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Victory in court: Notebook v. District

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

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

Last week, Pennsylvania Commonwealth Court Judge Renee Cohn Jubelirer upheld a Philadelphia judge’s ruling in favor of the Notebook. Jubelirer’s ruling affirmed that once the District introduces a resolution before 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.”

The District has not commented on the ruling.

The legal dispute goes back to a meeting on Sept. 23, 2009, when the SRC reviewed a set of resolutions from the administration of former Superintendent Arlene Ackerman proposing several new contracts. After discussion, six of the resolutions that day were withdrawn and not brought to a vote as scheduled at the next SRC meeting.

The Notebook requested full texts of the six withdrawn resolutions because only brief summaries were available to the public at the meeting. 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 ELC attorney David Lapp, the Notebook decided to challenge this denial of access to resolutions that have been presented but not yet voted on.

The first stop was the state’s Office of Open Records, but when the Notebook’s request there was dismissed, Lapp filed a brief in Common Pleas Court making the Notebook’s case and won a favorable ruling. The District announced its intention to cooperate with that ruling but also pursued an appeal in state court.

In that appeal of the local court ruling, the District maintained that the resolutions were not subject to the Right to Know Law because they were only drafts and also exempt because they reflect “internal, predecisional deliberations.”

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.

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

And even though the decision is not precedential, Melewsky said the court’s language “gives solid guidance” on how to interpret the Right to Know Law and Sunshine Act.

The case was argued Feb. 14 before a three-judge panel. The District hired an outside attorney to argue the case. The Notebook’s representation by the Education Law Center was pro bono.

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