, Respondent; East Stroudsburg University of Pennsylvania, Petitioner v. Office of Open Records, Respondent; Dow Jones Local Media Group, Inc. and Dan Berrett, Petitioners v. Office of Open Records, Respondent
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 24, 2010
- **Citations:** 995 A.2d 496; 2010 Pa. Commw. LEXIS 255; 2010 WL 2025480
- **Precedential status:** Published
- **Opinion:** Concurrence by McCullough
- **Judges:** Leadbetter, McGinley, Pellegrini, Simpson, Leavitt, McCullough, Butler, Brobson
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9712083

## How later opinions describe it (automated extraction)

- stating “the language [in Section 506(d)(1)] is plain that all contracts that governmental entities enter into with private contractors necessarily carry out a ‘governmental function’ — because the government always acts as the government”
- holding that Office of Open Records lacks authority to participate in appeals of its decisions because as an adjudicatory body, “it is not aggrieved by the release of another’s agency records.”
- holding that the OOR is not a party to appeals of its decisions because it has no interest in the release of another agency’s records

## Opinion text

CONCURRING OPINION BY
Judge McCullough.
I concur in the result reached in part I (the Foundation carries out the governmental function of fundraising on the University’s behalf) and part II (the portion of *510 minutes relating to the management of those funds are public records) of the majority opinion. I also join in parts III and IV of the majority’s opinion (relating to attorney fees and costs and standing).
However, I strongly object to the majority’s interpretation of section 506(d)(1) of the Right to Know Law, which states that:
A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under this act, shall be considered a public record of the agency for purposes of this act.
65 P.S. § 67.506(d)(1). The majority concludes that “the language is plain” that all contracts entered into by a governmental entity carry out a governmental function. (Majority op. at 12-18.) Contrary to the majority’s conclusion, I believe that this broad interpretation in fact ignores the plain language of the statute and instead renders the words “to perform a governmental function” mere surplusage.
I write separately because I am unable to join the concurring opinion’s analysis of the alter-ego doctrine. The fact that this issue is not before us is, I believe, significant. In my view, the suggestion that we hold an entity to be “an instrumentality” under these circumstances is unnecessary. Instead, applying the statutory terms to the facts presented, I would hold that where, as here, a private entity has contracted to perform a service for a government agency, and such service is determined to be a governmental function of the agency, records related to such service are considered public records pursuant to section 506(d)(1) of the Right to Know Law.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9712083. Public record. Not legal advice.