|October 15, 2013|
Previously published on October 11, 2013
The phrase “knowledge is power,” like most clichés, proves true more often than not - especially on construction projects where the status and amount of payments, terms of written agreements, and the content of project documents are key. On public construction projects in Pennsylvania, the Pennsylvania Right to Know Law (“RTKL”) provides an effective - and often overlooked - way of obtaining construction project documents. Significantly, any legal resident of the United States can request public records from a public body under the RTKL. This can be an extremely effective way for contractors to obtain payment, bidding, and construction documents - even where the parties’ contract restricts such discovery.
The power of the RTKL was reinforced in a recent decision involving an elementary school construction project: Mid Valley School District v. Warshawer. School districts, as public entities, are subject to the public disclosure mandates of the RTKL.
In Mid Valley School District, the attorney of a contractor made a RTKL request that included 26 categories of construction documents including requests for written construction agreements, project schedules, emails, certificate of substantial completion, and accounting records. In addition, the RTKL request sought the production of construction documents and payment records that the District contended were in the custody of the project architect, construction manager, and certain contractors.
The Court upheld the RTKL request and gave the District 30 days to turn over the materials, including those materials in the possession of the third party entities. In so holding, the Court reasoned that records about the construction of a public school were subject to the RTKL. In addition, when independent entities like architects or construction managers assist a public District in the performance of its governmental function of constructing and providing suitable school facilities - and the requested records directly relate to the performance of that governmental function - such documents are discoverable “public records” under Section 506(d)(1) of the RTKL.
For any entity involved in public construction projects in Pennsylvania, the RTKL can be a potent weapon for information gathering.