Position Paper on Behalf of the Carnegie Library of Pittsburgh

The Carnegie Library of Pittsburgh (the “Library”) is not required to comply with the record disclosure requirements of the Right-to-Know Act because it is not “an agency” for purposes of the Act.

I. Factual Background

The Library is a public trust formed under Pennsylvania law, created by letters dated February 6 and May 6, 1890 from Andrew Carnegie to officials of the City of Pittsburgh and ordinances passed by the Select and Common Councils of the City of Pittsburgh on February 24, 1890 and May 26, 1890, officially accepting Andrew Carnegie’s offer to build the libraries for Pittsburgh, and designating these libraries as the “Carnegie Free Libraries of the City of Pittsburgh.”

II. Legal Basis

The Right-to-Know Act, 65 P.S. §67.101 et seq. (the “Act”) requires an “agency” subject to the Act to provide public records to a requestor in accordance with the Act. Under the provisions of the Act, the Library does not qualify as an “agency” to which the Act applies.

To be considered an agency under the Act, the Library must be a “Commonwealth agency, a local agency, a judicial agency or a legislative agency.” A “judicial agency” is a court of the Commonwealth or any other entity or office of the unified judicial system. 65 P.S. §67.102. A “legislative agency” includes any of following: (1) the Senate, (2) the House of Representatives, (3) the Capitol Preservation Committee, (4) the Center for Rural Pennsylvania, (5) the Joint Legislative Air and Water Pollution Control and Conservation Committee, (6) the Joint State Government Commission, (7) the Legislative Budget and Finance Committee, (8) the Legislative Data Processing Committee, (9) the Independent Regulatory Review Commission, (10) the Legislative Reference Bureau, (11) the Local Government Commission, (12) the Pennsylvania Commission on Sentencing, (13) the Legislative Reapportionment Commission, (14) the Legislative Office for Research Liaison, and (15) the Legislative Audit Advisory Commission. The Library does not qualify as a judicial or legislative agency. 65 P.S. §67.102

For purposes of the Act, a “Commonwealth agency” is defined as “any office, department, authority, board, multistate agency or commission of the executive branch, an independent agency and a State-affiliated entity, including: (i) the Governor's Office, (ii) the Office of Attorney General, the Department of the Auditor General, and the Treasury Department, and (iii) an organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function. 65 P.S. §67.102.

The letters of Andrew Carnegie and ordinances of the City of Pittsburgh, by which the Library was established, are not “statutes or executive orders” for purposes of the definition of “agency” within the Act. The term “statute” refers only to “an act of the General Assembly, whether under the authority of the Commonwealth or the late Proprietaries of the Province of Pennsylvania.” 1 P.S. §1999. This definition of the term “statute” is controlling in any Pennsylvania law enacted on or after September 1, 1937, unless the context clearly provides otherwise. 1 P.S. § 1999. The Act does not define the term “statute” or suggest that any meaning other than the definition contained in 1 P.S. § 1999 should apply. Thus, the term “statute” in the Act’s definition of “agency” refers only to a law enacted by the state legislature of Pennsylvania. The Select and Common Councils of the City of Pittsburgh, not the General Assembly, enacted the ordinances that created the Library. Given that the ordinances were not statutes or executive orders, the Library is not a “Commonwealth agency” within the meaning of the Act.

The Library also fails the definition of “local agency.” The Act defines a local agency as: (1) any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school, and (2) any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity. 65 P.S. §67.102. The Library is no such entity. It is a public trust, governed by a board of directors that is comprised by a majority of non-governmental representatives. As such, its identity is separate and independent from any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.

Recent rulings concerning the definition of “Commonwealth agency” and “local agency” elsewhere in the Pennsylvania statutes also support these conclusions. For purposes of the Sovereign Immunity Act of Pennsylvania, sovereign immunity is available to a Commonwealth party, which is “a Commonwealth agency and any employee thereof.” 42 P.S. § 8501. The Pennsylvania Supreme Court recently had occasion to rule that the Society for the Prevention of Cruelty to Animals of Pennsylvania (the “S.P.C.A”), which has certain inherent government functions, including enforcement of Pennsylvania’s Dog Law, authority to arrest suspects, and traditional animal protection and control roles, and relies upon government funding among other sources, was not “a Commonwealth agency” entitled to sovereign immunity protection.

To determine if the General Assembly intended an entity to be a Commonwealth agency, we consult the plain language of legislation pertaining to the entity. See Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931, 934 (Pa.1990) (enabling legislation for Port Authority of Allegheny County specifies it is Commonwealth agency). The fact the General Assembly established the S.P.C.A. in 1868 is not conclusive, as most corporations were created by special legislation prior. See Snead, at 1178 n. 9 (special legislation commonly used to incorporate corporations prior to 1874). Indeed, the legislation creating the S.P.C.A. does not designate it as a Commonwealth agency…

Snead v. Society for the Prevention of Cruelty to Animals of Pennsylvania, 2009 WL 5125012 (Pa. 2009)

In the same case, the Pennsylvania Supreme Court had the opportunity to determine the definition of “local agency” for purposes of the Political Subdivision Tort Claims Act. The Political Subdivision Tort Claims Act provides, with certain exceptions, that no local agency shall be liable for damages on account of any injury to person or property. 42 P.S. § 8541. For these purposes, a local agency is defined as “[a] government unit other than the Commonwealth government.” 42 P.S. § 8501. A “government unit” is defined as “any government agency,” which includes “any political subdivision, municipal authority and other local authority, or any officer or agency of any such political subdivision or local authority.” 42 P.S. § 102. The Pennsylvania Supreme Court noted that “the Judicial Code does not define ‘local authority,’ but ... the Statutory Construction Act describes it as ‘a municipal authority or any other body corporate and politic created by one or more political subdivisions pursuant to statute.’” Sphere Drake Insurance Co. v. Philadelphia Gas Works, 782 A.2d 510, 513 (Pa. 2001) (citing 1 P.S. § 1991). On this basis, the Court ruled in Snead that the S.P.C.A. was not a “local agency” because it was not created by a political subdivision pursuant to statute.

The Library similarly fails to qualify as a “local agency”. At that time of the Library’s creation in 1890, there was no statute pursuant to which the Library could have been created. The only act of the General Assembly addressing the operation of libraries in the Commonwealth is 24 P.S. §§ 4101-4503 (known as the “Library Code”). The General Assembly enacted the Library Code in 1961 to govern the operation and maintenance of a State Library and public libraries in the Commonwealth, and provide for State and local cooperation in the establishment and maintenance of libraries. The Library was formed more than 70 years prior to the General Assembly’s enactment of the Library Code. The Library was also formed independent from and long before the other previously enacted statutes concerning libraries, which the Library Code specifically repealed. See 24 P.S. §4501 (repealing P.L. 294 (April 29, 1909), P.L. 1143 (July 20, 1917), P.L. 177 (April 9, 1929), P.L. 1203 (June 23, 1931), and 24 P.S. §§ 23-2301 to 23-2315 (March 10, 1949)).

III. Conclusion

The Act does not apply to the Library because it is not “an agency” within the meaning of the Act. The Library is neither a judicial nor a legislative agency. The Library is not a "Commonwealth agency" because it is not an organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function. 65 P.S. § 67.102. The Library was not established by executive order. For purposes of the Act, an entity is only “established by statute” if it is created by or pursuant to an act of the General Assembly. See 1 P.S. § 1999. The Library was created as a trust by the letters of Andrew Carnegie dated February 6 and May 6, 1890, which offered to build the libraries, and by the City’s acceptance of such offers through ordinances passed by the Select and Common Councils of the City of Pittsburgh on February 24, 1890 and May 26, 1890. The Library was, therefore, established prior to and independent from any “statute” within the meaning of the Act.

The Library is also not a “local agency” within the meaning of the Act. A local agency is defined, for purposes of the Act as: (1) any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school, and (2) any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity. The term “local agency” is defined elsewhere in the Pennsylvania Statutes as “[a] government unit other than the Commonwealth government.” 42 P.S. § 8501. A “government unit” is defined as “any government agency,” which includes “any political subdivision, municipal authority and other local authority, or any officer or agency of any such political subdivision” or “municipal authority or any other body corporate and politic created by one or more political subdivisions pursuant to statute.” Sphere Drake Insurance Co. v. Philadelphia Gas Works, 782 A.2d 510, 513 (Pa. 2001) (citing 1 Pa.C.S. § 1991). On this basis, the Pennsylvania Supreme Court has ruled that a nonprofit organization receiving government funding and performing integral government functions was not a local agency because it was not created by a political subdivision pursuant to statute. See Snead v. Society for the Prevention of Cruelty to Animals of Pennsylvania, 2009 WL 5125012 (Pa. 2009). The Library was established by ordinances of the City of Pittsburgh and not pursuant to any statute. The Library was established prior to any statute establishing libraries within the Commonwealth. Accordingly, the Library is not a “local agency” to which the Act applies.