Allegheny County Executive Rich Fitzgerald has been in office since 2012 and will be up for reelection next year. But unless he makes a public appearance or a tweet is sent out from @ACE_Fitzgerald, the citizens of Allegheny County know little else about how he’s spending his time in office.
Fitzgerald doesn’t release his daily calendar to the public and even directs a member of his staff to periodically delete his electronic calendar, an approach that appears to be among the least transparent among public officials in Pennsylvania. In fact, the most consistent record of how Fitzgerald spends his days seems to be his social media feeds.
According to the state Office of Open Records [OOR], there’s nothing wrong with Fitzgerald’s approach.
Though some area officials maintain meticulous schedules and readily release them to the public, one legal case helps to explain why Fitzgerald can withhold his calendar. A 2012 Commonwealth Court ruling said public officials can use the broad “working papers” exemption in the state’s Right-to-Know Law to shield their daily schedules from public view. The ruling, according to one media law expert, puts Pennsylvania in the minority as most states deem the calendars of elected officials a public record.
Not for general distribution
In May, PublicSource requested the most recent nine months of work calendars for Fitzgerald and his chief of staff. The county denied the request in July. Under the Right-to-Know Law, PublicSource appealed the denial to the OOR. The OOR recently ruled in the county’s favor.
Terry Mutchler, the former executive director of the state’s OOR and the attorney representing PublicSource, said Pennsylvania is unique when it comes to not releasing public officials’ calendars.
“Since the inception of laws that allow record access in the ’60s, calendars of public officials have been public around the country,” she said. “It's interesting that only in Pennsylvania has it really become an issue within the courts...What we see here is obviously the decision showing a clear interpretation of where the courts are on this.”
In its argument against PublicSource, the county submitted an affidavit signed by Sonya Dietz, the secretary and office manager for Fitzgerald. It’s her job to maintain both Fitzgerald’s calendar and that of his chief of staff, Jennifer Liptak, on Microsoft’s Outlook platform, she wrote.
According to that affidavit, Fitzgerald’s calendar “contains a mix of items detailing personal and public appointments, events and activities” and “was never created with the intent that it would available for general distribution.”
Dietz also shared in the affidavit that she regularly deletes Fitzgerald’s calendar, writing, “I only retain County Executive Fitzgerald’s daily calendar for a limited period of time after the date of the personal public appointments, events and activities has passed. Thereafter, at Mr. Fitzgerald’s direction, I electronically dispose of that part of his daily calendar…” Indeed, on Aug. 21, Assistant County Solicitor George Janocsko wrote in an email that Fitzgerald’s calendar currently only contains entries dating back to April.
Fitzgerald declined to be interviewed for this story.
In an email, county spokeswoman Amie Downs defended Fitzgerald’s decision to not release his daily calendar. She said his public events are regularly advertised and that his private meetings needed to stay private. Downs said Fitzgerald regularly meets with business leaders who, hypothetically, may not want to meet with him or do business in Allegheny County if they knew their meetings would be publicized.
“Businesses and organizations need to have assurance that discussions are private and that the detail of meetings are going to be kept confident[ial],” she wrote. “If such meetings were publicly announced, organizations would no longer want to meet with us to the detriment of county taxpayers.”
Happy Labor Day! Always a privilege to march with so many of our unions. pic.twitter.com/EYyHE0J5Ns
— Allegheny Co. Exec. (@ACE_Fitzgerald) September 3, 2018
But even Fitzgerald’s public events are somewhat difficult to track down. While Downs said the county advertises its own events and press conferences, it doesn’t do so for events hosted by other organizations that Fitzgerald attends. “The majority of events that he attends, however, are not ones sponsored by the county or him and so that organization or agency announces it and participants,” she wrote. While his social media feeds contain details of recent events he’s attended, the county hasn’t advertised an event for Fitzgerald in more than a month.
Yet Fitzgerald’s administration does regularly send updates on what he is doing on the policy front, including issuing executive orders and submitting legislation to County Council. Those updates come via emails sent by Downs.
What about other public officials?
Pittsburgh Mayor Bill Peduto posts his daily schedule online each day. The schedule includes a variety of private meetings, public events and media interviews. When PublicSource recently requested his daily work calendar, the city’s Right-to-Know officer pointed to the online postings. Those listings, however, only include some of Peduto’s meetings and events and not necessarily everything he does throughout the day. And occasionally, Peduto’s public schedule lists no events on it, but that doesn’t mean the mayor has the day off. The mayor’s office didn’t respond to questions about how his calendar is kept.
Across the state, Philadelphia Mayor Jim Kenney similarly posts his public schedule online a day in advance. Like Peduto, Kenney only includes some of the events he attends and doesn’t list anything on his schedule some days.
Gov. Tom Wolf posts his schedule, one week at a time, online. His calendar, similarly to the calendars of the two mayors, some days contains more meetings and events than others. It has some redactions, which often appear to be personal information following a person’s name.
When it comes to daily calendars, Pittsburgh Public Schools (PPS) may be the most transparent. In May, PublicSource requested the daily calendars of all nine school board members as well as Superintendent Anthony Hamlet and Chief Operating Officer Ron Joseph. District Right-to-Know officer Nicole Williams provided all 12 calendars without redactions.
As PublicSource previously reported, Hamlet’s calendar included entries about meetings he had with the city’s Amazon HQ2 team. Hamlet signed a non-disclosure agreement with Amazon and declined to speak about those meetings. Hamlet’s calendar also showed him attending community events, meeting with local officials and doing media interviews.
Ira Weiss, the school district’s solicitor, said PPS releases calendars because he believes the Right-to-Know Law doesn’t make them exempt from being released to citizens.
What the law says
The reason public officials across Pennsylvania treat their daily schedules and calendars so disparately is because the state’s Right-to-Know Law doesn’t clearly say whether the documents have to be made public or not.
“It’s perfectly valid for a public official to not release their calendar,” said Erik Arneson, the executive director of the state’s OOR, which is in charge of enforcing the open records law. That doesn’t mean, however, that officials’ calendars should be withheld from the public, Arneson added. “My general view is that public agencies, public officials, people doing the public’s business, should be as transparent as possible.”
The precedent, however, is clear.
For the past six years, one case has served as the main interpretation of how to deal with calendars of public officials in Pennsylvania: The City of Philadelphia vs. The Philadelphia Inquirer, decided by the Commonwealth Court in 2012. In that case, a reporter for The Philadelphia Inquirer requested the daily calendars of Philadelphia Mayor Michael Nutter and all 17 members of the City Council. The city denied his request and the reporter appealed to the OOR, which decided the calendars should be released. A years-long legal battle ensued, resulting in the Commonwealth Court ruling that Philadelphia could withhold the calendar under the Right-to-Know Law’s “working papers” exemption.
The working papers exemption — one of 30 categories of exceptions to the open records law — says that the government or a public official can withhold documents that are “used solely for that official’s or employee’s own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose.”
The court ruled that because the calendars in Philadelphia were only used by the officials themselves and a small number of city employees, including members of the mayor’s security detail, the documents could stay private.
That’s a position Melissa Melewsky, the media law counsel for the Pennsylvania NewsMedia Association, takes issue with. She said she views calendars as “presumptively public” though certain items and information can be redacted from the document.
“What a public official does and who they meet with, with regard to public business, should be public record, absent one of the exemptions applying, so I think the public has a right to know that information,” she said.
Even at the time of the Philadelphia Inquirer ruling, the current interpretation was not universally shared on the court. In a dissenting opinion, Judge Robert Simpson wrote that he interpreted the Right-to-Know Law literally, meaning that because the calendars were used by more than one person, the working papers exemption didn’t apply.
Even though the court’s interpretation makes it legal for a public official like Fitzgerald to keep his calendar private, Melewsky said that doesn’t mean he should. She also took issue with the fact that the county executive regularly instructs his staff to delete calendar entries, making it impossible to ever know how he’s spent his time.
“When agencies just kind of destroy records, it doesn't make them look very transparent or concerned about accountability, and that's obviously not the goal,” she said. “Deleting records wholesale just because of the type of record does not accomplish that.”
J. Dale Shoemaker is PublicSource's government and data reporter. You can reach him at 412-515-0060 or by email at firstname.lastname@example.org. You can follow him on Twitter at @JDale_Shoemaker. He can be reached securely via PGP: bit.ly/2ig07qL
This story was fact-checked by Mary Niederberger.