passopenrecords.org

Picking up where we left off yesterday, here is Teri Henning’s comparison of the three open-records bills currently pending in the Pennsylvania legislature on some specific issues:
(1) Presumption of Access; (2) Agencies covered by bill; (3) Definition of an open record; and (4) exemptions.

Senate Bill 1 Prime Sponsor: Sen. Dominic Pileggi (R-Delaware)
Senate Bill 765 Prime Sponsor: Sen. Jim Ferlo (D-Allegheny)
House Bill 443 Prime Sponsor: Rep. Tim Mahoney (D-Fayette)

• Presumption of access to public records?
SB1: No. Bill, as introduced, leaves presumption against access in place and burden on citizen/requester. (Note: Sen. Pileggi has announced his intention to revise the bill to create this presumption.)

SB 765: Yes. Bill starts with presumption that records in the possession of public agencies are public records. It includes 20 categories of exemptions.

HB 443: Yes. Bill starts with presumption that records in the possession of public agencies are public records, and the burden is on an agency denying access to prove that a record is not public.

• Who is covered?
SB 1: State agencies, independent agencies, local agencies, courts (financial records only), and legislature (financial records only). Specifically includes Pennsylvania Higher Education Assistance Agency (PHEAA), Pennsylvania Housing Finance Agency (PHFA), Pennsylvania Municipal Retirement Board, State System of Higher Education, state-related institutions, community colleges, and Pennsylvania Turnpike Commission.

SB 765: State agencies, independent agencies, local agencies, and legislature. Specifically includes state-aided, state-owned, and state-related colleges and universities, community colleges, entities performing governmental functions, and entities supported principally by public funds.

HB 443: State agencies, independent agencies, local agencies, courts, and legislature. Specifically includes state-aided, state-owned, and state-related colleges and universities, community colleges, entities performing governmental functions, and entities deriving 25% or more of funds from public money.

• What is a “public record?”
SB 1: Bill, as written, leaves 1957 definition in place. Only provides access to certain financial and decision-related records (with numerous exemptions).

SB 765: All documents or material (regardless of physical form) “made or received in connection with or relating to the work of an agency, except those documents exempt or prohibited from disclosure under Federal or State law.”

HB 443: All documents or material (regardless of physical form) “made or received in connection or relating to the work of an agency, except those documents exempt or prohibited from disclosure under Federal or State law. The term does not include those items that are clearly personal in nature and unrelated to the spending of public funds or the duties imposed upon the agency.”

• Exemptions
SB1: Bill leaves current exemptions in place. These include investigation-related records, records that would harm someone’s reputation or personal security, records that are confidential by court order or law, and records that would, if released, result in the loss of federal funds.

SB 765: The bill lists 20 categories of exemptions, including records protected by law or court order, medical records, employee disciplinary records (except for status and action taken), records that would threaten personal security or public safety, trade secret documents, certain donor-related documents of agencies, documents relating to ongoing investigations, records that reflect internal, and pre-decisional deliberations of agency members.

HB 443: The bill lists 24 categories of exemptions, including records protected by law or court order, medical records, employee disciplinary records (except for status and action taken), records that would threaten personal security or public safety, trade secret documents, certain donor-related documents of agencies, documents relating to ongoing investigations, records that reflect internal, pre-decisional deliberations of agency members, and e-mail (except where e-mail relates to the spending of public money or the duties and powers of the agency or its personnel). HB443 expressly states that exceptions shall be strictly construed, even where examination may cause inconvenience or embarrassment.