Governmental Accounting Standards Update - RKL LLP · Governmental Accounting Standards Update Jill...

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Governmental Accounting Standards Update

Jill Gilbert, CPA, CGMAMark Zettlemoyer, CPA, CFE

Partners, RKL Audit Services Group

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GASB 72Fair Value Measurement and

Application(Issued February 2015)

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G72 – Intro/Background

Background:1. GASB 68 issued in 2012, effective FYB > 6/15/142. Stakeholder concern raised over the availability

of information for certain cost-sharing multi-employer plans that are not gov’t plans (Non-Gov’t Plans)

3. Added to technical calendar in June 2015, on expedited timeline to match the initial implementation year (12/2015) for most reporters

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G72 - Objectives

Pronouncement Objectives:• Clarify definition of FAIR VALUE (FV)• Establish general principles for measuring FV• Provide FV application guidance• Enhance disclosures about FV measurements

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G72 – Requirements Overview

• Scope: State and local governments with investments and certain other assets/liabilities

• Fair value definition and criteria developed on next slide• Requirements/Provisions:

• Define FV for accounting recognition purposes• Requires investments to be measured at FV• Additional FN disclosures

• FV measurements• Level of hierarchy• Valuation techniques• NAV per share

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G72 – Fair Value

Fair Value, defined• Price that would be received to sell an asset (or

paid to transfer a liability) in an orderly transactionbetween market participants at the measurement date

• Orderly transaction – exposure time in market to allow usual/customary activities to take place ahead of a transaction (i.e. not forced/liquidation/distress)

• Market participants – buyers/sellers in the market, independent, knowledgeable, able, willing (not forced)

• Measurement date – date as of which FV is determined

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G72 – Fair Value (continued)

Fair Value Characteristics:• EXIT PRICE from the perspective of the seller• Market-based measurement – not entity-specific• Current conditions as of measurement date• May have observable market transactions, might

not

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G72 – FV General Principles

General Fair Value Principles:1. The Asset/Liability2. Unit of Account3. Markets and Participants4. Price and Transaction Costs5. Valuation Techniques/Approaches6. Other Factors

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G72 – FV General Principles (cont.)

• The Asset/Liability:• FV takes into account the characteristics of the

asset/liability that a market participant would consider when pricing

• Condition• Location/transportation• Restrictions on sale/use

• FV does NOT account for seller/owner-specific issues

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G72 – FV General Principles (cont.)

• Unit of Account:• Level at which asset/liability is aggregated or

disaggregated for measurement purposes

• May either be:• Single asset/liability (e.g. financial instrument)

• Share of common stock owned

• Group of related assets/liabilities• Commercial shopping complex held for investment

purposes

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G72 – FV General Principles (cont.)

• Markets:• FV assumes transaction happens in either

• PRINCIPAL MARKET, or • Where transactions normally happen

• MOST ADVANTAGEOUS (in the absence of a principal market)

• If principal market information is available it must be used even if most advantageous alterative provides a “better” price

• Government should have access to principal (most-advantageous) market as of measurement date.

• Theoretical/assumed transaction at the measurement date –governmentt DOES NOT need to be able to sell as of that date

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G72 – FV General Principles (cont.)

• Market Participants:• Assume other market participants act in their

economic best interest (independent, not coerced/forced)

• Do not need to identify actual market participants

Asset/Liability à Principal (most-adv) Market à Market Participants

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G72 – FV General Principles (cont.)

• Price and Transaction Costs:• FV not adjusted for transaction costs, even if

separable• Characteristic of ownership, not asset/liability

• Transaction costs DO NOT include TRANSPORTATION COSTS

• If location is a factor, FV could be adjusted for cost to transport asset to principal market

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G72 – Valuation Techniques

Valuation Techniques: • Vehicle for determining FV

• Maximize use of OBSERVABLE INPUTS, minimize the use of UNOBSERVABLE INPUTS

• Three broadly accepted approaches• MARKET, COST, INCOME• May be appropriate to use one or multiple

• Single – Quoted active market for common share• Multiple – PV technique (income) and Market Multiples (market) à

range of values, consider the most likely/representative

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G72 – Valuation Techniques (cont.)

Valuation Techniques:• Generally try to apply consistently unless

circumstances have changed• New markets develop• New information is available• Information previously used no longer available• Valuation techniques improve• Market conditions change

• Change in valuation technique is a change in accounting estimate

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G72 – Valuation Approaches

Market Approach: • FV derived from market transactions involving

identical or similar asset/liabilities• Quoted market price

• Generally the preferred, also most common method• Market multiples

• Price-to-earnings; market-to-book-value ratios derived from identical/similar asset/liabilities (comparables)

• Matrix pricing• Indexing the target security to other benchmark quoted

securities• Generally for fixed-income/debt securities

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G72 – Valuation Techniques (cont.)

Cost Approach:• FV derived from the amount that would be required

currently to replace the present service capacity of an asset

• Cost to market buyer to acquire/construct a substitute asset of comparable utility, adjusted for obsolescence*

* physical, functional/technological, economic/external

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G72 – Valuation Techniques (cont.)

Income Approach:• FV derived from future expected amounts

converted to a single current amount (cash flows, operating income, etc.)

• Discounted present value techniques• Options pricing models (Black-Scholes)• Multi-period excess earnings technique

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G72 – Fair Value Hierarchy

Three levels of classification based on inputs to the valuation technique

• Level 1 – Quoted prices in active markets for identical asset/liability

• Level 2 – Direct or indirect observable inputs, other than Level 1

• Level 3 – Unobservable inputs

Level follow the inputs, not the technique

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G72 – Hierarchy LEVEL 1

• LEVEL 1 – QUOTED price for identical asset/liability in ACTIVE market

• Should be used without adjustment whenever possible

• Examples – exchange market, dealer market, brokered market, principal-to-principal markets

• If multiple markets exist for the same asset/liability• ID principal (most-adv) market• Whether the government can enter into a transaction at the

price, in that market, at the measurement date

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G72 – Hierarchy LEVEL 1

• LEVEL 1 ADJUSTMENTS– do not adjust except for the following:• Large number of similar asset/liabilities

• Time and cost prohibitive to obtain individual pricing, can use matrix/alt pricing models

• Quoted price not representative of FV• Major event occurs after the close of the market but before the

measurement date

• FV of asset not representative of FV of liability• Aligning FV of liability to inverse FV of related asset• See paragraph 60

• DO NOT CONSIDER effect of trading volume/blockage

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G72 – Hierarchy LEVEL 2

• LEVEL 2 – Other observable inputs• Quoted prices for SIMILAR asset/liab in ACTIVE

markets• Quoted prices for identical/similar asset/liab in

INACTIVE markets• Other observable inputs

• Interest rate yield curves• Credit spreads

• Market-corroborated inputs• Adjustments possible for – condition/location,

comparability of inputs, volume of activity

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G72 – Hierarchy LEVEL 3

• LEVEL 3 – Unobservable inputs• Use best available information

• Take into account all information about market assumptions that is readily available

• If valuation/input risk (uncertainty) is expected to be a factor considered in market participant pricing, it should be considered during FV development

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G72 – FV Other Factors

• Other factors could warrant Fair Value adjustment• Volume/activity significantly decreased ¶45

• Few recent transactions; prices not developed using current information; indices no longer correlated; wide or increased bid-ask spread

• Needs further analysis

• Transactions not orderly ¶49• Period of exposure not long enough to allow for customary

marketing activities; asset/liab marketed to a single participant; seller in/near bankruptcy; urgency to meet regulatory/legal requirements; price outlier

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G72 – FV Other Factors (cont.)

• Acquisition Value• Price that would be paid to acquire an asset with

equivalent service potential in an orderly market transaction at the acquisition date

• Donated capital assets (G34, P18) & works of art/historical treasures (G34, P27)

• Capital assets that a government receives in a service CSA (G60, P9)

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G72 – Investment FV

• Investments should be measured at FV• Investments defined as a security, or other asset that

a) A government holds PRIMARILY for the purpose of income or profit, and

b) Has present service capacity based SOLELY on its ability to generate cash (or be sold to generate cash)• Investments indirectly provide services as they can be

liquidated to buy goods and services of direct benefit

• Classification (A) depends on government intent at point of acquisition and shall NOT be reclassified if the usage of the asset changes

• e.g. capital asset now held for resale

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G72 – Investment Carve-outs• Money market investments* - amortized cost (G31, P9)

* Maturity of less than one year at time of purchase, also includes participating interest-earning investment contracts

• Investment in qualified** external investment pools – amortized cost (G79, P41)

** formerly 2a7-like, now criteria codified by GASB in G79

• Nonparticipating interest-earning investment contracts – cost-based measure (G31, P8)

• Unallocated insurance contracts – cost-based measure (G31, P8)• Synthetic GICs – contract value (G43, P67)• Life insurance contracts – cash surrender value• Equity interest in common stock (~20-50% ownership) –

use equity method of accounting unless they fit the exemptions listed at P77(a)

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G72 – Net Asset Value

If no readily determinable FV is available, Net Asset Value (NAV) per share is permitted

• Allocated value of ownership per share (member units, capital account)

• Generally must be determined as of the gov’t measurement date and in accordance w/ FASB investment company rules

• Generally would be calculated by the investee; gov’t needs to determine if timing/valuation principles are sound

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G72 - DisclosuresDisclosures for recurring & nonrecurring FV measurements

• FV measurement ($) at the reporting date

• Category of FV hierarchy (Level 1, 2, 3)• Apply to all other than NAV-measures

• Description of valuation technique

• Change of valuation techniques & reasons, if significant effect from change in valuation

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G72 – Disclosures (cont.)

• Level of disclosure, disclosures organized by typeand detail pursuant to the following:

• Nature and characteristics of the asset/liab• e.g. type, U.S. Treasury, U.S. Treasury STRIPS, Corporate Bonds, etc.

• Inherent Level of FV hierarchy (Level 3 needs more)• Asset/Liab defined by GASB Statement

• e.g. derivative instrument distinguished from hedging instrument (G53)• Objective/mission of government

• e.g. investment pool vs. general purpose government• Characteristic of the government• Relative significance of asset/liab (to total assets/liab)• Separate FS available – reduce disclosures• FS line items – FN requires more detailed

disclosure

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G72 – Other Topics

• Other concepts worth a look• Nonfinancial Assets FV principles – ¶55

• Liabilities FV principles - ¶59-62

• NAV disclosure requirements ¶82

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G72 - Effective Date & Transition

• Effective for FYB >6/15/2015• e.g. June 30, 2016 and December 31, 2016

• Transition guidance• Early adoption encouraged• Retrospective restatement of comparative periods, if

not practical, restate as of earliest possible period and state reason for limitation of restatement

• Restatement of assets that will no longer be measured at fair value is NOT required if not practical.

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G72 – Illustrative Disclosures & Handout

• G72, Appendix C, Illustration 5 –Disclosures

• Other illustrations in Appendix C include• #1 Unit of Account• #2 Level 2 Inputs• #3 Level 3 Inputs• #4 Definition of an Investment

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OPEB SUITEG74 & G75

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GASB 74Financial Reporting for

Postemployment Benefit Plans Other Than OPEB Plans

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G74 - Introduction

Scope / Entities Affected:1. Plan FS (stand-alone) for all public sector OPEBs

• Single and multi employer OPEB

2. Sponsor/Employer FS, if OPEB trust is held within the government itself and it is the sole financial report for the Plan

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G74 – Plan Types

Refresher on OPEB Plan Types:• Single Employer

• Multi-Employer• Agent Employer – Pooled assets but separate accounts

are maintained for each employer so its assets are legally available for their employees only.

• Cost-Sharing – No legal separation of assets or accounts, plan assets can be used to pay benefits of any participants.

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G74 – Plan Types (con’t)

• Defined Benefit- DB OPEBs • Trust OPEBs

• OPEBs “that are administered through trusts that meet the specified criteria”

• Contributions are irrevocable• Assets are dedicated to providing Plan benefits• Assets are legally protected from creditors

• Non-trust OPEBs

• Defined Contribution DC OPEBs

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G74 - Introduction

Main Provisions:• DB OPEBs

• Revised measurement criteria and terminology used to project plan benefits, assets and liabilities

• Defines FS composition (FS Schedules, footnotes, RSI)• Disclosure requirements apply to stand-alone DB plan FS

and sponsor/employer FS (if trust held within government)

• New & expanded footnotes/disclosures

• Significant changes to Required Supplementary Information

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G74 – Liability Measurement

New Terminology

• FIDUCIARY NET POSITION• Basically the accounting NP of the Plan (FV of Assets less

encumbrances)

• TOTAL OPEB LIABILITY• Equals the actuarial accrued liability (AAL) for the plan,

similar to existing calculation; however, using the ‘single equivalent discount rate’

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G74 – Liability Measurement

New Terminology (continued)

• NET OPEB LIABILITY (NOL)• Equals the Total OPEB Liability minus Fiduciary Net

Position

• Similar to the existing “UAAL” – Unfunded Actuarial Accrued Liability

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G74 – Liability Measurement

Valuation Date / Frequency:• Valuations required every two years

• Consistent with prevailing valuation techniques in most cases

• Valuation must be “rolled-forward” to the measurement date (the Plan’s reporting date)

• Impact of any material changes in the discount rates, contractual benefits, etc. occurring since the latest valuation date

• Discuss w/ actuaries the need for updated, “interim” reports as of measurement/reporting date

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G74 – Liability Measurement

Changes to Discount Rates:• G74 requires a change in the actuarial Discount Rate if

Plan assets are expected to “run out” before all benefits are paid

• Projections of Fiduciary Net Position (FV of assets) are compared to the projections of future benefit payments to determine the date/period when assets will be insufficient to cover benefit payments (if at all)

• “Depletion Date” – unofficial term

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G74 – Liability Measurement

• Summary:• Calculations affect disclosures and RSI only

• No changes to debits and credits in the FS

• Plans complying with prudent funding practices will likely see NOL closer to the old-UAAL

• NOL for significantly underfunded plans may be significantly higher than the old-UAAL

• Unfunded or “pay as you go”

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G74 – Disclosure Requirements

Numerous changes and additions to required footnote disclosures• Investment policy/policies• Money-weighted rate of return• Net OPEB Liability of the employer/employers• Demographic info on mortality tables and

experience studies• Expected LT Real Rate of Return by Asset Class• Discount Rate• Sensitivity analysis of the affect of discount rate changes on net OPEB

Liability

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G74 – RSI Requirements

EMPLOYER CONTRIBUTIONS• Actuarially determined contribution and actual

contribution for the current year and preceding 9 years **

• Also…• Covered-employee payroll ($)• Contributions as a percentage of covered-

payroll

** See Transition Guidance

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Example: RSI, Contributions

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G74 – RSI Requirements

INVESTMENT RETURNS• Money-weighted rate of return, net of

investment expense for the current year and preceding 9 years

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Example: RSI, Investment Returns

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G74 – RSI Requirements

Notes to RSI

• Changes in benefit terms

• Changes of assumptions

• Actuarial methods and assumptions

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G74 – Effective Date and Transition

• Effective for FY beginning after 6/15/2016• e.g. June 30, 2017 and December 31, 2017

• Transition guidance for RSI• 10-Year Schedules

• Limit to years where data is available and conforms to the measurement criteria established by G74

• Build to 10 years

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GASB 75Accounting and Financial

Reporting for Postemployment Benefits Other than Pensions

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G75 - Introduction

• Scope / Entities Affected• Employers participating in OPEB Plans

• Most changes are for DB plans• Some disclosure changes for DC

• This Pronouncement affects the employer’s financial statements and disclosures

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G75 - Introduction

Main Provisions:• Provides for accounting recognition of the full

Net OPEB Liability (NOL) in accrual-basis financial statements

• Partial recognition in governmental funds/modified-accrual financial statements

• Defines which components of the change in NOL qualify as current year OPEB expense and which components qualify as deferred inflows/outflows of resources

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G75 - Introduction

Main Provisions (continued):

• Disclosure/footnote updates• Most changes affect DB plans• Some changes for DC plans

• Required Supplementary Information (RSI)

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G75 – Employer Accounting

• Requires the NOL attributable to the employer to be reported as a liability in the financial statements

• Reminder: NOL is calculated as the Total OPEB Liability (TOL) minus Fiduciary Net Position

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G75 – Employer Accounting

• Accounting Recognition• Recognize full NOL for accrual basis FS

• Government Wide FS, Proprietary Fund, Stand-Alone BTA

• Recognize part of NOL for modified-accrual basis FS• Governmental Funds• Recognition limited to the amount expected to be liquidated

with expendable, available financial resources…

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G75 – Employer AccountingThe highlighted items are subject to certain amortization periods, of which the future periods would represent the DO/DI.

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G75 – Employer Accounting

Defined Contribution OPEBs

• Provides for employers to recognize a liability for any shortfalls in the amount funded to the Plan versus the contractual requirement for the service period.

• Disclosures enumerated within G75

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G75 – Disclosure RequirementsSources of changes in the NOL

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G75 Effective Date & Transition

• Effective for FY beginning after 6/15/2017• e.g. June 30, 2018 and December 31, 2018

• Transition guidance for RSI (10-year Schedules)

• Limit to years where data is available and conforms to the measurement criteria established by G75

• Build to 10 years

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GASB 77TAX ABATEMENT

DISCLOSURES

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G77 – Intro/BackgroundTax Abatement Theory

• Generally TAs are a component of ECONOMIC DEVELOPMENT

• Increasing property/other tax base• Addressing cost disadvantages• Revitalizing distressed local economies• Retaining/attracting jobs, companies, industries• Increasing employment

• TA also used in historical, environmental, brownfield, and housing initiatives

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G77 - Objective

• Pronouncement Objective: Provide essential information about the nature/magnitude of forgone tax revenues from TAs to better assess:

• Whether current-year revenues were sufficient to pay for current-year services;

• Compliance with finance-related legal/contractual requirements;

• Where government financial resources come from and how it uses them, and;

• Financial position and economic condition and how they change over time.

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G77 - Requirements Overview

• Scope: State and local government with forgone taxrevenues stemming from TAX ABATEMENTS

• TA definition next slide• TA from either government’s own TAs or those of other

government affecting this government

• Requirements/Provisions:• Additional FN disclosures for

• Name/description of TA and purpose• Type of taxes abated• Amount of foregone tax revenue for the current period ($)• Recipient obligations/commitments• Other

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G77 – Definitions

• TA, defined - a reduction in tax revenues that results from an AGREEMENT between one (or more) government and an individual or entity in which,

(a) one (or more) government promise to forego tax revenues to which they are otherwise entitled, and (b) the individual or entity promises to take a specific action AFTER the agreement has been entered into that contributes to economic development or otherwise benefits the government of the citizens of those governements

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G77 – TA Agreements

• G77 requirements encompass all TAs including:

• Agreements that are entered into by the REPORTING (THIS) GOVERNMENT

• Agreements that are entered into by OTHER GOVERNMENT that reduce the reporting government’s tax revenues

• Increasingly complex further “downstream” the government sits• State -> County/City -> Municipality -> SD/Authority

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G77 – Abated Revenues

• Applies to TAX REVENUES only• Excludes other arrangements which contractually

reduce government revenues• user/customer charges• fines, fees, costs, etc.

• GASB specifically considered TAX REVENUES to be indicative of a “nonexchange” transaction

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G77 Disclosure Principles

1. Disclosures begin in the period the TA is entered and continue until the TA agreement expires

2. Distinguish between TAs stemming from:• This government – should be organized by each

major TA program (by classification/purpose)• Other government – organized by the government

that entered into TA and the specific tax being abated

3. Can be TABULAR or NARRATIVE, or mixed

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G77 Disclosure Principles (cont.)

4. TA disclosure info may be shown• Individually (by agreement), or• Aggregated (by program/purpose)

• If INDIVIDUAL presentation method is used, only disclose those over a quantitative threshold

• No prescribed limit – judgment, GASB suggests a percentage of tax revenues or tax dollars

• Need to disclose the threshold

• Indiv/Agg selection may be different for THIS/OTHER GOVERNMENT information, and the threshold may be different

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G77 Disclosure Highlights• TAs from THIS GOVERNMENT

• General descriptive info• Name/purpose/program of TAs• Specific taxes being abated• Mechanism by which the taxes are abated

• How recipient’s taxes are reduced (e.g. reduced assessed value)• How TA amount is determined (e.g. specific dollar amount or percentage of

taxes owed)• Types of commitments made by recipients

• Gross dollar amount (accrual basis) by which government tax revenues were reduced by TAs

• Commitments made by government to recipient (if any)• If legal restriction preventing disclosure, indicate the

generalized TA info and source of legal prohibition

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G77 Disclosure Highlights

• TAs from OTHER GOVERNMENT• Very similar, abbreviated version of prior slide• General descriptive info

• Name of the Other Governments• Taxes being abated

• Gross dollar amount (accrual basis) by which government tax revenues were reduced by TAs

• Amounts (if any) received/receivable from Other Government related to TAs

• Name of government; authority under which amounts will be paid; dollar amounts received/receivable

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G77 Effective Date & Transition

• Effective for FY beginning after 12/15/2015• e.g. December 31, 2016 and June 30, 2017

• Transition guidance• Early adoption permitted• Applies to all financial periods presented** if application for periods prior to the initial implementation period is not practical, the reason for such should be disclosed

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RIGHT-TO-KNOWLAW:GOVERNMENTCONTRACTORSANDTHIRDPARTYRECORDS

Slides provided as a courtesy by:

Craig J. Staudenmaier, EsquireNauman, Smith, Shissler & Hall, LLP200 N. 3rd Street, 18th FloorHarrisburg, PA 17108(717) 236-3010E-mail: cjstaud@nssh.com

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Why Should Government Contractors Care About the RTKL?

• Their records are subject to public disclosure under the RTKL. The public may obtain:Ø information that they have submitted to the

government (e.g., responses to RFPs, certain insurance information, contracts…)

Ø records in the contractor’s possession (notsubmitted to the government) if the records directly relate to the work you perform for the government.

• Government contractors can use the RTKL to obtain information to help your business.

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Records in the Possession, Custody or Control of an Agency

Generally,anyinformationthatyougivetoanagency,orwhichanagencyhascontrolover,ispresumedtobeapublicrecord.

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Common Exemptions for Government Contractor Records

• Physical Security Exemption (65 P.S. § 708(b)(3))Ø Does disclosure endanger the safety or physical

security of a building, public utility, resource, infrastructure, facility or information storage system?

Ø E.g., building plans (revealing security systems, or other critical systems including public utilities)

• Computer Security Exemption ( 65 P.S. §67.708(b)(4))Ø Does disclosure endanger computer security?Ø E.g., information about computer hardware,

software and networks, including administrative and technical records

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Common Exemptions (continued)

• Trade Secret/Confidential Proprietary Information Exemption (65 P.S. § 67.708(b)(11))Ø Generally, information that gives you a

competitive advantage over your competitors, and which your industry generally keeps confidential, can be exempt from public disclosure.

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Common Exemptions (continued)

Trade Secrets under Uniform Trade Secret Act:Any formula, drawing, pattern, compilation, including customer list, program, device method, technique or process, that:

• has economic value;• is not generally known; and• that you take actual efforts to protect.

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Financial Records (65 P.S. § 67.102)

Records dealing with the receipt or disbursement of public money are generally public even if they contain exempt information.

Financial Records include:Any account, voucher or contract dealing with:

• the receipt or disbursement of funds by an agency; or

• an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property.

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Financial Records

The majority of exemptions under the RTKL do not apply to financial records.

For example, a government contractor’s trade secrets and/or confidential proprietary information is subject to disclosure if contained in financial records (e.g. certain pricing information).

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Agency Discretion to Release Non-Public Records

Agency can release records that are not public records, but agency must notify contractor before disclosing any non-public record submitted by contractor.

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Records in the Possession of a Government Contractor (Third Party Records)

• Under Section 506(d) of the RTKL, a record in the possession of a third party is deemed to be a public record and therefore accessible under the RTKL if:

1. The agency has contracted with the third party;

2. The third party performs a governmental function on behalf of the agency; and

3. The information sought directly relates to that function.

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Third Party Records

1. Contract with Third Party

Ø Unlike financial records, an agency cannot reach third-party records by constructive possession.

E.g., records reflecting disbursement of Medicaid funds by private subcontractor with no direct contract with Department of Health and Human Services are not public.

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Third Party Records

2. Governmental Function

Ø An activity or service is considered a governmental function if it pertains to a “non-ancillary” function – in other words, there must be a delegation of some substantial facet of the agency’s role and responsibilities.

Note: The governmental/proprietary function test used in some other areas of municipal law is not applicable.

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Third Party Records

Records Documenting Performance of Government Function• Certified payroll records of roofing contractor who

performed maintenance work on university building.• Bids accepted by private management firm for

concessionaire contract at municipal baseball stadium.• Records generated by foundation in fundraising and

managing endowment funds on behalf of state university.

• Records of management company that operated charter school.

• Training notes provided by government contractor to its employees to assist in calibration and testing of non-radar speed timing devices.

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Third Party Records

3. Direct Relationship

Ø The information that is the subject of the request must “directly relate” to the performance of the government function.

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How Can You Protect Information?

Government Contractor must notify agency if records provided to agency contain exempt information. 65 P.S. 67.707(a).

Be judicious, do not try to protect everything.

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Processing Request

• Response by Government Contractor (65 P.S. §67.707(b)).

Ø If the agency notifies the government contractor of a request for records that the government contractor asserts is exempt, the government contractor has 5 business daysto provide input to the agency on why the records should not be disclosed.

• Notice of Disclosure (65 P.S. § 67.707(b)).

Ø The agency will notify the government contractor if it is going to disclose the record.

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Legal Challenges

Office of Open Records (OOR): The OOR is a state agency that adjudicates disputes over access to public records.

Courts: Court hear appeals from OOR or appeals officers from certain types of agencies.

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Office of Open Records (OOR)

Notice to government contractor• The RTKL does not require agencies to

notify a government contractor of an appeal, but courts have held that agencies should notify government contractors of appeals involving records in which they have a direct interest.

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Office of Open Records (OOR) (cont.)

Right to Participate (65 P.S. § 67.1101):• Government contractors may file a written

request to participate in OOR.• The request to participate must be filed within 15

days of receipt of notice of the appeal.• The OOR cannot consider requests to participate

that are filed after the OOR appeals officer issues a final determination.

• A government contractor does not have to be represented by legal counsel in the OOR proceedings.

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Office of Open Records (OOR) (cont.)

Government Contractor Appeal:• If an agency grants access to the record, the government

contractor may file an appeal with the OOR to prevent the disclosure of the record.

• The filing of an appeal does not bar the agency from releasing the record, so the government contractor should request a written statement from the agency that it will not release the records prior to the issuance of the final determination.

• If the agency refuses to provide a written statement that the records will not be released, the government contractor should seek a stay from the OOR, or possibly, seek injunctive relief from a court with jurisdiction over the agency.

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Tips for Staying Current

• www.pafoic.org• www.openrecords.state.pa.us• AgencyOpenRecordsOfficerGuidebook

• NSSHRTKBlog:http://nssh.com/topic/right-to-know-law/