passopenrecords.org

Some reflections on House Bill 443 as it was reported out of the State Government Committee on Wednesday night (line listings are from Printer’s Bill No. 813, and there have been some changes since).

Chapter 1 gets off to a great start by saying all the right things:
(1) The free flow of information between State Government and its citizens is essential to the continued growth and success of the democratic process, and access to public records enables citizens to be informed about the official business of public officials and public employees and the activities of government agencies.

(2) Access to public records should be balanced against the protection of personal privacy rights and ensuring the public safety and welfare of this Commonwealth and its citizens as all are vital to the preservation and functioning of the democratic process.

(3) Access to information on the appropriation, expenditure and investment of public money is important to encourage public oversight of its government.

(4) Access to information about the conduct and activities of public officials, public employees and government agencies assists the public in understanding its government, monitoring its government and making informed judgments about how to exercise its political power.

(5) Government has a duty to preserve the physical integrity of public records for purposes of public access.

(6) Technological advances have resulted in new ways to create, store and use public records and necessitate rules regarding access to public records to make information available to the public and rules to provide guidance to public officials and public employees charged with the responsibility of making public records accessible.

The next 20 pages pretty much eviscerate the noble principles set forth in the preamble. For starters, the presumption that a record is public does not apply if it is “protected by a privilege or . . . covered under Section 307” (p 4, line 46). Section 307 (“Records deemed inaccessible”) runs to seven single-spaced typewritten pages. .The privilege, I guess, can pick up what falls through the cracks.

And what’s exempted? Well, for example . . .

• Any request deemed to lack “significant specificity” or that is “overly broad or burdensome” or an attempt “to harass the agency” (p 5, line 35) – language that sounds like it was provided by PHEAA.

• While salaries of public employees are public, expenses (even unvouchered ones) appear to be off limits (p 8, line 33).

• Something called “work product” (p. 11, line 10) – a category so expandable it could be made of flubber – and which includes:

• Email . . . “provided that it does not contain discussion of the spending of public money or the duties and powers of the office, officeholder or agency” (p11, line 30). See “technological advances” (above) – I wonder what form of communication is going to spike in Harrisburg; and

• Audits. Audits? Yes, audits (p. 12, line 44).

• And this, under “miscellaneous provisions:” “With respect to all agencies, application of this act shall not cause a record in existence on the effective date of this section to become a public record if it was not publicly accessible under the former act of June 21, 1957 . . .” (p 21, line 19). The Constitution prohibits “ex post facto” laws, so it seems unfair of the skeptics to call this amnesty.