HARRISBURG — The powerful board that oversees how Pennsylvania counties and other local governments spend opioid settlement money operates outside one of the state’s key transparency laws.
The Right-to-Know Law grants access to legal bills, contracts, emails, and various other records available from Pennsylvania school boards, city councils, county governments, state agencies, and similar public entities. Records obtained through the law can “be used to hold public officials accountable for their actions,” the state’s Office of Open Records said in its latest annual report.
But the office ruled in 2023 that it doesn’t have jurisdiction over the Pennsylvania Opioid Misuse and Addiction Abatement Trust. And after a request from the Pennsylvania Office of Attorney General under Michelle Henry last year, a court order further shielded the trust from the law’s requirements, a Spotlight PA review of legal records found.
The trust can withhold and ultimately cut funding from counties and other local governments if it decides they spent the money inappropriately — a power that has led to multiple court cases. Its exclusion from the open records law makes public accountability more difficult, according to Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member.
“It’s unfortunate for Pennsylvanians who deserve transparency when it comes to the trust and a significant amount of public funds it’s going to administer,” she said.
“There are many unanswered questions about how the money is spent.”
Not essential
A 2022 Commonwealth Court order created the state’s opioid trust, tasking it with distributing and overseeing funds from settlements with drug companies. Josh Shapiro, now the state’s governor, was attorney general at the time and led the state’s negotiations. The state expects to receive about $2 billion from opioid-related settlements and litigation, according to recent estimates.
The order created certain transparency requirements for the trust and its members, including ones tied to the state’s public meetings law and the public officials ethics act. It did not mention the Right-to-Know Law — either to say the trust was covered by or excluded from it.
In 2023, following appeals from Spotlight PA, the Office of Open Records ruled the Right-to-Know Law did not give it the power to order the trust to release records.
“While there are significant policy concerns supporting the claim the Trust should be considered an agency subject to the RTKL, we are constrained to follow the definitions of agency under the RTKL that were established by the General Assembly,” Kyle Applegate, the office’s chief counsel, said in response to a petition for reconsideration.
Applegate found the trust wasn’t a state-affiliated entity, saying it wasn’t part of the executive branch and was not created by the Pennsylvania Constitution, a statute, or an executive order. He also said that the trust was not performing an “essential government function,” defined as something “indisputably necessary to the continued existence of the Commonwealth.”
Spotlight PA did not appeal the decision in court.
In filings, attorneys for the trust had argued that it “has new, unique and defined responsibilities not derived from or shared with any government agency,” and that it is financed exclusively by funds from private parties — the defendant drug companies. At a public meeting, a trust attorney called the Office of Open Records’ determination “an excellent result.”
Terry Mutchler, an attorney and former executive director of the office, disagreed. She called the office’s decision a “huge mistake” and argued “the trust is an independent agency performing an essential governmental function, thus yoking the opioid trust to transparency.”
Still, Applegate’s decision acknowledged a possible path for transparency through the state’s open records law: The trust could be considered a judicial agency, “due to its creation and supervision by the Court.” But he said the office didn’t have the jurisdiction to make that decision.
Under the open records law, the public has the right to access fewer records of a judicial agency than, say, a school board. But the law says judicial agency financial records are presumed to be publicly available, unless a specific exemption applies. The trust maintained it wasn’t a judicial agency either “because it is not a court and it is not an entity or office of the” unified judicial system, a trust official told Spotlight PA in February 2024.
Later, under Henry, the state successfully sought changes that further narrowed any chance for public access, a Spotlight PA review found. As part of a proposed amended order covering a second wave of settlements, the attorney general’s office also requested this addition: “For the avoidance of doubt, the Trust is not a Commonwealth Agency, a local agency, a judicial agency, or a legislative agency.”
Those are the four categories of agencies defined by the state’s open records law.
In October 2024, Commonwealth Court Judge Lori Dumas approved the amended order with that language.
Different views
Mutchler called the amended order “a significant and massive disappointment.” She highlighted the devastation that the opioid epidemic has had across the state and country and criticized the harm caused by “a blanket cloak of secrecy.”
“Now more than ever, transparency needs to be a key part of the healing,” she said.
Erik Arneson, another former executive director of the Pennsylvania Office of Open Records, previously told Spotlight PA the trust is “exactly the kind of entity that the Right-to-Know Law should cover.”
“The Trust is in charge of receiving, investing and distributing vast sums of money – and will be for the better part of two decades,” he added in an email in 2024, prior to the amended order. “If the Trust wasn’t doing this, a government agency certainly would be.”
The Office of Attorney General under Henry defended the changes in the new court order. Brett Hambright, a spokesperson for the office, told Spotlight PA in mid-January the updated “language was included to provide clarity that the Trust is not an agency.”
“This was done to reduce litigation costs the Trust incurred following the ambiguity of the initial Trust Order, and maximize the amount of funds available for opioid abatement,” Hambright said.
Hambright also said that the attorney general’s office clarified in the amended order that it is not able to create agencies through a settlement. “Only the Pennsylvania legislature can create a state agency by passing a law that is signed by the Governor,” he said.
Republican Dave Sunday has since replaced Henry as attorney general, and Hambright still works for the office.
Asked in July whether Sunday believes the trust should not be covered by the state’s open records law, Hambright reiterated the prior comments from the office, saying any “steps toward making the Trust a state agency would need to be taken by the legislature — not the Attorney General or this office.”
Brie Anderson, administrator for the trust, said in an email that the amended order “vindicated” the Office of Open Records’ earlier decision.
“The Trust continues to operate with transparency, including full compliance with the Sunshine Act and voluntary public disclosure of significant volumes of information,” Anderson said in an email.
Conflicts over transparency
While the trust has operated outside of the state’s open records law, members have also frequently met in secret to consider and create recommendations for whether local governments spent their money inappropriately. Trust officials have said they comply with the state’s Sunshine Act.
Attending board meetings isn’t as informative without the open records law, said Melewsky of the Pennsylvania NewsMedia Association.
“You can watch them discuss and make decisions at a public meeting, but if you want to actually look at the records they’re talking about,” there’s no statutory right to do that, Melewsky told Spotlight PA.
Secrecy has led to ongoing conflict. In one complaint, Northampton County said the “Trust’s lack of a transparent approval process is both illogical and unjust towards Counties.”
Northampton has appealed in Commonwealth Court a trust decision to reject some of its opioid settlement spending. So have Somerset County and Philadelphia.
People directly affected by the crisis have also raised concerns about secrecy in Pennsylvania. A group of families who had lost loved ones in substance-related deaths reached out to Shapiro’s administration earlier this year, criticizing spending decisions by counties and describing a lack of transparency from the trust.
As one example, they said, “multiple individuals who have inquired about a mailing address through the Trust’s website have been told that this information cannot be provided—an absurd and unacceptable barrier to basic communication.”
Susan Ousterman, an advocate in Bucks County who led the effort to send the letter, told Spotlight PA she thinks the opioid trust should be covered by the state’s open records law.
“This is money that was obtained under the deaths of our family members,” said Ousterman, whose son died from an overdose involving opioids in 2020. “We should have, absolutely, access to know exactly what they’re doing. And it just doesn’t seem like they want us to.”
Shapiro and his administration have highlighted his role as attorney general in reaching settlement deals with drug companies, and the court order governing the trust says the trust’s chair serves at the pleasure of the governor. Asked about the letter, Shapiro spokesperson Manuel Bonder told Spotlight PA the governor “has a long track record of fighting for families who have lost loved ones to the opioid crisis.”
The trust, in response to questions about the letter from families, provided a statement saying it “has deep sympathy for those who have lost loved ones to the devastating impacts of the opioid epidemic.”
Regarding the mailing address issue raised by families, the trust said it conducts business by email and that its “website also contains a significant volume of public information regarding the Trust’s activities, including Board minutes, all programs reviewed and the results of the review.”
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