passopenrecords.org

Obviously, if it takes two days to outline a partial list of problems, there is a lot wrong with House Bill 443.

Yesterday, we wrote about the exemption of all – yes, all – emails from the open records law, as well as about blanket exemptions that create exceptions so large that they effectively neutralize the much touted – and critically important – “flipping” of the presumption of access. And we noted that the bill also exempts performance audits, those pesky investigations that use public funds to see how agencies are using other public funds.

Speaking of the “presumption of access,” in the current version of HB 443, it would not apply to most records created prior to the new law. In what Tim Potts of DemocracyRisingPa calls the “cover-up provision,” pre-existing records, with very limited exceptions, would continue to be governed by the old, restrictive standard. Not only would this create a complicated, two-tiered system for evaluating open records requests, it would effectively make them unavailable to the public. If the point of the new law is to “open Pennsylvania government” – and it is, isn’t it? – this doesn’t do that.

But wait, we aren’t finished. HB 443 would expressly preserve any court rulings that currently restrict access to agency records. Why? The inviolability of the judicial system? I don’t think so. For if the new law is intended to open government, not keep it closed, then why should cases that were decided under the old law be expressly protected simply because they “exist?” Some of those decisions – such as the one announcing that PennDOT doesn’t have to release its list of most dangerous roads and intersections – are simply wrong. Others need to be reassessed under the new law, which will clearly contain a number of “exemptions” to protect necessary records. The principle ought to be to correct bad practices from the past, not protect them into the future.

Finally, the process used by the House to rush this Bill to a vote was little more than a testament to why we need more transparency in the first place.

• The omnibus amendment to the bill was not publicly available until hours before the committee meeting.

• No stakeholder had time to review or comment on the amendment prior to the meeting. In fact, I think you could argue that no legislator did either.

• Significant amendments were added during the committee meeting without any public input.

• And the committee suspended the rules that normally apply to timing of amendments.

As a result, more than 80 amendments were proposed over the next few days, and they were debated with minimal time and negligible input from interested parties.

Legislative leaders have been promising reform for years – or at least since the 2006 elections. So, at the first opportunity to show they meant it, they suspended their rules and rushed a bill through committee and to the House floor. That it was an open-records bill is simply icing on the cake of irony.

This is far from an exhaustive list of problems with HB 443. Suffice it to say that if better access to government is the goal, this bill will not achieve it.

HB 443 is not reform, and its passage would make it harder than it is now – and that is mighty hard – to hold public officials and agencies accountable for their decisions and their spending.