Let’s continue our discussion of some specific concerns about Senate Bill 1. As always, please weigh in with your thoughts. In the three provisions below, anything in capital letter was added by the House just before the Christmas break.
• Section 301 (b) (page 12, lines 25-6). Prohibition – A Commonwealth agency may not deny a requester access to a public record due to the intended use of the public record by the requester UNLESS OTHERWISE PROVIDED BY LAW.
At best, the last phrase, which also was added to Section 302 (b), page 13, line 2, and to Section 703, page 20, line 25 is unnecessary and confusing. At worst, it simply nullifies the whole point of the legislation. Why? Because it suggests that an agency potentially has the right to deny a request based on the use to which the information will be put. That is clearly not the business of the agency to determine – anyone who has ever asked a government official for a document knows how daunting is the question, “Why do you want to know that?” If the record is a public document, the requester is entitled to have access to it.
• Section 506 (c) Agency discretion – An agency may exercise its discretion to make any otherwise exempt record accessible for inspection and copying under this chapter, if all of the following apply:
3) The agency head determines that the public interest favoring access SUBSTANTIALLY outweighs any individual, agency or public interest that may favor restriction of access.
Substantially? What does that mean? And who decides? Again, introducing this kind of subjective modifier undercuts the purpose of the bill. Let’s stop parsing the language – either it does or it doesn’t, either it is a public record or it isn’t. We shouldn’t need to have lawyers and English professors on call for every request.
• SECTION 905. ADMINISTRATIVE DENIAL.
(2) AN AGENCY MAY DENY ACCESS TO A PUBLIC RECORD, LEGISLATIVE RECORD OR FINANCIAL RECORD DUE TO THE FAILURE OF THE REQUESTER TO PAY ANY FEE ASSOCIATED WITH A PREVIOUS REQUEST.
OK, let’s say that the Pennsylvania Higher Education Assistance Agency (remember PHEAA?) decides to charge a reporter (let’s pick one at random . . . say Jan Murphy of the Patriot-News of Harrisburg) $5,000 in fees for access to documents she had requested. And let’s say that Ms. Murphy declines the request. Who knows why? Maybe she fears the wrath of her publisher. Or more likely, maybe she feels the charge is exorbitant, and so she disputes the fee. Is PHEAA now entitled to deny her future requests forever . . . or until the issue is settled years later in court? And who is the requester here . . .Jan Murphy? Or the Patriot-News? For all who think this is far-fetched, read Murphy’s accounts of her efforts to get information from PHEAA — a multi-year struggle for which she was awarded the Pennsylvania Newspaper Association’s Benjamin Franklin Award for Excellence (2007) last October.
By throwing in a lot of modifiers, the House has made the process much more complicated than it needs to be. More importantly, the changes undercut the bill itself and threaten to undo the hard work and good will that its sponsors have generated for more than a year. SB 1 “flips the presumption” and makes “public” records public. That small, yet momentous change, puts the burden on the government agency to demonstrate why a particular record should not be accessible. That should be done through a list of specific exemptions — not by adding broad and subjective adjectives and adverbs that jeopardize the spirit of the proposed law.