Montco to Public: "We have to close the sale in order for you to find out what's in it."

Lower Providence resident and community blogger/paralegal Janice Kearney has had a Right to Know request (RTK) submitted to Montgomery County regarding Parkhouse since early September. Ms. Kearney's request of the County was simple: disclose the details of the winning bid for the sale of Parkhouse and the names of the other bidders. But it would appear that the County is more interested in playing games and muddying the water than being transparent. Consider the timeline below, and keep in mind, the Right To Know Law is the minimum an agency must do. There is nothing precluding them from providing more than what you ask for or faster than the Law states.

Also keep in mind that the County is pushing hard to close this sale by the end of this year. Are they trying to run out the clock?

Her notes follow:

September 6, 2013 – I filed original RTK with Montgomery County seeking information relative to RFP 13-27 (the Parkhouse request for proposals). 

September 13, 2013 - Montgomery County’s Assistant Solicitor, Sharon Glogowski (instead of the Open Records Officer) neither denied nor granted the request, but requested an additional 30 days to respond.

October 2, 2013 - Montgomery County’s Director of Purchasing, Joseph Coco (not the Open Records Officer)  wrote, in response to the 9/6/13 request, claiming that they could not produce the requested materials because the RFP had not yet ‘been finalized and cannot be produced at this time’. (I don’t know why they couldn’t have just told me that on September 13 instead of asking for more time).

I was advised to ‘wait a few weeks to a month, and check back to see when the contract becomes finalized or [I] could resubmit another RTK request in a few weeks’ or a months’ time”.

The way the Right to Know Law works is, if the agency does not formally grant or deny the request, or ask for an extension of time, within five business days, it’s ‘deemed denied’.  

October 8, 2013 I filed a second RTK with Montgomery County because I was aware that a decision had been made as to whom the bid would be awarded to, and that it was going to be announced at a meeting scheduled for 10 am October 8. The meeting was indeed held, the winning bidder announced and it was recommended to the County commissioners that they sell to this bidder, Mid-Atlantic Healthcare. No other bidders’ names or proposals were disclosed at the meeting and the winning bid package was not made available either at the meeting or subsequent to the meeting.  

Also on October 8, 2013 I received a response from Montgomery County’s Office of Open Records indicating that they were considering my two requests as one and that the ‘information requested will be sent to you as soon as the RFP is finalized’.

October 17, 2013 – the Montgomery County Board of Commissions voted unanimously in a public meeting to accept the proposal of the winning bidder (Mid-Atlantic Healthcare). They distribute an internal email documenting same, a press release, and the story is covered in the press.

October 17, 2013 – Joseph Coco, Director of Purchasing (not the Open Records Officer) writes and again claims the requested documents have not yet been finalized and cannot be produced, again advising that I wait “a few weeks to a month, and check back to see when the contract becomes finalized or I may instead submit another RTK request in a few weeks or a months’ time”.

I responded via email, asking him to please define what the County means by ‘finalized’ as the Right to Know Law does not make any such distinction as a prerequisite for disclosure. Proposals are to be disclosed when the bid is awarded. I am still awaiting a response to that question. Surely, it cannot mean when all agreements are executed at the closing of the sale at the end of the year. How is the public supposed to have meaningful dialogue and ask questions if we can’t even know what the winning bidder (or other bidders) proposed until after the sale closes? No one knows whether the winning bidder is proposing to continue operating the facility as is, what additional operations they might plan, or what is intended for the 200 acres of adjacent open space and the potential impact any development of same might have.

October 22, 2013 – considering this a ‘deemed denial’ situation, I filed an appeal of the deemed denial with the Pennsylvania Office of Open Records (PA OOR).  The appeal is accepted as being filed timely and the Commonwealth begins their review, which must be completed within thirty days.  As soon as I filed the appeal, the County turns over the list of names of the other 9 bidders whose proposals were rejected.

During the 7-day period in which additional material can be submitted to PA OOR  in support of a party’s position, the County supplements the record with an argument of how they do not need to disclose the contents of the proposal because the transaction is not “finalized”. I supplemented the record, making the case that the Law does not have any requirement for ‘finalization’ as a prerequisite for disclosure.

November 18, 2013 -  PA OOR issues a Final Determination granting my appeal. However, the Decision fails to recognize, erroneously, that I did request the proposal itself along with the list of bidders. Despite the fact that both the County and myself recognized that the proposal was the main subject of the appeal, and our supplemental arguments dealt with that document, PA OOR inexplicably exempts the proposal from their determination. It does direct that the County turn over the list of bidders (which they did upon my filing of the appeal) and any other records responsive to the request other than the proposal itself.

When I contacted PA OOR and showed them that yes, in two places I had requested the proposal, they reviewed the matter further. They admitted they were wrong and that I had requested the proposal, but that they will not revise their Determination because technically at the time I made the second RTK request the award had not yet been made. They consider the contract award date to be October 17, 2013 and direct me to file a third RTK with the County.

November 18, 2013 – I filed a third RTK with the County and ask them, in the interest of dealing in good faith, since they could have made this available anytime since October 17, to waive the 5-day period of time they are permitted to wait before granting or denying this request.

The five days goes by without response. Since it's 'deemed denied', I filed another appeal with the PA OOR on November 26.

In the meantime Upper Providence Township has filed their own Right to Know requests.

November 25, 2013 - I filed a Right to Know request for all emails pertaining to the Parkhouse sale between the commissioners themselves, the commissioners and the bidder, and  the commissioners and other county employees, as well as the nine rejected proposals.

November 29, 2013 - Montgomery County's response to the 11/25 Right to Know requests is to ask for a thirty-day extension of time to determine if they can release them. The PA OOR has already stated that the winning and rejected bids should be disclosed as of October 17, 2013. To date the County has made none of this available.