http://box-fire.com/fifteenminutes/3208/pas-right-to-know-1

PA’s Right to Know

Tim Mahoney, a state representative in Pennsylvania, has drafted a top-to-bottom revision of the state’s so-called Freedom of Information Act.

I interviewed Tim when I was working in Uniontown a few years back. I was suprised to find out that he’s behind the new bill, which has attracted a lot of co-sponsors in Harrisburg. I didn’t get the sunshine and accountability vibe from him, but then, I never asked. Maybe things have changed since I left Fayette County.

The draft proposal is a breath of fresh-air. It expands the definition of public records and specifically and painstakingly details multiple categories — outlining exactly what should be available and what shouldn’t. That helps, because from my own experience and estimation, a lot of FOIA litigation occurs because the laws don’t clearly define what’s public. I caution them on being too specific, however. There should be a presumption of openess and if they’re not careful, the bill might tie the hands of the court in situations the legislature didn’t anticipate.

The new draft also irradicates the rediculous and unconstitutional citizenship requirement in Pennsylvania’s law (the Third Circuit struck down a similar provision in Deleware last year).

Clearly, this is like turning a halogen work lamp on in a dark room.

But, I have detected a few problems in this draft. It leads me to believe that it was written by attorneys with little to no experience in filing requests and using the law on a daily basis — the kind of expereince that, say, a reporter would have.

Oral, anonymous and electronic requests
There are some areas that the new draft doesn’t modify — the oral requests section being one. As the language stands right now, it allows an agency to accept anonymous or oral requests for documents — but doesn’t require the agency to do so.

(b) Requests. Agencies may fulfi ll verbal requests for access to records and anonymous requests for access to records. In the event that the requester wishes to pursue the relief and remedies provided for in this act, the requester must initiate such relief with a written request.

This has a potentially chilling effect on less-informed citizens. If they come into an agency asking for a public record, they should be given the same access as someone who writes a request. Some agencies deny oral requests as a matter of policy. Ahem, State Police. The required acceptance of elctronic requests sent by fax and e-mail needs to be more explicit as well. Again, see the state police for agencies denying requests that aren’t mail. Clearly, this section of the bill needs addressed.

The ombudsman
The creation of an administrative agency to handle FOIA appeals is necessary. I’m ecstatic to see its inclusion in this bill.

The Office of Access to Public Records is hereby established as an independent administrative agency. The Governor shall, subject to the advice and consent of the Senate, appoint an executive director of the office who shall hire such other staff as necessary to operate the office.

But, Mahoney needs to look at other states to see how this is working. The ombudsman needs to be given some teeth. This office seems to have no enforcement authority of its decisions. The relief this office provides by allowing citizens to try disputes out of court (namely, saving their pocket books) will be nullified if they have to drag the agency in to court anyway.

Also, the bill requires an administrative appeal before court action can be filed.

(1) A party aggrieved by the decision of the Office may, within 30 days after formally being served notice of the Office’s ruling, appeal to the court having jurisdiction.

That’s not acceptable. A citizen’s right to petition the government for a redress of wrongs shouldn’t be taken a way in this manner. Indiana, for example, only allows a plaintiff to seek attorney fees from an agency in court if they first sought an advisory opinion from the Public Access Counselor. You can still go to court any time you wish. Something similar should be employed here.

Also, I didn’t catch this on my first read-through, but this language also allows the agency to initiate court action if it doesn’t like the ombudsman’s decision. It makes sense, being that the ombudsman’s decision is binding. But, this will have a far-reaching, chilling effect. Who will seek an appeal at the administrative level if they might later be sued by the agency they were trying to get information from? Again, the bill provides a much-needed benefit to citizens by establishing this office, but then tears those benefits down by putting the public behind the eight-ball. This seems inconsistent with the stated public policy of the act.

The language needs to be changed to allow the public to file a binding appeal of an agency decision, or get a non-binding advisory opinion on an agency decision — of which the government can’t then sue for judicial review.

It doesn’t stop there, though, the bill then hits us with filing fees.

(c) Fees. — (1) The office may impose a reasonable filing fee for an appeal made under section 11, and any fees collected under this subsection shall be deposited in a restricted account in the General Fund which is hereby established for the office. The money from this account shall be appropriated as necessary for the operation of the office. (2) The agency may waive the filing fee if the person requesting access to the public record is unable to afford the fee based on guidelines established by the office.

I don’t like that, but I’m okay with this idea if 1) the fee is nominal (ie, much less than the filing fee for an action in civil court) 2) and the bill is modified to require, not simply allow, the ombudsman to waive the filling fee if it presents a financial hardship. The bill should also be modified to force the ombudsman to refund the filling fee if they fail to issue an advisory opinion or other required action within the 20 day time limit. That’s often the case with agencies like this — they become deluged with requests and have no incentive to comply with statutory timelines.

(d) Record on appeal. The record before a court shall consist of the request, the agency’s response, the record before the Offi ce of Access, including the hearing transcript, if any, and the Offi ce of Access decision. A court may take additional testimony and accept additional evidence as appropriate.

I’m conflicted about this, and unsure why it’s included in this bill. The standard of review in court should be de novo, not limited to the administrative record. The language here makes the issue fuzzy. If the bill is not seeking to limit the court’s review, then, the rules of evidence will apply and all those things will be allowed regardless of statutory requirements.

The federal FOIA limits court review to the administrative record, and it places an undue hardship on the public. To make a request, to negotiate access with the agency or file an appeal of an agency decision, the requester suddenly has to become a legal expert. Because if they miss raising some important legal issue in the appeal process, an attorney will be unable to raise it later in court.

Also, unless the administrative appeal is heard by the equivalent of an administrative law judge, well, I place little faith in their decisions. Ombudsman haven’t always ruled correctly in other states, and their opinions have been frequently overturned by courts because they interpreted the law incorrectly. This language might place undue emphasis on the ombudsman’s decision.

Fees
I understand the need to not state fees explicitly in a statute that might not be altered for years. Howver, fee waivers need to be addressed. They should be provided for those that can also get waivers from the ombudsman. The bill should allow for media waviers, as the federal FOIA does — and it should also prohibit charging duplication fees for the first 100 pages to anyone. After all, our taxes pay those costs anyway. Why should we be charged again?

Also, I think that if an agency fails to respond within the statutory time-limit, they should be prohibited from charging any fees at all. That will be some incentive for speeding things up and complying with the law’s provision.

On top of all that, we need to be explicit about what can be charged when the records are electronic. The Morgantown Parking Authority is trying to charge me $350 to export their ticket database. That’s outrageous. There’s clearly opportunity for agency abuse.

Overall though, if this bill is passed despite the problems I’ve mentioned above, everyone will be well served. But why go through the effort to fix the law, if you’re not going to do it right? I hope someone listens.