passopenrecords.org

Yesterday the Pennsylvania Senate passed Senate Bill 1 once again and sent it on to Gov. Rendell, whose spokesman said he would sign it into law.

Last May we published the Pennsylvania Newspaper Association’s six minimum requirements for meaningful open records reform. While there are some significant holes in the bill that is going to the governor’s office, it does pretty well on the “minimum six.”

1. An acknowledgment that records belong to the public. The law does this, and that is a sea change in Pennsylvania.

2. An improved definition of “public record” and a presumption of access. The “flip of presumption” has been the heart of the matter. Now records are presumed to be public, unless specifically exempted.

3. Burden of proof on agency. The corollary of flipping the presumption has been to place the burden of proof on the agency to show that a record is exempt from access under the law. While the list of exemptions is long – and there are some overbroad provisions that invite abuse – citizens should no longer have to prove their right or need to get access to public records.

4. Broader definition of “agency.” The definition of “agency” must include the General Assembly, state-related universities and any organization or entity that performs a public function and relies substantially on taxpayers’ money. While the legislature is treated differently from the general public under the new law, it is included, and the presumption of openness applies.

5. Administrative appeal/Office of Access. Pennsylvania must create an Office of Access to hear appeals and furnish guidelines, non-binding opinions and other appropriate information about the laws to both agencies and citizens. SB 1 does set up an Office of Open Records, but it puts it in the Department of Community and Economic Development, whose director is chosen by the governor, rather than in the independent Ethics Commission. In addition the legislature’s records are not covered by this office, leaving citizens faced with the prospect of a lawsuit to gain access.

6. Meaningful penalties. Penalties for open records law violations must be enforced and the fines increased to make them meaningful. Agency members who deny access improperly should also be required to participate in training provided by the Office of Access. SB 1 increases penalties . . . but only to $1,500, which, in the words of Barry Kauffman of Common Cause, is “budget dust” for most public agencies.

So that’s the status of the “minimum six” as the bill heads to the governor.

What do you think?

Footnote: Last week a Commonwealth Court ordered the Pennsylvania Higher Education Assistance Authority to pay three news organizations — the Associated Press, WTAE-TV in Pittsburgh, and the Patriot-News of Harrisburg — $48,000 in legal fees as a result of their dogged pursuit of PHEAA’s over-the-top spending records. That confrontation, with PHEAA claiming its records were not subject to public disclosure – a position they lost all the way to the Pennsylvania Supreme Court – was a driver in the march toward open records reform. As the Carlisle Sentinel points out, “when PHEAA pays fines or restitution, it does so with taxpayer money,” but still, we hope, another message has been sent about agency accountability, government transparency and, ultimately, public trust.