passopenrecords.org

Comments of Teri L. Henning
General Counsel
Pennsylvania Newspaper Association
(717) 703-3076
terih@pa-news.org

August 7, 2007

HB443 is a substantial revision to the current open records law. It begins with the presumption of access to agency records and lists 24 categories of exemptions, including records that are confidential by law, records that would threaten public safety, and records that would disclose ongoing police investigations.

Although we believe that HB443 represents a significant improvement over current law, we have concerns about certain provisions, including the bill’s limiting language within the definition of “public record,” its exemption for most “e-mail,” its use of the Office of Access to handle records requests to state agencies, its increased response time for agencies, and the potential penalties for “commercial use” of public records.

Presumption of Access to public records
HB443 starts with presumption that records in the possession of public agencies are public records, and the burden is on an agency denying access to prove that a record is not public. We strongly support this aspect of the Bill, as we believe that the presumption of access is critical to any meaningful open records reform.

Without the presumption, the public continues to struggle for access even to documents that should clearly be seen as “public” under the law.

 The Pennsylvania Higher Education Assistance Agency relied upon our current law in denying access to agency invoices that would detail the spending of over $800,000 dollars at board retreats. We now know that it incurred over $400,000 in legal fees to prevent public access to this information.
 The Pennsylvania Department of Transportation relied upon our current definition of “public record” in denying access to its list of dangerous intersections and locations on Pennsylvania’s roadways. The Commonwealth Court agreed that these lists do not fall under the definition of “public record” in our current Right to Know Law.
 The Pennsylvania Department of Transportation has also relied upon our current definition in denying access to bridge safety inspection reports.

Under our current law, the presumption is against access, and the burden is on the requester. As a result, agencies routinely deny access for a host of reasons, including that: 1) the requester did not prove Pennsylvania residency; 2) the requester did not meet the burden of proving that the document is an “account, voucher, or contract” or “minute, order or decision;” 3) the requester did not correctly identify the name of the document; or 4) the release of the document could be embarrassing to a public official or employee. In our view, these are not legitimate grounds to deny access to records held by government agencies.

The question a government agency asks shouldn’t be: “Can we deny access to this record?” It should be: “Is there a reason that we can not provide access?

Covered Agencies
HB443 would cover state agencies, independent agencies, local agencies, courts, and legislature. It specifically includes state-aided, state-owned, and state-related colleges and universities, community colleges, entities performing governmental functions, and entities deriving at least 25% of their funds from state or local public money.

Definition of Public Record
The Bill defines “public record” to include all documents or material (regardless of physical form) “made or received in connection or relating to the work of an agency, except those documents exempt or prohibited from disclosure under Federal or State law. The term does not include those items that are clearly personal in nature and unrelated to the spending of public funds or the duties imposed upon the agency.”

We believe that this limitation [in bold] is both unnecessary and has the potential to create confusion. First, the definition is already limited to documents “made or received in connection or relating to the work of an agency…” This phrase would exempt wholly-personal records that are unrelated to the work of an agency. The last sentence adds a further limitation and begs the question of what is “clearly personal” and what records are “unrelated to the spending of public funds or the duties imposed upon the agency.” In order for the presumption of access to be meaningful, it must start with the broadest possible definition of ‘public record’ and then list the appropriate exemptions.

Exemptions
The bill lists 24 categories of exemptions, including records protected by law or court order, medical records, employee disciplinary records (except for status and action taken), records that would threaten personal security or public safety, trade secret documents, certain donor-related documents of agencies, documents relating to ongoing investigations, records that reflect internal, pre-decisional deliberations of agency members, and e-mail, except where e-mail contains discussion of the spending of public money or the duties and powers of the office, officeholder or agency.

Although we support many of the exemptions, we have concerns about the language that would exempt most “e-mail” from the definition of “public record” and believe that this inappropriately elevates form over substance. It is our view that the public nature of agency records should be determined based upon the content of those records and that to decide otherwise would permit agencies to conduct much of the public’s business behind closed doors simply by using e-mail or some other “exempt” form of communication.

HB443 also expressly states that open access is in the public interest and that the exceptions shall be strictly construed, even where examination may cause inconvenience or embarrassment. Section 303(d). We strongly support this provision.

Making a request
The bill contains troublesome, and we believe unnecessary, language in section 301(c) Written requests, where it provides that a request must be specific enough so as “not to be overly broad or burdensome or to be clearly harassing or of no legitimate purpose.” The language requiring a request to be sufficiently specific is already in the Act, and does provide protection for overbroad, non-specific requests. As a result, we believe that this phrase is redundant and unnecessary. The language that purports to limit requests that are “of no legitimate purpose” is even more problematic, as it suggests that an agency can evaluate a requester’s intended use of a document and perhaps deny a request that an agency deems illegitimate. Both current law and HB443 prohibit an agency from denying access based upon a requester’s intended use. See Section 304. This language would seem to invite agencies to deny a request whenever an agency deems it too burdensome or without merit.

Time for agency response
20 business days for initial response for requests for state agency records; 10 business days for local agencies (except when seeking an extension – then local agencies must respond within 5 business days). This is a change from current law, which requires state agencies to respond within 10 business days and local agencies to respond within 5 business days. Both current law and HB443 permit an agency to extend the response time up to 30 days for redaction, legal review, retrieval of documents stored in remote location, or staffing limitations.

We are concerned that the bill actually increases an agency’s response time, beyond the limits set forth in the current law. Under the current law, which requires state agencies to respond within 10 business days and local agencies to respond within 5 business days, agencies already routinely invoke their right to 30 additional days, causing significant delays in access. Further extending agency response times in the manner suggested by HB443 would only create further delays and would be detrimental to the public’s right to know.

Commonwealth Office of Access to Public Records
HB443 creates the Commonwealth “Office of Access to Public Records” (OATR), an independent agency to hear administrative appeals of records denials. We support the creation of an administrative office to handle initial appeals and believe that this could greatly benefit the public in obtaining access to agency records.

Unfortunately, as written, HB443 also has the OATR serving as a centralized office to handle requests for Commonwealth (state) agency records. We believe that this is likely to cause unnecessary delays in access to public records. Local agencies still handle requests directly from the public (under HB443), and we believe that the Commonwealth agencies should handle their initial responses as well.

The OATR also provides information about public records, conducts training, and hears administrative appeals of record denials. Presumably, as currently written, it would also hear appeals of its own decisions with respect to Commonwealth Agency requests. OATR decisions may be appealed to court.

Fines/Penalties
HB443 increases fines for willful violations by agencies to $1,000 (from $300). It provides for civil penalty where a legal challenge is frivolous of $1,000-$10,000. It provides for a civil penalty where a requester brings frivolous/bad faith appeal of $100-$1,000. It permits a court to order mandatory training for agency officials and employees. We support increased fines for bad faith denials by agencies and court-ordered training.

Fees
HB443 limits the fees that agencies can charge the public, and we support fee limitations. Fees for duplication must be similar to duplication fees at local copying services. HB443 also prohibits fees for an agency’s “search time” except where the search places unreasonable burden on agency employees and the agency can establish and itemize its costs for complying with the request. Any such fee must be reasonable.

Commercial Use/Misuse
HB443 makes it unlawful to obtain records for a “commercial purpose” unless the requester has identified the commercial purpose when required by an agency. It is also unlawful to use or knowingly allow the use of the record for a different commercial purpose, or obtain the record for a noncommercial purpose and then use or knowingly allow the use for a commercial purpose. Commercial purpose is undefined, although mere publication by newspapers, periodicals, and radio or television stations is not a “commercial purpose.”

Section 707 of the bill punishes the “misuse” of a public record. Presumably, this provision relates to the Commercial Purpose section above, however, “misuse” is undefined. The provision provides that anyone misusing a public record shall be liable for three times the amount that would have been charged if the commercial use was disclosed, costs, attorney fees, and any other penalty established by law.

Fundamentally, we object to the commercial use provisions because we believe that they fail to recognize that public records are records already owned by the public, and they attempt to control (or at least profit from) the subsequent use of a public record. As written, a member of the public could be significantly penalized if he or she does not understand that he or she is using a record for “commercial purposes” (which is undefined) or even if he or she allows a later commercial use/misuse.

We believe that penalizing commercial use and requiring requesters to disclose commercial use is inconsistent with other provisions of the bill (and current law) which prohibit agencies from requiring requesters to disclose the reason they are seeking the record or deny access based upon an intended use. The provision is also problematic because the terms “commercial purpose” and “misuse” are undefined. Although there is a limited exemption for certain media entities, it would presumably not apply to online news outlets.