Changes to the law: what do you think?
May 7th, 2007 by JamieB
Let’s talk about some specific changes that would bring Pennsylvania’s open records law out (quite literally) the dark ages.
The Pennsylvania Newspaper Association has laid out six:
1. Records belong to the public
This is the bedrock on which everything else is built. And it just seems so obvious. Remember we are talking about “public records.” To whom else would they belong? How can this possibly be controversial? If the government belongs to the people – which is, after all, the definition of a democracy – how can the government’s records not belong to the people?
2. “Presumption of access”
In Pennsylvania, the person seeking access must prove a right to that access. In most other states, the burden is on the agency to show that specific information is not public under the law. That is all we are asking – that a public record be presumed to be open to the public unless the government agency can make a good case for keeping it private (and, by the way, there are good and legitimate reasons for keeping some records private). This change follows logically and inevitably from 1 (above), and it is what Deborah Musselman of the PNA has called the “holy grail” of the changes her organization is seeking. Yet, Senate Majority Leader Dominic Pileggi’s proposed bill would not “flip presumption” – Senate GOP attorney Steve MacNett said that Pileggi worries doing so would “set off an endless amount of additional litigation as people attempt to sort out what the flip of the presumption has caused.” I have no clue what that means, but I do know that the current system is an invitation to litigation – but only for those who can afford the time and the money go to court. In fact, suing the agency is often the only way you can get access to a public record in Pennsylvania.
3. Improved definition of “public record”
Right now, to qualify as a public record, a document must be either an “account, voucher or contract” or a “minute, order or decision.” That leaves an awful lot of stuff out and a good deal else open to “interpretation.”
4. Broader definition of “agency”
The definition of “agency” must include the General Assembly, state-related universities and any organization or entity that relies substantially on taxpayers’ money. The idea that, in a representative democracy, the people’s elected representatives should be exempt from the Right-to-Know law is absolutely ludicrous.
5. Office of Access
Pennsylvania must create an Office of Access to hear appeals and furnish advisory guidelines, opinions and other appropriate information about the laws to both agencies and citizens. As Forest Landon wrote recently, “Horror stories about government secrecy are almost as pervasive as government itself. So it will strike some people as unthinkable that somebody within government even could be trusted to curb excessive secrecy. Yet, increasingly, so-called ‘sunshine offices’ are being established to help enforce both state and federal Freedom of Information laws.” Others worry about creating one more layer of bureaucracy, but there are states with long histories of effective agency oversight. We’ll talk more about this, but if you are interested, check out this link.
6. Meaningful penalties
Penalties for open records law violations need to be enforced and the fines increased to make them meaningful. This seems pretty obvious, and under Sen. Pileggi’s bill, the penalties for failing to comply would increase from $300 to $1,000 for the first offense . . . oh, and let’s not forget whose money would be used to pay the fines.
What’s missing from this list? What is here that you think shouldn’t be? What do you think we need to bring Pennsylvania’s open records law into the modern world?
More comments from around the region:
• This one from New Jersey concerns the email issue we discussed last week: Voters have the right to know if they were fed the facts — or propaganda.
• And this one from a letter in the Harrisburg Patriot-News is about privacy, an issue we will discuss later this week: “Frequently, however, ‘privacy’ is used as a smokescreen to prevent us from finding out things that we are entitled to know.”