passopenrecords.org

With a vote promised on open records legislation soon (or so we have been led to believe), there is a lot of comment on the issue in newspapers and blogs across the state. In fact, because so many people view Pennsylvanians as still living in the open records Dark Ages, the recent push for change is getting noticed around the country. People are watching with a combination of hope and skepticism: hope because there aren’t many state legislatures whose leaders are saying on the record that open records reform is their top priority – or that the transparency that open records provide is the foundation of democratic government and the essential ingredient to true reform. That is what they are saying in Pennsylvania – which has up to now been better known as the “48th state” in terms of its public access to public records. Given that legacy, decades of skepticism die hard – and for all the talk in Harrisburg, we are all still waiting to see the results.

Here’s what others are saying:

• Prying the door open for records

By Robert D. Richards

Most people – government officials among them – would agree that open government is a good thing, at least in the abstract. After all, openness is part of the framework upon which this nation was founded.

The consensus often breaks down, however, when examining a set of particulars. Should a reporter be able to get a copy of a police investigation report? Can an ordinary citizen find out how much money the township supervisors are spending on business travel?

The open records law leaves a number of questions open – to interpretation, that is. And the devil clearly is in the details, not to mention the good offices of those whose job it is to release information.

If the officials charged with interpreting the act find it useful to stonewall a reporter or citizen seeking documents, they too often can seek comfort in the law’s substantive question marks, procedural gymnastics and enforcement difficulties.

With increasing and alarming frequency, people attempting to obtain documents or information from various branches of government are stymied in their efforts because some official prefers not to handle the request or hopes the requester will go away if enough hurdles are put in the way. Those people also might be thwarted by hefty redaction fees, copying costs or search delays.

In some cases, the open records statute is unclear. In other instances, subsequent case law may have rendered a provision invalid.

For instance, the Right to Know Act requires that people requesting access to records be residents of Pennsylvania.

The Third Circuit U.S. Court of Appeals recently found that a similar provision in Delaware’s Freedom of Information Act violated the Privileges and Immunities Clause of the U.S. Constitution. That federal appellate court’s decision is binding precedent in Pennsylvania, but it’s questionable how many officials in borough, township, county and state offices know that fact.

A new group – the Pennsylvania Freedom of Information Coalition – has formed in the state with the hope of elevating the level of open government.

Similar chapters of the FOIC operate successfully in other states. Primarily, these organizations help to educate citizens about their rights of access to government.
The battle for access, however, should not be left solely to interest groups.

Citizens can take matters into their own hands and get the information they’re entitled to, particularly when armed with proper information on the law.

Robert D. Richards is distinguished professor of journalism and law at Penn State, where he founded and co-directs the Pennsylvania Center for the First Amendment. He also is vice president of the board of directors of the Pennsylvania Freedom of Information Coalition.

• A GREAT idea in Pennsylvania . . .

As support for providing greater access to public records grows, the Pennsylvania Newspaper Association is providing in-depth interviews with sponsors of open records legislation on its blog, www.passopenrecords.org.

Jamie Blaine, a former newspaper publisher who edits the blog, sat down with Senate Majority Leader Dominic Pileggi, R-Delaware, sponsor of Senate Bill 1, and Rep. Tim Mahoney, D-Fayette, a freshman lawmaker who is sponsoring House Bill 443. Sen. Jim Ferlo, D-Allegheny, who also has sponsored open records legislation, Senate Bill 765, is expected to provide an interview in the near future.

Blaine asked the sponsors about their motivation for strengthening the state’s Right To Know Law and questioned them on specifics of their bills, including how they would treat lawmakers’ records, whether Penn State’s records should be subject to the law, and which exemptions to access they believe are necessary.

“Lawmakers are saying this is a priority issue for the General Assembly so we asked the sponsors of the legislation exactly what they are expecting and what they are hoping to accomplish through their measures,” said Blaine. “We will post their responses on the blog.”

PNA has been calling for more government openness for years but had been met in the past with significant opposition from legislators and others. Tim Williams, PNA President, said that last year taxpayers across Pennsylvania rediscovered their collective voice in demanding government accountability. People want better and easier access to government information, and lawmakers are listening, he added.

Pennsylvania has a reputation for having one of the worst open records laws in the country, and a 2002 survey by the government watchdog group Better Government Association ranked Pennsylvania’s open records environment 48th out of the 50 states. The commonwealth tied with Alaska. Only Alabama and South Dakota were considered worse. On the final report card, Pennsylvania received a grade of F.

As part of its reform effort, PNA also is sponsoring the Open Records Challenge, which asks citizens to obtain open records from their communities and share their experiences on the blog. The deadline for the Challenge is Oct. 5 and information is available at www.passopenrecords.org. Winners will be announced at an event on Oct. 15.

• Same old Harrisburg

So here we are, nearly a year after voters “sent a message to Harrisburg,” ousting incumbent leadership and the Republican majority in the state House of Representatives and what level of change have we seen?

Not much.

The Democratic Party-controlled House is much the same as the GOP-controlled House.

As Tim Potts, director of Democracy Rising, one of the grass roots organizations that led the charge against the “same old same old” in Harrisburg told us in an email, “There is not a single aspect of public integrity where Pennsylvania’s law is better than the laws in the other 49 states. We’re at or near the bottom on all measures of integrity.”

As Potts points out, the list of what hasn’t happened is long:

* Improving the open records law and making it apply to all three branches of government. (Both our legislature and judiciary have exempted themselves from our 48th-ranked open records law.)

* Improving the open meetings law.

Our elected representatives again passed a state budget this year which was negotiated behind closed doors and depended on the kind of wheeling and dealing that led to the approved tolling of Interstate 80.

• Openness
As ‘caretakers of community,’ counties should be transparent

Go on the web site of the County Commissioners Association of Pennsylvania and one finds the statement that “Pennsylvania’s counties are the caretakers of our communities,” highlighting a picture of smiling people.

We don’t disagree with that claim at all and have many times over the years argued that counties are the logical level of government at which to carry out such things as local and school tax collection and land- use planning, among others that are not now strictly in their province.

We’ve also been sympathetic to the fact that the state and federal governments have placed ever-increasing burdens on counties without providing the funds to carry them out.

But it is disappointing to see a key spokesman for the state’s counties, Doug Hill, the executive director of the commissioners association, attacking the Pennsylvania Newspaper Association for urging citizens to request documents from public agencies as part of an “Open Records Challenge.”

Hill has been quoted as saying the effort “is unconscionable for an organization that claims to protect the people’s interest to advocate clogging up public offices with busy work requests to satisfy a contest.”

There is, of course, absolutely no evidence that this effort to highlight the shortcomings in what is generally considered the weakest open-records law in the country has resulted in any amount of difficulty whatsoever at any level of government.

And even if you did have people lining up somewhere as part of the PNA initiative, wouldn’t that be a wonderful expression of interest by people in their government, something that is in short supply?

The “caretakers of the community,” we thought, would have gone out of their way to embrace increased public interest in government, not attempt to stifle it.

Indeed, the “Open Records Challenge” would have been a golden opportunity for public agencies at every level to remind those who work in government offices and deal with the public that they are there to assist people in a positive manner, not impede their efforts to find out more about what their government is doing.

That’s not going to happen, of course, when spokesmen for various classes of public agencies condemn as “frivolous” the efforts of members of the public to seek public records.