May 16 — 11:19 am, 2012

In Notebook v. District, court decides resolutions must be public

The Notebook has won a second straight favorable court ruling in a legal battle with the District over the public’s right to see resolutions that are under consideration by the School Reform Commission.

Pennsylvania Commonwealth Court Judge Renée Cohn Jubelirer on April 26 upheld an earlier Philadelphia judge’s decision in favor of the Notebook. Jubelirer’s ruling affirms that once the District introduces a resolution at a public meeting of the SRC, it becomes a public record and is accessible under the Right to Know Law.

"The decision is a good one for public access," said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association.

"Ideally public officials and other courts will adopt the reasoning set forth in this case and apply it so that the public can have access to board packets and fully understand and participate in public meetings," Melewsky added.

The Notebook was represented in both cases by attorney David Lapp of the Education Law Center. The center provided its services pro bono.

The District has not commented on the ruling but had previously agreed to comply with the lower court ruling, pending the appeal.

The legal dispute dates back to an SRC meeting on Sept. 23, 2009. The day’s agenda included a set of resolutions from the administration of then- Superintendent Arlene Ackerman proposing several new contracts. Commissioners raised some questions, and six of the resolutions were withdrawn. They were not brought to a vote as scheduled at the next SRC meeting.

The Notebook requested full texts of the withdrawn resolutions because the District’s practice is to distribute only brief summaries to the public at SRC meetings. However, the District declined to provide them. District staff told the Notebook that they were not legally required to divulge full texts of resolutions until after they had been voted on by the SRC.

The District’s stance prompted the Notebook to enlist the help of the Education Law Center. On the advice of Lapp, the Notebook submitted an appeal to the state’s Office of Open Records, challenging the District’s refusal to provide access to the resolutions.

The state ruled against the Notebook‘s request in January 2010, saying the case was moot because the Notebook had in the meantime received the full resolutions – but this had happened only after they were finally voted on.

On behalf of the Notebook, the law center then filed a brief in Philadelphia’s Common Pleas Court arguing for the right to see resolutions that have been introduced but not yet voted on. In March 2011, Judge Idee C. Fox delivered a favorable ruling.

But the District appealed in state court. This time they hired an outside attorney to handle the case – Paul J. Cianci of the Levin Law Group. Lapp and Cianci argued the case Feb. 14 before a Commonwealth Court panel.

In its challenge to the local court ruling, the District maintained that the resolutions were not subject to the Right to Know Law because they were still only drafts and also exempt because they reflected "internal, predecisional deliberations."

In her decision in favor of the Notebook, Judge Jubelirer rejected these arguments, ruling that resolutions presented before a public meeting of the SRC are, at that point, neither drafts nor internal documents.

Jubelirer’s decision means that the local court ruling still stands as a legal precedent for Philadelphia.

Commonwealth Court decides in each case whether or not to "report" their decision; only reported cases become precedent-setting. In this case, the court has so far not decided to do so. However, the Notebook can file a motion requesting that the court report this decision.

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