In a major victory for open records advocates and media organizations this week, Pennsylvania’s Office of Open Records ruled that Pittsburgh’s Amazon HQ2 proposal — one Pittsburgh and Allegheny County have sought to keep under wraps since last year — is a public record and “cannot be withheld” from public view.
The OOR’s decision came in response to an appeal filed by WTAE-TV in Pittsburgh. Last year, the station joined a handful of other local media outlets in filing Right-to-Know requests for access to Pittsburgh’s HQ2 bid and related emails, requests that were denied by the city and county. WTAE and others appealed, and WTAE announced this week that it had won its appeal.
So what now? While media groups and transparency advocates lauded the OOR’s decision, it may only represent the beginning of the push to compel the bid’s release.
Erik Arneson, executive director of the OOR, said via email today: “In light of the Office of Open Records decision, the city and county now have two options. First, they could release the records which the OOR held to be public. Second, they could appeal the OOR decision to the Court of Common Pleas in Allegheny County. In either case, they have a deadline of 30 days from [Wednesday].”
Read the OOR’s decision here:
He added, “The Office of Open Records has received a total of 12 appeals (including the two decided Wednesday) related to the Pittsburgh/Allegheny County Amazon proposal. Not all of them seek the actual proposal; some seek other related records.”
In a statement, the PGHQ2 office at the Pittsburgh Regional Alliance, the group behind the HQ2 bid, said Thursday, “While we respect the decision of the Office of Open Records, we believe it to be in the best interests of Pittsburgh to file a legal appeal of its decision. The City of Pittsburgh’s and Allegheny County’s legal teams are currently reviewing those options.”
It added, “We look forward to revealing all details of our proposal when it is appropriate to do so as part of Amazon’s selection process.”
The OOR had given the city and county 30 days to comply with its ruling or enter an appeal. If and when an appeal is entered, things become slightly more complicated.
An appeal of the OOR’s decision would be lodged not with the OOR but rather with Allegheny County courts, as Arneson explained above.
“… these appeals are not subject to the time limits imposed on the OOR, so it could take some time to reach resolution,” said Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association.
She added, “The parties can also appeal that decision to Commonwealth Court, so again, a final decision could take time.”
Additionally, the county courts are under no obligation to follow the OOR’s ruling, meaning they could reach an entirely different determination as to whether the HQ2 bid counts as a public document under the law.
“The problem occurs usually when it gets into the courts,” said Craig Staudenmaier, a Harrisburg-based newspaper attorney. “I think, too, that’s unfortunately because the law has changed so dramatically over the years. The courts have been sort of, in some respects, hamstrung because there’s not a lot of procedural guidance in the law for the courts and so they have to sort of make it up as they go.”
As for the OOR’s decision, it’s being praised as a rare win for open records advocates in a state where those can be hard to come by given the vagaries and wiggle room afforded to officials and official agencies under the law.
Many of those same advocates previously argued that Pittsburgh’s reasoning for refusing to release the HQ2 bid was flawed. The city and county cited the document’s inclusion of “trade secrets,” confidential proprietary information, real estate appraisals and bidding details they said are exempt from public disclosure. Right-to-Know experts said otherwise, arguing the city and county sought to avail themselves of privacy protections meant for privately owned companies engaged in bidding processes, not government entities in similar situations. It’s clear now that the OOR agrees.
“I can say that I think the Office of Open Records is making the right decision for the citizens of Pennsylvania,” Susan Schwartz, an advocate for open records and Pennsylvania chairwoman for the Society of Professional Journalists’ Project Sunshine, said on Thursday.
“I find it disturbing when a government agency mistakes itself for the private sector. That’s what Pittsburgh did in its initial denial: declared itself a private business with the same rights of privacy and trade secrets that private businesses enjoy.”
Schwartz continued: “Taxpayers are forced to give their money to the government; therefore, they have the right to know how that money will be spent, and a right to give their opinions before it’s too late to change a decision.”
If the city and county do decide to appeal the OOR’s decision, attorney Staudenmaier said they have a high burden to meet.
“I think trade secrets is definitely a losing argument. The confidential argument is very difficult for them to show. […] It’s hard for the city to demonstrate here how the release of this information will harm them [competitively or otherwise], unless the argument is that San Francisco or whoever will underbid or alter their bid if they see what Pittsburgh did. But I think that’s a heavy lift for them as well.”
There is only speculation as to what kind of enticements and incentives Pittsburgh’s HQ2 proposal contains. Enticements and incentives in other competing cities and states, some of which have made their bids available voluntarily and others which have done so in response to open records requests, have included tax breaks and elaborate promises related to transportation systems, real estate and more.
In the Pittsburgh Regional Alliance’s statement on the OOR decision, the group said, “This is not about special treatment for Amazon, but about participating in a confidential nationwide process that is extremely competitive. To be clear, no action will be taken on any proposed public investment in this opportunity without a full, open, public and transparent process. We are excited to be competing against other top cities in North America, and we intend to honor our commitments to private stakeholders regarding the confidentiality of our bidding materials.”
Just last week, Pittsburgh was named one of 20 finalists for the Amazon HQ2 project out of hundreds that competed continent-wide.
Amazon says its HQ2 project promises billions in investments and 50,000 jobs to the winner.
Critics, meanwhile, say it’s unclear if HQ2 is worth the price.
“When cities negotiate sweetheart deals for companies behind closed doors, they deny citizens — the people footing the bill — a chance to weigh in on whether the price is worth it,” Schwartz explained. “Well-meaning government officials, trying to bring needed jobs to their cities, fall into the trap of bidding each other up. The only way to apply some brakes is for these bids to take place in the open, so citizens can speak out when they think the offer is too much.”
She added, “That’s why we have the Right-to-Know Law.”