Well, that depends on what you mean by ‘legal’
Jan 8th, 2008 by JamieB
Over the next few days, as we wait for the Senate to reconvene on Jan. 14th and take up the House-amended version of Senate Bill 1, we will look at some provisions of the pending bill that we think need to change. Dominic Pileggi (R-Chester), the Senate Majority Leader and prime sponsor of the bill, has called SB 1 his top legislative priority and said he expects it to be on Gov. Rendell’s desk by the end of the month.
I use the word “we” intentionally. There is a good deal to like about SB1, and some of the House’s changes improved the original bill. But there are problems with the bill that need to be addressed to push Pennsylvania into the 21st century on open records. I hope you will join in the discussionand post your thoughts on what you like and don’t like about the bill . . . on what would make it stronger. . . on what, if any provisions, make it unacceptable as is.
After being passed by the Senate, SB 1 Bill 1 was sent on to the House, where it underwent some substantial changes. The House unanimously approved the bill, as amended, at the end of last year’s session and sent it back to the Senate. The Senate will take up the new version when it reconvenes next Monday.
Today let’s look at something very basic: SB 1’s definition of a “record:”
“Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a LEGAL transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document. The term includes a financial record, a legislative record and a public record.”
That was the definition that came out of the Senate, with the exception of the word LEGAL, which was added by the House.
You’ve got to wonder why.
Did the legislators mean to draw a distinction with ILLEGAL records? Is the bill closing all illegal transactions to public view? It’s hard to imagine they would be so brazen, but somebody added that single word to the document . . . even while the so-called “bonus gate” was continuing to make headlines.
Did they mean to distinguish legal transactions from, say, administrative transactions?
The point is, it’s impossible to know . . . but you can bet, if the bill is passed as written, lawyers will be challenging that provision for years to come. . . “Well, your honor, that depends on your definition of the word ‘LEGAL.’”
More importantly, the whole thrust of the yearlong effort to change the law – from flipping the presumption to broadening the definition of an agency – has been to increase public access. One of the simplest and most important ways to do that is to expand the definition of a public record. Only records that have been specifically exempted should be off-limits to the pubic.
Whatever the intent was of adding the word LEGAL, one thing is certain: it significantly narrows the definition of a public record. That is contrary to the spirit of the deliberations to this point.
The word needs to come out.