Attorney Jeffrey McGuire of Cipriani & Werner’s Harrisburg office successfully argued on appeal that CPAs who serve as outside auditors to governmental entities are not subject to a Right-to-Know request. In a case of first impression in Pennsylvania, Judge Terrence R. Nealon decided the case of Brian T. Kelly & Associates v. Northeastern Educational Intermediate Unit, No. 2013-CV-4921 (Court of Common Pleas Lackawanna Co. February 12, 2014) with a very well-reasoned opinion. For a copy of the opinion, click here.
The Kelly firm prepared the audit for the Northeastern Intermediate Unit #19 (NEIU 19) and received a Right-to-Know request seeking “any records or documents” between it and the board members of NEIU 19.The Kelly firm responded in a timely manner to the request, refusing to provide any documents on the basis that it was not subject to the request. The requestor appealed to the Office of Open Records (Office) and, unfortunately, the Office held that the Kelly firm performed a “governmental function” and, therefore, must disclose all documents.
The Kelly firm appealed to the Court of Common Pleas of Lackawanna County for a decision in this matter. Acting on behalf of the Kelly firm, Attorney McGuire was hired after the appeal was filed in order to brief and argue the case. As a result, Judge Nealon overturned the Office of Open Records’ decision.
An issue not previously decided in Pennsylvania, Judge Nealon determined that an auditor is not performing a “governmental function” when an audit is performed. Even though an audit is required by statute, the auditor by law must maintain its independence and performs the audit at its own direction, without control by the governmental entity.
In addition to his position with Cipriani & Werner, Attorney Jeffery McGuire serves as legal counsel to the Pennsylvania Institute of Certified Public Accountants and represents accountants across Pennsylvania and in surrounding states. Cipriani & Werner thanks Brian Kelly & Associates for the confidence placed in Cipriani & Werner to handle the appeal of this Right-to-Know request.
The requestor had already received a response from the NEIU 19 but was also seeking the records directly from the auditor.