The two bills . . . so far
Oct 31st, 2007 by JamieB
Well, we are in the thick of it now. The Senate State Government Committee unanimously approved an amended version of Senate Bill 1 that, among other things, “flips the presumption,” sets up an open records clearing house, cuts the agency response time, increases the penalties, and generally tries to bring uniformity to the process across the state. Meanwhile, the full House is ready to discuss the unrecognizable version of HB 443 that came out of its State Government Committee and the 70+ amendments that have been filed since.
Let’s focus on the Senate bill, both because its structure is a bit firmer than the protoplasm that emerged from the House committee and because there is a lot more about it to like. No, it isn’t perfect, and several citizens and reform groups have made their objections known. The primary objection is that the bill treats the legislature differently from other agencies, which is no small matter. But as we saw in the House deliberations, lumping everyone together can really bring the partisans out of the woodwork, with the result that we ended up with a bill that sounds nice, provides insufficient transparency, and would make the next government less open than the one we have now. Right now, the open-records laws in more than two-thirds of the states treat their legislatures differently, and Congress has exempted itself from the federal Freedom of Information Act. No reason we can’t do better than that, but we need to know what the landscape out there looks like. So, despite its imperfections, SB 1 seems a better place to focus our efforts than HB 443.
Of particular note were two amendments offered by Sen. Jeffrey Piccola (R-Dauphin) that the Senate committee voted down. The first was that the so-called WAMs that legislators earmark for local projects be publicly disclosed. That seems like a good idea since, even though WAMs are often treated as personal donations, the checks are paid with public money. Sen. Piccola’s second amendment would have extended the presumption of access to cover the Legislature, and I do wonder why we can’t do that and still craft a clear list of exceptions that will protect the privacy of private citizens and what Senate Majority Leader Dominic Pileggi has called the “deliberative process.”
A state Senate committee has approved a measure to help citizens get information from state and local agencies, but critics complained that senators are using a weaker standard on themselves than on other branches of government.
Common Cause/Pennsylvania Executive Director Barry Kauffman called the bill that was approved yesterday “a tiny step forward, but it’s still inadequate.”
Eric Epstein of Rock the Capital, one of the pay-raise protest groups, complained that senators largely “left themselves out” of the open records process, a charge denied by Senate Majority Leader Dominic Pileggi.
Mr. Epstein contended that the number of records the Legislature would have to release is “less than that covered for the governor’s agencies and local municipal agencies.”
The criticism started after the State Government Committee voted 10-0 to send to the full Senate a proposal called Senate Bill 1, sponsored by Mr. Pileggi. The bill does something important with regard to the executive branch of state government, run by Gov. Ed Rendell, and many state and local agencies. It reverses the long-held presumption that state records were private unless a requester could convince an agency to make them public.
“A record in the possession of a commonwealth agency or local agency shall be presumed to be a public record unless that record is one of the (24) listed exceptions under this act,” the bill states.
Exceptions to the law include records containing someone’s Social Security number or medical records, homeland security plans, trade secrets, plans for computer safety or security, state emergency response plans, floor plans or design of buildings, real estate appraisals, questions for employee tests, 911 recordings, collective bargaining talks and drafts of bills.
“Commonwealth agencies” affected by that provision include executive branch agencies under the governor, the attorney general, auditor general, treasury, the Pennsylvania Higher Education Assistance Agency, the State System of Higher Education, the Turnpike Commission and the Public Utility Commission, but not “state-related” schools such as Pitt and Penn State.
Critics complained the bill doesn’t list the Legislature itself as a “commonwealth agency.” Instead, the General Assembly would be a “legislative agency” and have a different standard for openness.
“It’s like they want to have different speed limits for different branches of government,” said Tim Potts of Democracy Rising Pa., who was an outspoken critic of the 2005 pay raise.
Mr. Pileggi said certain memos and correspondence from constituents and talks among legislators need to remain private in order to protect “the deliberative process” of the Legislature.
“There is a need for the 253 elected members of the General Assembly to discuss issues with their constituents and their staffs and among themselves,” he said. “When a constituent comes (to a legislator) with an issue, they don’t expect to read about it in the next morning’s paper.”
Sen. Anthony Williams, D-Philadelphia, said he gets much correspondence from constituents about public safety issues and crime in Philadelphia. He said he doesn’t want to have to release such e-mails or letters.
“People depend on my office to keep information about drug dealers and criminal activity confidential,” Mr. Williams said.
Pileggi aide Erik Arneson said the bill would make many legislative records public, including financial records, fiscal notes on the cost of proposals, memos on who is co-sponsoring bills, plus details of bills and their amendments, Senate journals, minutes of committee meetings, public hearing transcripts, attendance records, roll call votes, audits and annual reports made to the General Assembly.
Mr. Kauffman complained that one item which wouldn’t be made public under the bill are legislators’ “WAMS,” meaning “walking around money,” or allotments of state funds for economic development, recreation or community revitalization purposes.
Sen. Jeffrey Piccola yesterday tried to amend the bill so that legislative WAMs would have to be released, but the committee tabled his measure. He also tried to get the presumption of public access which applies to the executive branch records extended to cover the Legislature, but failed there also.
Deb Musselman of the Pennsylvania Newspaper Association wasn’t as critical of the bill as the citizens groups. She said 36 states treat their legislatures differently regarding release of information than the executive branch of government is treated. She called the committee-approved bill “a step in the right direction” and said it’s better than another bill passed by a House committee two weeks ago.
The proposed new open-records law for Pennsylvania declares that any document created by a public or government agency shall be considered an open record.
Unless, of course, it falls under an exempted category. That list runs six pages.
Such is the latest incarnation of Harrisburg’s attempt to draft legislation that would strengthen the state’s public information law - long considered among the worst in the nation.
Open-records advocates have assailed that version of the bill, scheduled for a preliminary vote in the House this week, as ineffective and filled with language so broad that many records - even some now open for public inspection - could be deemed off-limits.
The bill’s sponsors say they have proposed only exemptions necessary to strike a balance between the public’s right to know and the right of an individual - including a public official or government employee - to privacy.
“They are all commonsense exemptions,” said Rep. Babette Josephs (D., Phila.), chair of the House’s State Government Committee and sponsor of the amendment that recently added many exemptions. “I believe if people would look at them carefully, read them carefully, they would agree.”
Rep. Josh Shapiro (D., Montgomery), cochair of a recently created commission examining legislative reforms, said he believed the bill “needs a lot of work and needs to be strengthened.”
The way it reads now, he said, it is weak, and he would not vote for it.
But Rep. Greg Vitali (D., Delaware), who sits on the State Government Committee and who sponsored the amendment to exempt e-mail from public view, said he was surprised by how disappointed open-records advocates were by the changes.