Charter Schools Must Comply with Pennsylvania’s Right to Know Law

The press, public school districts have shown considerable interest in wanting to review what may appear to be confidential charter school records concerning enrollment, performance, financial and other matters.  These   third parties have ample latitude to request such documents given the rights provided to document requesters in Pennsylvania’s Right to Know Law, 65 P.S.  67.101, et. seq., applicable to charter schools (“RTK Law”).  

The RTK Law requires, among other things, that a requestor denied by a public party (e.g. a charter school) the opportunity to review certain records has a right to appeal to the Office of Open Records (“Office”).  The Office reviews the records requested to be provided by the charter school and determines whether or not they are public records subject to disclosure within the ambit of the RTK Law.  The charter school has the right to provide timely its reasons for objecting to the records' request along with the specific reference to legal authority supporting its decision, and the Office has 30 days from receipt of the request for records to issue its decision, unless the requestor agrees to extend the date of the Office’s decision.

Records are deemed public records and required to be disclosed by the charter school so long as they directly relate to the school’s governmental function.  As governmental function has been interpreted, the scope of the RTK Law is very broad.  In addition, any decision to deny a requesting party the right to access certain records must be based on a preponderance of the evidence that the records are exempt from public access.  The broad scope of documents that fall within the ambit of the RTK Law coupled with the high burden on the Office to deny access to documents makes it not surprising that most records’ requests are upheld by the Office.  Even public records held in the custody of a private entity such as a party retained by a charter to provide management or education services on behalf of the school are subject to disclosure under the RTK Law.  See Chester Community Charter School v. Hardy, No. 1427 C.D. 2010, Commonwealth Court of Pennsylvania (filed February 29, 2012). 

Tips for Trustees and Administrators:  It is imperative that any charter school objection to the disclosure of information sought by a third party be provided promptly to the Office of Open Records and that the objection specifies the legal basis for withholding the records.  In addition, charter school trustees and administrators should presume that all or nearly all of the records requested will be subject to disclosure and, consequently, should have clear procedures in place for recordkeeping and records retention. 

This Charter School Alert was authored by Eric L. Silberstein, an attorney with Salvo Rogers & Elinski in Blue Bell, PA.  Mr. Silberstein, a member of Salvo Rogers & Elinski's Corporate and Real Estate Groups, has practiced law for 20 years and works closely with charter boards and administrators on governance, financing, special education, real estate, charter renewals and other charter matters.  Mr. Silberstein is admitted to practice law in Pennsylvania, New York and Connecticut.  He can be reached at (215) 653-0110 or esilberstein@salvorogers.com.  Salvo Rogers is a boutique law firm started in 1988 that is committed to providing high quality, personal service and cost effectiveness to clients pursuing business transactions, commercial real estate matters, and trusts and estates planning.

Please continue to follow other Pennsylvania charter school news of interest posted on my blog, "PA Charter School Law Forum:" pacharterlawforum.blogspot.com.  Your comments and suggestions are welcome.