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A fight over public records could threaten novel approach to broadband in rural Pennsylvania · Spotlight PA
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by Charlotte Keith of Spotlight PA | June 10, 2022
Broadband equipment installed on a tower in Bedford County, part of a new regional initiative in the Southern Alleghenies to improve internet access.
HOLLIDAYSBURG — Board meetings of the Southern Alleghenies Planning & Development Commission tended to be straightforward. No one had spoken during the public comment period in years.
But in January the calm was broken when Richard Latker, president of a local civic group, read out a lengthy statement that lambasted officials for a lack of transparency.
Latker said the regional commission was spending thousands of dollars to fight the release of basic information and accused officials of misleading state regulators.
His allegations took direct aim at one of the commission’s most prized initiatives: a nonprofit launched to spearhead broadband expansion across Bedford, Blair, Cambria, Fulton, Huntingdon, and Somerset Counties.
Officials in the Southern Alleghenies region created the organization in part to sidestep an obscure provision in state law that puts roadblocks in the way of local governments trying to build their own broadband networks.
But having developed a solution for one problem, those local officials now find themselves accused of creating another.
The regional commission and the nonprofit are fighting tooth and nail in court against a public records request filed by Latker’s group. It’s an unusually vehement response, given that the documents in question, bid proposals, are ones local governments routinely make public without a fight.
To Latker, the resistance signals that local officials are trying to hide something. His group, the Hollidaysburg Community Watchdog, is no stranger to legal fights with local governments. Drivers on one of the main roads into Hollidaysburg are greeted by a billboard with its logo and a call to action printed in bright yellow letters: “Don’t Tolerate Corruption. Report It.”
Officials at the regional commission insist they are not trying to thwart transparency. Their concern is not the records themselves, they say, but the underlying legal implications: their goal is to protect the nonprofit’s unique status, which grants it freedom from restrictions in state law on building a broadband network that would apply if it were a government entity.
“We would much rather invest available funds in deployment projects to better connect our communities rather than defending the identity and existence of [the nonprofit],” Brandon Carson, who until recently served as its executive director, said in an email.
Seven months after the Hollidaysburg Community Watchdog filed its Right-to-Know request, the legal dispute remains unresolved.
The nonprofit, Alleghenies Broadband, Inc. (ABI), was created in late 2020 at the recommendation of a national broadband consultant and a local task force.
Local officials saw many potential benefits. The new entity would allow the region’s six counties to coordinate their efforts. As a nonprofit, it could work to expand broadband access without the pressure to turn a profit that keeps many companies from investing in rural areas with few customers.
And, as an ostensibly private organization, it would not have to jump through the same hoops as a city or county in order to build a broadband network. The state Public Utility Commission signed off on this interpretation of the law last year, clearing a major obstacle for a plan to lay miles of fiber-optic cable, capable of delivering super-fast internet speeds, across the region.
Last summer, ABI put out a request for proposals for broadband projects.
A few months later, Latker’s group filed a Right-to-Know request for records about ABI from its parent organization, the regional commission.
The commission’s response to the request included much of what the group had asked for: invoices, tax documents, and an audit report.
But commission officials withheld another set of records — the bid proposals for broadband projects — on the grounds that they did not belong to them, but to ABI. As a private nonprofit, however, ABI is not subject to the state’s Right-to-Know law.
To Latker, this was troubling — especially with the prospect of millions of dollars in federal broadband funding flowing to the region. “Whatever [ABI] is, it should be a public entity that is subject to the transparency laws,” he told Spotlight PA.
Officials countered that on a practical level, there is no loss of transparency because ABI functions like any other private vendor working with the counties. ABI’s board makes recommendations to local leaders about which projects to fund, and county commissioners vote on the final decisions in public meetings.
“Nobody is really hiding anything that’s going on – we’re trying to promote it,” said Steven Howsare, the regional commission’s executive director.
Latker appealed the denial to the state Office of Open Records, which enforces Pennsylvania’s transparency laws and sided with him on part of the request in February.
On its face, though, the ruling wasn’t a significant loss for the regional commission. It required them to hand over just one document: the lone bid proposal that had resulted in a contract. The other 12 proposals were exempt because a final decision about whether to fund them hadn’t yet been made, the office concluded.
Below the surface, however, the decision appeared to reopen questions about the nonprofit’s identity, and suggested that it might be a part of local government after all.
The relationship between ABI and the regional commission had been a key point of contention throughout the appeals process for the Right-to-Know request.
Commission officials argued the organizations were separate and that ABI operated independently. But Latker countered that, on a practical level, the two were “thoroughly intertwined.” The commission and the nonprofit shared resources, staff, and, initially, office space. Carson, then ABI’s executive director, was also a full-time employee of the regional commission.
Citing those connections, the Office of Open Records concluded that ABI “constitutes an alter ego” of the commission.
Carson said the ruling threatened to undermine ABI’s carefully constructed identity and potentially its freedom from the state’s restrictions on publicly-owned broadband.
The office’s determination also appeared to clash with the earlier findings of the Public Utility Commission, which had cited ABI’s claims of independence from its parent organization as one factor in its ruling that the nonprofit was not a government entity under state law. (A PUC spokesperson told Spotlight PA it would not be appropriate to comment.)
The Open Records Office also shot down the commission’s argument that it wasn’t technically subject to the Right-to-Know law, either. The commission has a designated public records officer and accepts requests on its website, but said this was voluntary — not an acknowledgement that it was subject to the law.
To Latker, this argument seemed like another example of officials desperately trying to dodge transparency.
But it was also another attempt to defend ABI’s identity.
In order for the nonprofit to be free from the state restrictions, officials had to show that not only was it not a part of local government itself but that it hadn’t been created by a local government, either. From that perspective, the record office’s finding that the commission was a “local agency” for the purposes of the Right-to-Know law might be another challenge to ABI’s standing.
All three parties have appealed the office’s decision to the Blair County Court of Common Pleas, where the case is pending.
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