Response to Additional Information Concerning Right-to-Know Request

on Behalf of the Carnegie Library of Pittsburgh

The Right-to-Know Act (the “Act”) provides the sole legal basis for compelling the public disclosure of documents of the Carnegie Library of Pittsburgh (the “Library”). The Library does not satisfy the clear statutory definition of an “agency” to which the Act applies, so there is no legal basis to compel disclosure of its documents.

I. Legal Discussion

The Pennsylvania Supreme Court has held repeatedly and “unequivocally [that] the General Assembly codified and clarified the common law right of access to public records when it enacted the Right to Know Act.” Uniontown Newspapers, Inc. v. Roberts, 839 A.2d 185 (Pa. 2003). The Act, therefore, provides the exclusive grounds to compel public disclosure of the Library’s documents.

The Act applies only to an organization that satisfies the Act’s statutory definition of “agency.” The relevant definitions under the Act are that of a “Commonwealth agency” and a “local agency.” A “Commonwealth agency” is “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. A “local agency” is: “(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 Pennsylvania Supreme Court applies a strict statutory construction to its interpretation of the term “agency” for purposes of the Act. See Community College of Philadelphia v. Brown, 674 A.2d 670 (Pa. 1996); Roy v. Pennsylvania State University, 568 A.2d 751 (Pa. 1990). In particular, the Court has repeatedly rejected the argument that “receipt of public support is clearly indicative of agency status.” Roy v. Pennsylvania State University at 754 (finding that the receipt of state funds by Penn State does not make the University a state “agency’ for purposes of the Act). See also Mooney v. Temple University Board of Trustees, 285 A.2d 909 (Pa. 1972)(rejecting a similar argument).

A. Commonwealth 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 (emphasis added). As previously stated, the Library was clearly established 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.” Accordingly, the Library was not established by the constitution, a statute, or an executive order.

In addition, the Pennsylvania Supreme Court has ruled that in order to “perform an essential government function” within the meaning of the Act, entities must be “statutorily identified as providing essential services, or they would have to provide a service that is constitutionally mandated, or they would have to provide a service indisputably necessary to the continued existence of the Commonwealth.” Community College of Philadelphia v. Brown at 671 (emphasis added). In applying this interpretation to determine whether a community college was an “agency” subject to the Act, the Court found that there was no statutory identification of community colleges as providers of essential services, no constitutional requirement that the legislature provide for post-secondary public education, and that “it is not clear that in the absence of services performed by community colleges, the survival of the Commonwealth would be in jeopardy.” Id.

There is no statutory or constitutional identification of libraries as providers of essential services within the Commonwealth, nor is it clear that the absence of libraries would jeopardize the very survival of the Commonwealth. The only current statutory references to the operation of libraries in the Commonwealth are found in 24 P.S. §§ 4101-4503 (known as the “Library Code”), which addresses the operation and state funding requirements for libraries within the Commonwealth. The Code makes no reference to libraries performing an essential government function. While the Library Code authorizes the promulgation of regulations concerning funding requirements (including those found at 22 Pa. Code § 141.21), those regulations are clearly irrelevant in determining whether the “agency” performs an essential government function because they are not statutes.

B. Local Agency

The Library is not a “political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school”, or a “local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.” 65 P.S. §67.102. The Library 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.

The requestor suggests that the Library is a “local agency” on the basis that it was created pursuant to statute, citing Act No. 118 of the General Assembly, enacted May 23, 1887. That Act provided in full:

That is shall be competent for any incorporated city within the Commonwealth and the same is hereby empowered to take and hold any grant or donation of money, books, manuscripts, or property, real or personal, for the purpose of establishing a free library within the limits of such corporation and to make provision, by annual appropriation for the maintenance of such free library.

This statute merely authorizes any city within the Commonwealth to accept and hold property for the purpose of establishing a free library and to contribute to such a library. The Library was not created pursuant to this statute. The Library was independently established by letters from Andrew Carnegie to officials of the City of Pittsburgh and ordinances passed by the Select and Common Councils of the City of Pittsburgh.

The requestor further suggests that a resolution passed by the Mayor and Council of the City of Pittsburgh in 1959, which provided for the extension of library services to all residents of Allegheny County, is evidence of the Library’s status as a “local agency” under the Act. As noted above, the presence of any regulation, ordinance, or resolution has no bearing on the Library’s status as an “agency” under the Act.

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 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. Similarly, the Library is not a “local agency” because it is not a “political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school,” or a “local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.” 65 P.S. §67.102. The Library was not established by or created pursuant to any statute or executive order. It was created as a trust by the letters of Andrew Carnegie and through ordinances passed by the Select and Common Councils of the City of Pittsburgh on February 24, 1890 and May 26, 1890. The Pennsylvania Supreme Court applies strict statutory construction in determining whether an entity is an “agency” under the Act. The Court has ruled repeatedly that reliance on government funding does not make an entity an “agency” if the entity does not otherwise satisfy the definition of “agency” within the clear meaning of the Act.