passopenrecords.org

The Pennsylvania Freedom of Information Coalition (PaFOIC) and PA Newspaper Association hosted a Forum on Open Government on Monday evening at the Fredricksen Library in Camp Hill, PA.

Kim deBourbon of the PaFOIC hosted the event, and Scott Gilbert of WITF-FM served as moderator.

The first panel’s topic was “What must or must not be includede in a reformed Open Records law?” Participants included Doug Hill of the County Commissioners Association of PA , Nora Winkelman of the Governor’s Office of General Counsel, Larry Frankel of the ACLU of PA, Corinna Vecsey Wilson of the PNA, David Newhouse of the Harrisburg Patriot-News and Tim Potts of Democracy Rising PA .

In the second panel, Terry Madonna, Director of the Center for Politics and Public Affairs, Professor of Public Affairs, and Director of the Franklin and Marshall Keystone Poll hosted Senator Jeff Piccola and Craig Staudenmaier, who is general counsel for the PaFOIC who specializes in media law and Right to Know cases.

Doug Hill was on deck first, and started his presentation by “mythbusting.”
CCAP’s Myth #1: ‘Open records are a matter of contention.’ PA’s 67 counties receive hundreds of thousands of records requests, and only a handful of areas are in contention. The CCAP believes the state needs to strike a balance between public access and privacy.

CCAP’s Myth #2: ‘The current law doesn’t work.’ Hill said the current law (which was enacted in the 50’s, minorly tweaked in the 70’s, and last updated in the 90’s, when policies for compliance were enacted) is “bare bones” but strikes a good balance but it does need some fine-tuning, for example, to include the legislative body of government and quasi-state agencies (PHEAA, state-related universities).

CCAP’s Myth #3: ‘We have a problem with what’s open.” The CCAP have been an active participant in the open records reform debate - the CCAP and PNA do agree on some points, but not on all of them.

Hill explained that PA’s 67 counties are a diverse bunch - from the city to the suburbs to our more rural areas, a policy that works for one county might not work for another. Hill’s wish list? A law that isn’t burdensome to smaller agencies, lets current case law stand, gives clear guidance, sets parameters and is clear on what’s open and closed.

Nora Winkelman spoke next. She noted that PA’s open records law ranks 47th in the US - and the only states below us, Alabama and South Dakota, both received a score of 0. Since Ed Rendell was elected, state agencies have received more than 5000 right-to-know requests and about half have been denied. About a quarter of those were eventually released thanks to Governor Rendell’s intervention.

The Governor believes there is a need to balance public safety and private security, and that an open records law should open up how judges spend their money, state-related agencies and state affiliated universities but keep research information and individual donor records private while revealing salaries of officers and high-level employees. The Governor also thinks there should be an independent third party who ultimately determines whether an item is open or not, and that determination should depend on the content, not the format - a blanket exemption for email should not apply. At the same time, any new legislation should protect traditional privileges such as attorney/client confidentiality and provide access to citizens and accountability for officials.

Winkelman urged citizens to contact their legislator about open records reform.

Larry Frankel agrees with flipping the presumption, which would be a major shift in how PA views records. Also agrees that content, not format, should decide “openness” and believes that HB 443 went overboard in privacy protection. Some of the problems include the blanket exemption of emails, the exclusion of communication between elected officials and state agencies, and another section excludes email but not those relating to public money, which he believes is still too broad. His main criticism of SB1, which came out of committee earlier on Monday, was that it flips the presumption for all branches of government BUT the Legislature.

Corinna Vecsey Wilson acknowledged the leadership of Senators Piccola Pileggi in shepherding SB1. PNA’s 6 elements of a strong open records bill include the following:
1. Acknowledgement that records belong to the public
2. Improved definition of ‘public record’ and a presumption of access to public records
3. Burden of proof on the agency denying access
4. A broader definition of ‘agency’ that includes the Legislature, state-related universities and organizations that rely on state funding
5. Creation of a centralized administrative appeal office, open records ombudsman, or similar entity that assists citizens with records denials without the need for court action
6. Meaningful penalties for open records law violations

In contrast, the 6 elements they can NOT support include:
1. A blanket exemption for email. If enacted, PA would be the only state to treat email in that way.
2. An exemption for all correspondence between an elected official and state agencies.
3. An exemption for all constituent communication - openness should depend on the substance, and certainly provide for exemptions to protect a constituent’s privacy.
4. The “overly burdensome” language is too broad.
5. Any provisions that would lengthen the amount of time agencies have to reply to an open records request.
6. Any provision that would impose more fees than is allowed under the current law.

David Newhouse, who got the first applause of the evening, opened with anecdotes about everyone’s favorite little agency that could, PHEAA - who spent $400k in legal fees to keep from disclosing $800k in spending. He pointed out that government is “of the people” - we are paying for every aspect of our government, so we have a right to see “every phone record, every email, every part of government - whether it’s bridge inspections of ‘work product.’” At the same time, there should be exemptions for privacy built in - social security numbers, medical records, true security matters, and private correspondence between legislators and constituents should be kept private.

Tim Potts believes that PA is the “most corrupt state government in the US” and hopes that it will be easier to “connect the dots” from lobbyists to legislators to legislation. Someday, he hopes that the state will market public information to taxpayers and budget for citizen access “just as they budget for $360 million in walking-around-money.” He strongly believes that the state should store information in a format easily accessible to citizens.

In the question and answer session, Wilson was asked that “at the end of the day, is everything [open records legislation] going to be perfect?” She answered “No. We need to seize the moment to reform our law but not pass something that would not advance the cause.”

Sen. Piccola opened with an update on SB 1, which he says “isn’t perfect but it’s a vast improvement.” It has 15 exemptions. Piccola proposed four failed mendments which would do the following:
1. Flip the presumption to include the legislature
2. Open up lawmakers’ ‘discretionary spending’ (WAMs)
3. Remove criminal penalties from the bill
4. Allow successful citizens to recoup attorney fees

The Senator said that if open records reform is successful this session, it won’t come up again for a long time. Like us, he admits to being more optimistic a month ago and believes that right now open records reform has a 50/50 shot at passing.

An audience member asked what lawmakers were waiting for and predicted a lack of action would result in the same kind of backlash as the pay raise - and Piccola agreed, “It’s something you wouldn’t want to deal with if you were facing a tough primary.”