passopenrecords.org

In a vote that was expected but still wrong, the House of Representatives voted 127 to 69 against making emails subject to the open records law (HB 443) they are currently debating.

Rep. Chris Ross (R-Chester) was one of the 69 who voted in include emails. Asked why, he said that he did not understand the distinction that others were making between emails and letters. In other words, it isn’t the form of the communication that should matter; it’s the content. What difference does it make whether the correspondence is electronic or paper?

This seems both reasonable and obvious. Others who voted “Yea’ with Rep. Ross included Speaker Denis O’Brien, Tim Mahoney (D-Fayette), the sponsor of HB 443 – which is looking very different from the bill he originally offered – and Josh Shapiro (D-Montgomery). But long-time leaders of both parties, John Perzel (R-Philadelphia) and Bill DeWeese (D-Greene) were among the large majority who voted against the amendment.

Ross also talked about the “implementation challenges”– including, for example, the difficulties he foresees with a provision calling for the retention of records. Saying that he gets “several pounds” of daily mail plus a lot of unsolicited email, he wondered how the legislature would deal with the requirement to retain all records indefinitely or face a $1,000 fine. He weighed the enormity of that task against the need to prevent people from destroying records that should be retained. One thing he thought his office would do is to set up parallel files, one for privileged communications and the other for non-privileged communications, which would then need to be scrubbed of privileged information, such as social security numbers.

Finally, he wondered, how do you prevent stonewalling — or the claim of an agency that it does not have a record that has been requested? Not a new problem, to be sure, but how does a citizen without deep pockets prove that a record exists?

It’s refreshing to move beyond the rhetoric and grapple with some concrete issues of implementation.

• From Democracy Rising: Email: The Last Refuge of Scoundrels?
After considerable debate, House Bill 443 continues to let public officials keep email secret, which is the 21st Century equivalent of keeping paper secret.

The argument for secrecy is that people who send emails believe their writings are private. However, as integrity advocates point out, it’s the content of the communication that makes something a public or a private document, not the form in which it is communicated. Consider, for example, that many “secret” emails can become public documents if someone clicks the “Print” icon on a computer.

The principle to keep in mind is easy to understand: If it deals with public money or with how public officials decide public policy, it should be open to the public with very few and very narrow exceptions.

Listening to the debate, you would think that no one had ever grappled with this issue before, much less resolved it in favor of the citizens. But Connecticut did a decade ago. Click here to see their policy, which is well worth the two or three minutes it will take to read.

In short, “A message sent or received by E-mail in the conduct of public business is a public record.” It is treated as other public records in one of three ways:

* Transitory records: Delete them. Until they’re deleted, they’re open to the public.
* Less-than-permanent records: Keep them for as long as the law requires.
* Permanent records: Keep them forever and print them out if necessary.

The common-sense rule for emails, at least in Connecticut, is clear: DON’T PUT ILLEGAL, EMBARRASSING, CORRUPT OR CONFIDENTIAL INFORMATION IN AN EMAIL!

Duh.

• Good news/bad news

Finally, in a new report card on states’ transparency, Pennsylvania moved up to a seven-way tie for 17th place, a big jump from 48th. Unfortunately, the state still got an F.