passopenrecords.org

Two powerful and high-profile politicians announce their intention to leave office on the same day. Although their stories are completely unrelated, each is leaving under a cloud. And that cloud may also be taken as a symbol of the secrecy under which they both operated. Is there a connection to be made to open records and government transparency?

It’s probably safe to say that what Eliot Spitzer resigned over and what Vince Fumo has been indicted for would not have come to light under any open records law that I know of, no matter how comprehensive it was. The open records law does not cover private assignations, nor is it meant to be a bulwark against criminal activities. The new law can do a lot, but it does have its limits.

But there is something about the irony of it all. Spitzer was elected by a margin of better than 2-1 to bring openness to New York state government, which has a reputation for secrecy and shenanigans that rivals our own state. . . . and then he fell victim to secrecy in both his political and his personal life.

In his prescient profile “The Humbling of Eliot Spitzer,” Nick Paumgarten wrote in the Dec. 10, 2007 issue of The New Yorker that “Spitzer’s agenda, broadly and loftily speaking, is to make the workings of Albany more transparent: to disentangle the corrosive influence of the special interests and to combat, if not eliminate, the nest-feathering that flourishes in the dark.”

Yet last year, Spitzer, House Speaker Sheldon Silver and Senate Majority Leader Joseph Bruno reached a budget agreement to the surprise of almost everybody . . . “but they did so in a closed-door session that gave rise to bitter complaints that Spitzer had condoned and participated in the kind of secrecy he had promised to eliminate. What’s more, he had compromised on several big items, including Medicaid spending and school funding, for which he was also criticized.”

Then came “Troopergate” and then . . .

I’m not suggesting there is straight line here. I’m just saying Spitzer fell a long way in a short time from his originally stated ideal “to make the workings of Albany more transparent.”

Senator Fumo made a career of backroom deals, and he did it with enormous success – he brought more than $8 billion of public money to Philadelphia, he was re-elected at will, and even as he resigned to deal with his indictment, he stood side by side with Ed Rendell, who has asked him to finish his term so that the governor can move his agenda. Now that’s power, and Fumo knows how to use it. And while many of his constituents revered him, prosecutors spent entire careers following his money trail. He was indicted in 1974 and then again in 2007, this time for using public money for his private life. He has pleaded not guilty.

Politics is, as they say, a contact sport, and some argue that it is only in the backrooms that effective deals get cut. Every so often, good government reformers ride into office when public disgust explodes, as it did after the 2005 legislative pay raise. As their name implies, they pass reforms. But soon, the inability to get things done brings the professional politicians back to the table. It is true that there might have been no budget in New York if Spitzer, Silver and Bruno hadn’t gone behind closed doors; and Philadelphia would have received a fraction of that $8 billion if Fumo had been less adept at wielding power.

But look where we are now. Sure there are winners in the old game of politics, at least for a time, but there are a lot more losers. In the end, for democracy to work, transparency must prevail.

• The Pittsburgh Chapter of the Society of Professional Journalists is hosting the Region 4 Conference – “Digital Democracy” tomorrow and Saturday (March 14 & 15) at the Omni William Penn Hotel in Pittsburgh.

One of the panel discussions will be on “Open Records Laws: Forum & Update,” which will compare open records laws in Pennsylvania, Ohio, West Virginia and Michigan and discuss the current status and use of the laws, proposed changes, and what a model Open Records Law might look like. The panelists are Teri Henning, general counsel of the Pennsylvania Newspaper Association; David L. Marburger, a partner in the Cleveland law office of Baker Hostetler; and Brian Farkas, the Associated Press’s news editor for West Virginia. Jeremy Steele, a director of SPJ Region 4 and a business reporter with the Lansing State Journal in Michigan, will moderate.

• DelawarePolitics.net has posted a video of yesterday’s “Transparency Press Conference” in Delaware at which Erik Arneson, Communications and Policy Director for PA Senate Majority Leader Dominic Pileggi, talked about the new open records law in Pennsylvania.

Some officials need a change of attitude

So recently opined the Reading Eagle, noting that bringing real transparency to state and local governments in Pennsylvania will require not just opening public records but changing official attitudes as well.

The example, as reported initially by the Patriot-News of Harrisburg, involved the refusal by officials of Dauphin County to provide information the amount of money the county had spent on legal fees to defend against a civil suit. Excerpts from the Eagle’s editorial follow:

Before the General Assembly finally passed and Gov. Ed Rendell signed the tougher Right-to-Know Law last month, Barry Kauffman, the executive director of Common Cause Pennsylvania, sounded a cautionary note.

“We do really have to get Pennsylvania officials and employees out of this medieval notion that they own the records rather than the people of the commonwealth,” he said.

But, if the actions of Dauphin County officials are any indication, proprietary attitudes, as Kauffman said, are going to be difficult to change.

According to a recent article in the Harrisburg Patriot-News, Louis J. Capozzi Jr., a lawyer, has filed a Right-to-Know lawsuit against Dauphin County because officials there have refused to reveal how much they paid a law firm to defend them against a separate lawsuit Capozzi filed in 2004.

In the earlier lawsuit, Capozzi claimed he was owed more than $100,000 for work he performed when he was a special counsel to Dauphin Manor, the former county nursing home, between 2000 and 2004.

In the lawsuit filed earlier this month, Capozzi also has asked the court to lower the $1-a-page copying fee the county has charged him.

Current law, as well as the law that will be implemented in January, calls for reasonable copying fees consistent with prevailing commercial prices, which are considerably less than $1 a page.

Capozzi said he believes that the legal bills he is seeking will show county officials wasted the taxpayers’ money in defending themselves against his earlier lawsuit.

For their part, the officials said they already have provided Capozzi with numerous documents he has requested at considerable cost to the county.

One of the reasons the Right-to-Know Law was revised was because too often government officials used tactics such as exorbitant copying fees or claims that they had insufficient staff to make copies as ways of making it difficult for the public to gain access to documents.

We understand that releasing the legal bills Capozzi is seeking might prove embarrassing to county officials, but the expenditure of public funds is part of the public record. Even under the weak current law, such records must be made available to whomever asks for them.

The proponents of the tougher Right-to-Know Law fought a long, hard battle, and in the end they succeeded in providing sweeping new rights for the people of Pennsylvania, providing them with access to many more documents than under the current law.

But, as Kauffman has indicated, the fight is not over. Although many government officials will comply with the law, others will resist.

However, one of the revisions of the new law is stiffer penalties for violators, which should be enough to help recalcitrant officials see the wisdom of compliance.

I know that everyone wants to focus on the feel-good news. We have a new open records bill, passed unanimously by the Senate and the House and signed with some – not a lot, but some – fanfare by the governor. And that’s fine.

But it doesn’t hurt to remember why we needed a new law in the first place . . . and why some people and organizations fought so hard to get one.

A recent article in the Philadelphia Inquirer and letter in the Patriot-News of Harrisburg remind us of two scandals that galvanized the public . . . and make us take note that one of those scandals remains a long way from resolution.

• More subpoenas issued over Harrisburg bonuses

A grand jury examining whether millions of dollars in government bonuses were given illegally to legislative aides as a reward for political campaign work recently issued a fresh round of subpoenas to House leaders.

The subpoenas seek records, including expense documents, and indicate that the investigation by Attorney General Tom Corbett known as “Bonusgate” is far from over as it enters its second year.
Spokesmen for Democrats and Republicans in the House confirmed yesterday that both caucuses received recent subpoenas.

[Tom Andrews, press secretary to Majority Leader Bill DeWeese (D-Greene) and Steve Miskin, spokesman for the House Republicans] refused to discuss details of the subpoenas.

But sources have confirmed that some of the expenses sought by the grand jury were paid through special discretionary accounts controlled by legislative leaders and long derided by critics as unchecked slush funds.

Over the years, leaders tapped those accounts for such things as meals, consultants, polling, plane trips, and gifts to staffers.

• [The Patriot-News] has invested a great deal of time and resources in recent years looking into the irresponsible and wasteful spending practices at the Pennsylvania Higher Education Assistance Agency (PHEAA). The reports uncovered millions of grant dollars squandered on bonuses, lavish retreats and silly promotional items like pom-poms and gummy brains.

Last year, I sponsored a bill (House Bill 1891) to end that wasteful spending and subject PHEAA and its affiliated agencies to the state’s Right-to-Know Law.

I am pleased to report that many of the goals outlined in my legislation have been achieved. First, PHEAA has suspended staff bonuses and ended the practice of extravagant employee retreats and spending on needless promotional items. Second, I was able to write language into our newly reformed Right-to-Know Law that subjects PHEAA and its foundations to the new law for the first time.

I applaud PHEAA’s board for their hard work in taking the necessary steps to rein in uncontrolled spending and manage the agency in the best interests of the students. Their work, coupled with that of the Legislature, will make PHEAA more open, accountable and helpful to students and families in Pennsylvania.

Josh Shapiro (D-Abington), Deputy Speaker of the House

Just a coincidence, no doubt, but PennFuture, the environmental advocacy organization, last week issued a press release headlined “Give us the Splendid Sun,” which called for the passage of SHB 1 . . . .No, not Senate Bill 1, the open records bill that Senate Majority Leader Dominic Pileggi (R-Delaware) ushered through the legislative process throughout most of last year until it finally reached the governor’s desk for signature in February. No, this is Special Senate House Bill 1, which turns out to be, not about open records or open meetings, but renewable energy.

I would tell you more about this bill, and some day I might. But, ironically, just days after I published some opinions from others about how the Pennsylvania legislature needs to step into the “modern” world of the Internet – both to make records more accessible to the public and to avoid creating another cumbersome bureaucracy – the legislature’s website has been down for the last two days.

Anyway, PennFuture’s press release leads off with a line from the poet Walt Whitman, “Give me the splendid silent sun, with all his beams full-dazzling!”

“Here in Pennsylvania, that splendid silent sun is about to be harnessed to create new clean energy, yielding a bounty of new, permanent, great green jobs, clean air, and pollution-free power. Making sure the sun’s dazzling beams are put to work now in Pennsylvania, by ensuring early investments in solar with the passage of Special Senate House Bill 1 (SHB 1), is job one.”

Whitman’s sun can do double duty in Pennsylvania — by shining into places we have not been able to see for a long time — as we look forward to a more transparent and accountable state government, thanks in good part to the unanimous passage of the other Senate Bill 1.

Stop me if this sounds familiar, but an editorial in the March 4th edition of the Nashua, New Hampshire, Telegraph, discusses that state’s efforts to get a better right-to-know bill passed. In New Hampshire they appear to combine our state’s Right-to-Know (which covers open records) and Sunshine (which covers open meetings) laws . . . but that makes sense, as they are really two sides of the same coin of government transparency – a currency that seems as rare in New England as here in Penn’s Woods.

“On Wednesday, the House of Representatives is expected to vote on a bill that would make changes to the New Hampshire Right-to-Know Law, the state law that is intended to ensure the actions and records of state and municipal governments are open to the public.

“While the bill isn’t perfect by any means, it does represent a considerable improvement over attempts the past two years to clarify how the law applies to computerized records and the use of e-mail, online chat, text messaging and other forms of electronic communication to conduct government business.”

The Telegraph editorial then goes on to discuss the efforts of media and reform advocates to stop the use of something called “sequential emails,” which would have allowed government officials to communicate with each other in private and thus circumvent that state’s open meetings law.

Those efforts, after failing early on, ultimately succeeded: “This time around, the bill makes clear that communication outside a meeting – including ‘sequential communications among members of a public body’ – shouldn’t be used to circumvent the intent of the law.”

Inventive, these public servants.

The Telegraph then takes on the absence in New Hampshire “of any administrative appeal or enforcement capabilities on the part of state government.

“As a result, the only avenue available to individuals who believe a public body has violated the provisions of the law is to file a complaint in Superior Court on their own dime. While there is a chance that they might be able to recover attorney’s fees should they win the case, the likelihood of that happening under the law’s restrictive language is pretty remote.”

And for a model, it looks to none other than the Commonwealth of Pennsylvania:

“Coincidentally, the latest state to deal with that issue is Pennsylvania, where the governor signed a bill last month overhauling that state’s open records law.

“In addition to shifting the burden of proving whether a document should be public or private from citizens to the government, the bill also creates an Office of Open Records to mediate disputes.”

And finally, the newspaper bemoans the state’s low ranking and failing grades in open records competitions, a complaint heard far too often for far too long around these parts as well:

“The fact that New Hampshire is one of the states without an administrative appeal process is among the reasons why it earned an F (only 41 points on a scale of 1 to 100) in a report compiled by the Better Government Association and the National Freedom of Information Coalition last year.”

I look forward to Pennsylvania’s next report card. Time will tell whether our new law, which goes into effect January 1, 2009, will put us on the Dean’s List, but it seems clear that we have moved head of the Granite State and many others in the last month.

Organizations that will be affected by the new open records terrain in Pennsylvania are moving to make sure their members understand the coming rules.

This is a good sign.

The Pennsylvania School Boards Association announced a couple of days ago that it will present a series of Web conferences on: ‘Open Records: The End of Right-to-Know as We Know It’

In light of the recent signing into law of changes to the state’s open records law by Gov. Edward Rendell, school districts have a host of questions, which PSBA hopes to answer in many forms, including an upcoming three-part series of Web conferences.

What will the changes mean for school entities? How will it affect daily operation? What records now are considered public? What costs will be associated with the changes in the law? All are on the minds of school administrators, board members and solicitors, and all will be answered in the series starting in March.

The first Web conference will offer members an overview of the new law and what changes will most affect school entities. The second will focus on what policy and procedural changes school entities may need to implement to fulfill the requirements of the law. The third conference will review the exceptions and definition changes that will affect public education most.

As big a victory [the] enactment of a new Pennsylvania open records law is for the media, wrote the Pittsburgh Tribune-Review in an editorial, the biggest winner is the public.

The new law ensures greater and easier access to public records, which means the public will be better able to monitor how taxpayer dollars are spent and the public’s business is conducted.

When the media acts as a “watchdog” on the public’s behalf by investigating allegations of wrongdoing by officials, the new law should help bring problems to light more quickly and more fully.

Perhaps nothing represents the truth of that sentiment more than Jan Murphy’s dogged efforts to uncover the spending shenanigans of the board of the Pennsylvania Higher Education Assistance Agency. After years of unconscionable stonewalling and legal obfuscation by the agency to keep its activities from public view, Murphy’s stories contributed powerfully to the fight for open records reform. To honor her persistence — and her results — the Pennsylvania Newspaper Association last fall awarded Murphy its highest honor, the Benjamin Franklin Award for Excellence.

Now, announces her paper, the Patriot-News of Harrisburg, Murphy’s reporting on PHEAA has earned a first-prize award for investigative reporting in the 2007 National Awards for Education Reporting presented by the National Education Writers Association.

The contest awards prizes in 18 categories and is the only independently judged education writing competition of its kind in the United States.

Murphy’s stories detailed how the student-aid agency spent more than $2.2 million on promotional giveaways over five years, the equivalent of 553 grants for students in state universities or 885 grants for those attending community colleges.

The waste included $3,392 for “gummy brains,” a novelty given to employees to promote the launch of a new “big brain” brand.

“This is all money that could have gone to student grants,” Murphy said. “Time will tell how serious PHEAA is about fiscal reform.

“The public deserves to know how their money is being spent,” she said.

Now hopefully, it will have a better chance.

Thomas Hylton, who won the 1990 Pulitzer Prize for his editorials in the Pottstown Mercury, recently wrote a piece in the Philadelphia Inquirer in which he argues that one critical – and relatively simple – next step in government transparency is to put public information on the web in formats that are easy to access and easy to understand. He makes the telling point that, while the burden of proof may have shifted, the burden of getting the records has not.

After years of promising more transparency in government, Pennsylvania has adopted an open-records law that makes it easier for citizens to obtain documents from state and local agencies. Unfortunately, the legislation still places the burden on individual citizens to acquire information rather than use the Internet to bring information to the people.

When local governments must reveal to the world what they’re doing, they may be inspired to do it better.

Hylton’s thoughts echoed those of readers Gordon Davis Jr. and Robert Basile, who posted on this site last November:

. . . .The truth is, wrote Davis, that most of those involved in the discussion on open records seem to have little understanding of the role computing should play in providing access to government records. Today, computer storage is so plentiful and inexpensive that for purposes of this discussion, it might as well be considered free and infinite. It is far less expensive than paper. All government records should be stored permanently (indefinitely) on electronic media. . . . .There is no need to create a large state bureaucracy that exists to send requested documents attached to emails, or even worse, print them out and snail mail them to those requesting information. The public (and yes, even the media) is perfectly capable of finding information as long as it is stored in a well constructed database along with appropriate search technology (think Google).

Please associate me with Gordon’s comments on our legislators’ computer literacy. The debate on open records seems to be going on as though the constitutional convention in Philly were still in session. The quill is gone and the computer has replaced it. But our laws haven’t kept pace with our technology. Put it on the internet with a search engine and let the chips fall where they will. Unfortunately our legislators do know enough about technology to avoid such a transparent environment. And that is why we do need a revision to the current open records law. And that is why the revision needs to be crafted with today’s technology as Gordon as so well articulated.

Other ideas?

Several people and organizations have asked questions and made suggestions about what happens now – that the opens record law as passed but will not go into effect until January 1, 2009. This is a very important question – both in term of making sure that a law it took us 50 years to get is respected and effectively enforced and of understanding is public ramifications. This is a discussion that needs your input, so let us know what you think about all aspects – what foresee, what you think should be done, what you think this blog should do now that the law is passed, etc.

Some thoughts and questions of others:

• A few days ago, for example, the Pennsylvania Newspaper Association announced to its members: “In the two weeks that have passed since Senate Bill 1, now known as Act 3, was signed into law, we’ve had ample opportunity to ponder the abundance of state records and programs that might bear investigation someday under a right-to-know request, as the House and Senate Appropriations Committees grill the various department secretaries and heads of state agencies in the exercise known as budget hearings.

We’re eagerly awaiting the news of the Governor’s appointment of the first Executive Director of the Office of Open Records, and will certainly share our thoughts on progress as the office is established.

• Rick Blum wrote to remind us that the law “will not enforce itself” and to suggest that we continue to keep our eye on its implementation and oversight:

Congratulations on a strong step forward for open government in Pennsylvania. The new law, however, will not enforce itself. Ensuring the new law is followed as it was intended will require public oversight and watchdogging how it gets implemented. Consider carrying on the blog in a new form or providing some ongoing analysis from a public perspective of how the new law is being followed. It surely will not be the last word on open government in Pennsylvania.

How will open records and other reform efforts affect the upcoming elections?

• Kori Walter of The Intelligencer discusses how such issues effected elections in the recent past:

House Majority Leader Bill DeWeese (D-Greene) is a poster child for how competitive elections can lead to better lawmaking.
DeWeese had been one of the biggest opponents of openness in state government.

He could afford to thumb his nose at the public. His legislative district is drawn to make sure that he seldom faced a serious election opponent.

And if a bona fide challenger steps up, organized labor and other contributors can turn on the campaign cash spigot to help DeWeese financially drown out his opponent because Pennsylvania has no limits on campaign contributions.

Then in 2006, DeWeese got the scare of his political life.

He came within 1,000 votes of being tossed out of office due to public outrage over the 2005 legislative pay raise fiasco.

The competitive election, DeWeese admits, was a factor in his jumping on a crowded reform bandwagon and led to his joining the push for an enhanced open records law.

• The Intelligencer also discusses how the law’s passage might affect at least on upcoming race:

On the heels of passage of Pennsylvania’s first open records law in decades, which state Rep. Timothy Mahoney began working on when he first took office a little more than a year ago, Mahoney officially announced Friday he will seek a second term.

“On my first day, I spoke of getting an open records law that the people of Pennsylvania have been expecting for many years and that day has arrived,” said Mahoney (D-South Union).

• The Beaver County Times turns its attention to PHEAA: Credibility is like a savings account. The good will you build up comes in handy when things turn sour.

That applies to public institutions as well as individuals.

It’s too bad the Pennsylvania Higher Education Assistance Agency failed to grasp that point.

The state agency says that poorly performing markets, including sub-prime mortgages and bonds, are threatening its ability to provide grants and loans to potential college students. PHEAA officials met Thursday with state and federal lawmakers and educational and financial leaders to push their cause.

This from the same agency that has spent hundreds of thousands of dollars on luxury retreats for its board members and high-ranking officials and handed out millions of dollars in employee bonuses since 2004.

Because of its mission, PHEAA’s request should receive consideration. Not for the agency’s sake, though, but for the people it is supposed to be serving. PHEAA handed out 162,502 awards in 2006-07, with students receiving an average of $3,135. The focus must be on doing what it best for them.

One thing is certain. The agency had better not hand out performance bonuses or luxury retreats for years to come.