WHAT EVERY IN-HOUSE COUNSEL NEEDS TO KNOW About the Freedom of Information Laws and How Your Company s Private Information May Become Public Terry L. Mutchler Michael E. Baughman Dena Lefkowitz http://delvacca.acc.com
WHAT CORPORATE COUNSEL NEEDS TO KNOW ABOUT THE RIGHT TO KNOW! Terry L. Mutchler Of Counsel Pepper Hamilton LLP
Public Records Laws Sunshine laws Records laws Transparency laws
Pennsylvania Law Pennsylvania adopted a very aggressive law related to accessing public records Release of records is governed by the Right to Know Law. 65 P.S. 66.101 RTKL Written by Senator Dominic Pileggi, R-Delaware. Signed into law by Governor Ed Rendell in 2008 Effective January 1, 2009
Federal Law The Freedom of Information Act, 5 U.S.C. 552. FOIA first adopted in 1966 These laws are generally designed for citizen access to the records of their government All 50 states have records access laws, and transparency in government laws are considered the bedrock of democracy For corporations, Sunshine Laws can be two-edged sword Corporate records can be vulnerable under these laws. But these laws can also provide a treasure trove of information about competitors outside of discovery
Goals Primer on how these laws work Best practices approach on how to ensure your records are protected Judiciary on Pa Right to Know Law
PA Supreme Court The objective of the RTKL is to empower citizens by affording them access to information about their government. SWB Yankees LLC v. Wintermantel 45 A. 2d. 1029 (Pa. 2012).
Commonwealth Court RTKL is designed to promote access prohibit secrets make public officials accountable Bowling v. Office of Open Records 990 A. 2d, 813, 824 aff d 75 A. 3d 453 (Pa. 2013).
Types of Records Vulnerable to Public Release Patent Applications If you corporation files a patent application, some material is reachable to a public records request Discussions with Government If your company has discussions with the FDA about a drug s safety, the records of those meetings are reachable State Contracts/Vendors If you have a contract with the state of Pennsylvania to provide services, the contract and the documents surrounding it are reachable
Types of Records Vulnerable to Public Release Hospitals If you represent a hospital and they are licensed by the state, records of the hospital facility, your policies, procedures and costs, may be reachable Emails to State and Federal Agencies If you e-mail a government agency, that email is subject to release under the Right to Know Law because are public records Private University Foundations records within them are reachable
WHO IS SUBJECT? Commonwealth agencies Local agencies Judicial agencies Legislative agencies
Commonwealth Agency Any office, department, authority, board, multistate agency or commission of the executive branch; an independent agency; and a State-affiliated agency including the Governor s office, the Office of Attorney General, the Department of the Auditor General and the Treasury Department An organization established by the Constitution of Pennsylvania, a statue or an executive order which performs or is intended to perform an essential governmental function
Local Agency Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity
Records Definition of a Record Any information regardless of its physical form or characteristic that documents a transaction or activity of an agency AND is created, received, or retained pursuant to law OR in connection with a transaction, business or activity of an agency. 65 P.S. 67.102. Translation: books, emails, videos, databases, policies, notes.
Records As of Jan. 1, 2009, every record that a government agency has is presumed public not just records filed after that date This does not mean every record of an agency is public It means records are presumed public unless an exemption permits an agency to withhold it
Process Requests can submitted four ways (email, fax, letter, in person) Agency has five business days to respond Response must be in writing A one-time 30 day extension permissible. At 30-day Mark: Grant or Deny, or Grant in Part If deny in full or part: appeal to the Office of Open Records
Focus On Records Of Corporations If a corporation has filed records with a government agency special process applies In the Right to Know Law this is section 707b
Particular Corporate Records Under the RTKL, entities that file records with the government are known as third-parties (a) General rule: a government agency must give notice to thirdparties when a requestor seeks records involving the third-party, or the records involve trade secrets legislative record or financial record, the agency shall notify any third party that provided the record to the agency, the person that is the subject of the record and the requester. 65 P.S. 67.707(a)
Particular Corporate Records When Requests involve trade secrets/confidential proprietary material party provided the record and included a written statement signed by a representative of the third party that the record contains a trade secret or confidential proprietary information. 65 P.S. 67.707(b)
Notice Time Table Notification shall be provided within five business days of receipt of the request for the record The third party shall have five business days from receipt of notification from the agency to provide input on the release of the record The agency shall deny the request for the record or release the record within ten business days of the provision of notice to the third party and shall notify the third party of the decision Caution: government agencies often fail to provide this notice
Best Practices Review the state and federal Records Law Review the agency s guidelines that you are dealing with Review your client contract with the government agency Reflect the RTKL language regarding notice in the K Properly label and mark confidential and proprietary records Understand the procedures for the Office of Open Records and how to intervene if you are records are part of a request
ACCESS TO RECORDS IN LITIGATION Michael E. Baughman Partner Pepper Hamilton LLP
Access to Records in Litigation Information you provide in litigation may make its way into the public domain Court filings Discovery
Access to Records in Litigation Court proceedings and filings are generally open to the public What transpires in the court room is public property. Those who see and hear what transpired can report it with impunity. Craig v. Harney, 331 U.S. 367, 374 (1947). Common law and constitutional rights of access Documents vs. judicial proceedings Civil vs. criminal
Access to Records in Litigation Types of court documents open to inspection Dispositive motions Trial exhibits Settlement agreements filed with the court Types of court documents not subject to right of access Discovery motions
Access to Records in Litigation Motions to seal If a document or proceeding is subject to a right of access, it can only be closed or sealed in limited circumstances. Standard: Overriding Interest requiring sealing Findings that the sealing is narrowly tailored to protect that interest and there are no other alternatives to sealing Right and opportunity to be heard
Access to Records in Litigation Discovery No common law or constitutional right of access for public to obtain direct access to discovery. pretrial depositions and interrogatories are not public components of a civil trial. Seattle Times Company v. Rhinehart, 467 U.S. 20, 33 (1984). BUT, your opponent may be able to disclose information to the public that is turned over in discovery. Rule of Professional Conduct 3.6: Trial Publicity
Access to Records in Litigation Discovery Fed. R. Civ. P. 30(c): The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.... Absent a protective order, information revealed in discovery may be disseminated. Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) particularized showing that disclosure of each document would work a clearly defined and serious injury. Hearing required before entering protective order. Private Confidentiality Agreements vs. Court Approved Agreements
PA RTKL HOW TO PROTECT RECORDS OF PRIVATE COMPANIES Dena Lefkowitz Compliance and Ethics Officer, Workplace Investigator Nemours Foundation
Social Media Do you have a policy for employees related to their use of social media while they re at work? Does the policy include their use of the company name or logo on personal Facebook and Twitter accounts?
Court Records Court decisions and records are available online Records of proceedings before a court are not protected unless steps are taken to prevent their release Courts do not redact reproduced or certified records, and there can be information included that is protected by the RTKL Protect your clients by reviewing all submissions to court with an eye toward the ultimate end user the public
Requests for Proposals for Government Contracts Most information in an RFP is public record once the contract is awarded except financial information to demonstrate the bidder s or offeror s economic capability trade secrets, confidential and proprietary information
Contracting with Government Governmental functions used to be essential services, but now government is in the liquor, lottery and baseball business Caution is required in entering into a government contract to make sure that your records are either not reachable or that they are carefully maintained in the event that they are susceptible to a records request
Applications for Permits There can be confidential proprietary information included Label records State expectations should a request be received
Compliance with a Governmental Inquiry Understand the scope of the inquiry If sensitive records are produced, take steps to properly mark them Make arrangements, if possible, for the hard copies to be returned when they are no longer needed
Attorney Invoices Requesters commonly seek information on what government pays its lawyers If you have a government client, keep in mind that the description of services may be public record, or at least subject to review by an appeals officer or court
Emails and Correspondence to Government Any communication with a government entity about business may become a public record Courts consider the nature of the email over whether it was sent on a personal device or a work-issued one
Know your Privacy Laws Privacy laws that protect educational and medical information FERPA HIPPA
Have a Retention and Disposition Schedule One of the most overlooked tools for saving money on storage space and avoiding producing records that are a hundred years old Know your industry Standards Education, medicine, banking and other highly regulated areas have specific categories of records along with a schedule for their retention and disposal Know your business needs Poll your company to see if there is any benefit to keeping records beyond the time period required by law Know your records Designate a custodian of records who will be responsible for ensuring that records are categorized, properly saved and discarded