Emails and other communications between Pennsylvania lawmakers and the lobbyists who try to influence them will remain hidden from the public, an appellate court has ruled.

The decision last month by a panel of Commonwealth Court judges means the state legislature can continue to shield from public view written interactions they have with the lobbying industry, which spends tens of millions of dollars annually to shape public policy.

Spotlight PA, a statewide nonprofit newsroom that seeks to hold powerful people and institutions accountable, brought the lawsuit. It will not appeal the ruling to the state Supreme Court.

Good-government advocates called the ruling a missed opportunity to create more transparency around the inner workings of the state legislature, which has exempted itself from having to disclose many records — including emails — that the executive branch routinely makes public. “It’s a huge missed opportunity because to pull back the curtain on emails between lobbyists and lawmakers would be like pulling back the curtain in The Wizard of Oz,” said Michael Pollack, executive director of March on Harrisburg, which advocates for gift bans and other reforms to make government more accountable.

“The public would see how laws are truly made, and how the system is truly operated,” said Pollack, adding: “The cozy relationship between lobbyists and lawmakers is assumed by the public, but once you see the details of those relationships, it can be shocking.”

In Pennsylvania, lobbying is a multimillion-dollar business. Lobbyists spent $147.1 million on lobbying in 2023, according to the latest available annual report. That total includes money for gifts, hospitality, transportation, and lodging for state officials or employees, as well as members of their immediate families.

Health care policy topped the list of issues that lobbyists spent that money on, but millions of dollars were also targeted toward influencing energy, education, tax, and transportation policy.

Despite the scale of their spending, lobbyists in Pennsylvania are only required to disclose basic information about their work. They don’t, for instance, have to reveal which public officials they lobbied, or how much money they spent lobbying them. They also don’t have to reveal which issues they lobbied those public officials for.

The March court ruling caps a long-running public records dispute that began in July 2023, when Spotlight PA requested from the state Senate communications between senators or their staff and lobbyists for a small Pennsylvania municipality that was seeking state grants. The news organization requested the information as part of an investigation into political corruption allegations in the city of DuBois.

State Senate officials swiftly denied Spotlight PA’s request, asserting those emails and other communications do not fall under the definition of a legislative record under Pennsylvania’s Right-to-Know Law.

Spotlight PA ultimately appealed the denial to the state’s Commonwealth Court.

During oral arguments late last year before a panel of appellate judges, attorneys for the news organization argued that a clause in Pennsylvania’s public records law allows public access to communications between lawmakers and lobbyists.

Exemptions

That clause falls under a section of the law that lists records that are exempt from disclosure, including, “Correspondence between a person and a member of the General Assembly and records accompanying the correspondence which would identify a person that requests assistance or constituent services. This paragraph shall not apply to correspondence between a member of the General Assembly and a principal or lobbyist under 65 Pa.C.S. Ch. 13A (relating to lobbying disclosure).”

Spotlight PA argued that when writing that law, legislators wanted to shield communications between lawmakers and their constituents — but not communications between legislators and lobbyists.

Jim Davy, founder of All Rise Trial & Appellate and one of two lawyers who represented Spotlight PA, cited a floor speech then-state Sen. Jim Ferlo (D., Allegheny) made in 2008 when the legislature passed sweeping upgrades to Pennsylvania’s public records law.

At the time, Ferlo said the upgrades would “make correspondence between legislators and lobbyists public documents.” (Ferlo died in 2022).

“I think,” Ferlo told fellow senators during his floor speech, “this is certainly a cornerstone piece of legislation in regard to the … organizations that have professional paid lobbyists, the significant role they play in the drafting, formulation, and passage of pieces of legislation in lobbying both Houses of the Capitol.”

Karl S. Myers, a lawyer with Stevens & Lee hired by the state Senate, disagreed.

He argued that Pennsylvania’s public records law lists 19 specific categories that constitute a legislative record subject to disclosure. Those categories include financial records and legislative journals, among other documents.

If the legislature intended to include emails and other communications between lawmakers and lobbyists within the definition of a legislative record, it would have expressly done so.

Writing for the majority, Commonwealth Court Judge Stacy Wallace said “the Senate is required to provide access to ‘legislative records’ ... and ‘communications’ do not fall within the definition of ‘legislative records.’”

In a concurring opinion, Commonwealth Court Judge Patricia A. McCullough said she believed the state Senate should have directed Spotlight PA to seek those same records from other government agencies — in this case, the city of DuBois — which may have had access to some of those emails.

A setback

In a statement, Spotlight PA CEO and President Chris Baxter said the ruling “represents a significant setback for government transparency in Pennsylvania, allowing powerful special interests to continue operating in the shadows while spending millions to influence our laws.”

“At Spotlight PA, we’re fighting for all 13 million Pennsylvanians who pay for the legislature and who have a right to know who has the ear of their lawmakers, who’s actually writing the laws, and what campaign contributions really buy,” he said. “We’ll continue our investigative work to hold power accountable regardless of these barriers to transparency.”

Legislatures across the country have a mixed record when it comes to providing access to emails of its elected members, according to a 2016 analysis by The Associated Press.

Several, like Pennsylvania, do not require the legislature to release written communications — although some legislatures nevertheless made certain emails public, despite not being legally required to.

That same discretion exists under Pennsylvania’s Right-to-Know Law. It says an agency may “exercise its discretion to make any otherwise exempt record accessible for inspection” under certain circumstances, including when an “agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.”

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