passopenrecords.org

Teri Henning, general counsel for the Pennsylvania Newspaper Association, also testified before the Speaker’s Commission on May 24th, and below are some highlights of what she said. At the end of her talk, Teri listed PNA’s six commandments – the minimum changes to the law required for real open-records reform. What do you think of the list? What’s missing? How would you change it? Let us know . . . and send us your stories of how the current public records environment has affected you.

Teri Henning:

Almost every state in the nation provides for significantly greater access to public records than Pennsylvania does. Most state laws, and the federal Freedom of Information Act, begin with the presumption that records in the possession of agencies that relate to public business are public records. They then list exemptions to disclosure, specifically identifying the records that should not be disclosed. These include records such as police investigative records, records that are protected by statute (such as medical records, income tax records, student records under the Family Educational Rights and Privacy Act), records that, if disclosed, would threaten someone’s personal security or domestic security, and others.

Pennsylvania’s law, as it currently stands, begins with the opposite presumption. Under Pennsylvania law, nothing is public unless the requester can prove that it fits into one of two narrow categories of what is a “public record.” On top of that, Pennsylvania has its own list of exemptions. So Pennsylvania law starts from a very narrow place, and then gets narrower. The burden is also on the requester to prove that a particular record meets the definition of “public record.” Under Pennsylvania law, the agency has all of the information (what documents it keeps, how it keeps them, what it calls them), and the requester has all of the burden. This adds up to very little public access in Pennsylvania.

The current definition of “public record” under our Right to Know Law is outdated, overly restrictive and confusing. The public continues to struggle for access even to documents that should clearly be seen as “public” under the law. It is this definition that the Pennsylvania Higher Education Assistance Agency relied upon in denying access to agency invoices that would detail the spending of over $800,000 dollars at board retreats. It is this definition that agencies such as the Westmoreland County Housing Authority, the New Castle Area School District, and many others, pointed to when denying access to settlement agreements, despite that fact that court after court has ordered the release of these documents. It is this definition that the Pennsylvania Department of Transportation relied upon in denying access to a list of hazardous intersections and locations on Pennsylvania’s roadways.

Pennsylvania lags behind other states on this issue. Almost every other state has adopted a broader definition of public record and provides greater access to its citizens. Pennsylvania’s law must be amended to create a new definition of public record that begins with the presumption of access and places the burden on an agency denying access. Most other states have operated within these principles for many years. In 2002, New Jersey overhauled its open records law – which was considered to be one of the most restrictive in the country – to create a presumption of access to government records. We must do the same.

Another necessary reform, which has worked well in a number of states, is the creation of an administrative “office of access” or open records “ombudsman.” These offices provide much-needed guidance to both agency members and members of the public on public records issues. They also provide consistency in interpretation – something that we struggle with here in Pennsylvania, as our 67 counties and our thousands of municipalities each reach their own conclusions about what their citizens should be entitled to under the open records law. Finally, these “ombudsmen” and offices are able to resolve many open records disputes without the need to resort to litigation. In this regard, they provide citizens with a quicker, cheaper, less intimidating way to challenge an agency’s denial of access.

Finally, over 40 states have laws providing for access to legislative records, either in their open records law or in a companion law. Pennsylvania’s Right to Know Law does not apply to the legislature.

Henning then set forth what PNA believes are six “minimum” requirements for meaningful open records reform:

1. An acknowledgment that records belong to the public. The open records law should make it clear that the public is entitled to know and be informed fully about the conduct and activities of government. Providing access to public records is an essential function of government agencies and an integral part of the fundamental duties of public officials and employees.

2. An improved definition of “public record” and a presumption of access. Records in the possession or control of a public agency must be presumed to be accessible to the public. The law should include specific exemptions for records that are not public.

3. Burden of proof on agency. The burden must be on the agency denying access to show that a record is exempt from access under the law.

4. Broader definition of “agency.” The definition of “agency” must include the General Assembly, state-related universities and any organization or entity that performs a public function and relies substantially on taxpayers’ money.

5. Administrative appeal/Office of Access. Pennsylvania must create an Office of Access to hear appeals and furnish guidelines, non-binding opinions and other appropriate information about the laws to both agencies and citizens.

6. Meaningful penalties. Penalties for open records law violations must be enforced and the fines increased to make them meaningful. Agency members who deny access improperly should also be required to participate in training provided by the Office of Access.

To that end, the Pennsylvania Newspaper Association drafted a model open records bill. incorporating these concepts,