passopenrecords.org

Leslie Graves interviewed Tim Potts of Democracy Rising PA as part of her series of interviews with “Sunshine Activists” from around the nation.

Excerpts below. To read the entire interview, visit Leslie’s site.

• Charles Davis of the National Freedom of Information Coalition has talked about having “a FOI moment”. Have you had “a FOI moment” and can you describe it?

In 2004, I learned that both Pennsylvania’s General Assembly and its Supreme Court had exempted their two branches of government from the state’s already awful open records law. We are the only state in the nation where that has occurred. As a result there is literally no way for a citizen to enforce requests for information from the two branches of government. It’s as though they believe Pennsylvania has three governments rather than one government with three branches. That realization was a key factor in my decision to get active in the movement to establish in Pennsylvania the highest standards of public integrity in America.

• What is the worst (or funniest or most obstructionist or most outrageous) reply you’ve ever received?

The PA House of Representatives claims it does not have a database of legislators, staff and the amount of compensation reported to the IRS for 2006. They also remind me that the legislature has exempted itself from our open records law (we’re the only state in America whose legislature and judiciary have exempted themselves); that they may allow us to see some records if we travel to Harrisburg to examine them in their offices; and that if we want copies, they will charge us 50 cents per page for the documents they’re willing to let us have. There are other documents that we may see but may not copy in any way. We have been waiting two months for an appointment to travel to Harrisburg for this purpose.

• How quickly do you generally receive replies to a request?

Occasionally a few days. Usually never.

• About how many open records requests have you filed?

20-25

Over the next couple of days, unless events overtake us — which well they might — we will run some different takes on the current state of the open-records debate as it is playing out in the legislature on the shifting sands beneath Senate Bill 1.

Please join in the discussion.

We lead off with an opinion piece from Tim Williams, president of the Pennsylvania Newspaper Association:

Pennsylvania is on the verge of something remarkable. For the first time in many years, the state open records law, called the Right to Know Law, is close to being significantly improved.

Pennsylvania’s current open records law is widely regarded as one of the worst in the country. In a 2002 survey by the Better Government Association, it ranked 48th of the 50 states. But that may be about to change. On Wednesday, January 30th, the State Senate passed, in a 50-0 vote, Senate Bill 1, which would significantly improve access to government records. Next week, the House is expected to consider the Bill.

What would a new law mean for the average citizen? It depends. If you care about government spending and accountability, it could mean a lot.

The bill fundamentally changes the structure of Pennsylvania’s Right to Know Law. It begins with the presumption that state and local agency records are open for public inspection and places the burden on a government agency denying access. For the first time since the Right to Know Law was passed in 1957, it will include the General Assembly and will give citizens the ability to appeal open records disputes to an administrative agency, the Office of Open Records, without the need to file a court action.

In August of 2006, the Pennsylvania Newspaper Association launched Brighter Pennsylvania, a legislative initiative to improve Pennsylvania’s access laws. As part of the initiative, the PNA identified the following items as “must-haves” for open records reform:

Tim Williams
President, PNA

1. Politics makes strange bedfellows. The Pennsylvania Association of Township Supervisors and the Pennsylvania Newspaper Association are both publicly calling for the enactment of the version Senate Bill 1 that the Senate unanimously approved on January 30th. That seemed highly unlikely during the past year, as the open-records bill went through an arduous evolution – with PNA consistently calling for more openness and the expansion of public access, while PSATS expressed its concerns about burdening local officials and safeguarding constituents’ privacy.

Neither organization argues that it got everything it wanted in the current incarnation of SB 1, but each has expressed satisfaction with the process and with its ability to participate, to be heard and to be taken seriously. In the end, both Doug Hill, the executive director of PSATS, and Tim Williams, the president of PNA, argued that the pros outweighed the cons, and both endorsed the bill.

2. Be careful what you wish for. Meanwhile, others from all across the political spectrum are lining up to have one more whack at SB 1 when the House takes it up again this week. The Pittsburgh Post-Gazette reports that even the time table is now in doubt – just two days after both the Speaker, Dennis O’Brien (R-Philadelphia), and the Majority Leader, Bill DeWeese (D-Greene), indicated the House would take up the bill on Wednesday, following Gov. Ed Rendell’s budget address tomorrow, and DeWeese predicted that passage would follow soon thereafter.

Pointing to “several critical flaws” in the bill, Barry Kauffman, the executive director of Common Cause, has urged the legislature to “stick with the job until they get it right this time” – words that were almost identical to those used by Speaker O’Brien at the PNA Government Affairs conference last week.

Among the flaws Kauffman cited are: (a) not having the legislature subject to the proposed Office of Open Records; (b) the questionable independence of the Office of Open Records in any event, since it would be under of Department of Community and Economic Development, which Kauffman fears would favor government agencies over private citizens; and (c) the danger that “nuisance fees” will be used to prevent true public access.

On the other hand, House Republicans are raising questions about how SB 1 treats such matters as: (a) 911 emergency call transcripts; (b) privacy issues and identity theft; and (c) correspondence from constituents.

SB 1 is not a perfect bill. But it is far better than anything this state has had before. There are things that I wish were different – access to autopsy records, for example, as well as the issues raised by Common Cause – but my worry is that, if we insist on reopening the process so we can try to get all the changes we want, the whole thing may unravel . . . and there are more than enough interest groups that would love to see that happen.

The process to date has led to significant improvements in the bill: the House applied the presumption — and the same burden of proof as for local agencies — to legislative records and financial records of the judiciary; the Senate removed the exemption on birth dates that the House had imposed; and the law does apply to past records. So, yes, let’s push for all the improvements we can get, if there us a chance to get them. But remember . . .

sometimes, as Voltaire said:

3. The perfect is the enemy of the good.

You can get a heck of a ride just trying to keep up with the open records bill. In fact, just when we thought we were almost home – with the Senate having passed Senate Bill 1 by a vote of 50 yeas and 0 nays and House set to vote in the next few days – Jan Murphy reports in the Harrisburg Patriot-News that sources tell her the bill faces a difficult time in the House. And the governor now appears to be playing a bit of wait and see on the bill as well.

Jan Murphy is a very good reporter. She received the Pennsylvania Newspaper Association’s Benjamin Franklin Award for Excellence for her extraordinary – and her extraordinarily persevering – coverage over several years of the Pennsylvania Higher Education Assistance Agency’s spending spree that led to huge changes at PHEAA and that provided significant momentum for open records reform across Pennsylvania. So when she says people are cautioning her that the current version of Senate Bill 1 is not a done deal, it is best to pay attention.

But despair is no more useful an emotion than euphoria. We can still get a good bill next week. There is momentum. The Senate has committed that body to reform, and Dominic Pileggi (R-Delaware), the majority leader and the bill’s lead sponsor, has given us the best chance we have seen in a long time to bring our state into the 21st century on this issue.

And at yesterday’s Government Affairs Conference sponsored by the PNA, House Majority Bill DeWeese (D-Greene), said what he has said before on reform: “We heard the electorate in 2006.”

DeWeese went on to say that “Open Records should be concluded in a matter of days, not months” and that he looked for the House to pass, “in essence what the senate passed with a little tweaking.”

It’s the last two words, of course, that get people worried, as does the statement of DeWeese’s Republican counterpart, Rep. Sam Smith (R-Jefferson), that the House will want to review the “two new amendments” the Senate put this week.

We can’t kid ourselves. There are powerful players behind the scenes who want to take this bill down . . . probably not by killing it – which would not play well at this stage – but by watering it down, by adding modifiers to the language – death by a thousand cuts.

So keep the pressure on.

Both DeWeese and Speaker Dennis O’Brien indicated that the House will take up the bill right after the Governor Ed Rendell’s budget address on Tuesday.

As Sen. John Wozniak (D-Cambria) told the Pittsburgh Post-Gazette, “We should have done this a year and a half ago. . . .If we ever needed to raise the trust level between us and the public, it’s now.”

His words were echoed by Sen. Lisa Baker (R-Luzerne): “Greater access to these public records will ensure that government is accountable to state residents.”

Note: I clearly was wrong yesterday when I wrote that the House only got an up-or-down vote on the bill once it came back from the Senate. Does anyone know the apparently arcane rules that govern the process?

No, that’s not my Super Bowl prediction. That was the final vote in the Senate yesterday in favor of Senate Bill 1, the overhaul of Pennsylvania’s antiquated open records law. It has been a long haul as well as an overhaul, and the process, which began a year ago, is not over yet. The House still needs to vote on the bill, and then Gov. Ed Rendell must sign it into law.

The House vote is an up or down vote – they cannot amend yesterday’s version of Senate Bill 1. House Majority Leader Bill DeWeese (D-Greene) has said he does not know when that body will vote.

And House leaders are close-lipped about the bills chances.
“We’ve really got to take a look at the legislation that passed the Senate – see exactly what they did, what changes they made – because it does affect more than just the House and Senate,” said Steve Miskin, spokesman for House Minority Leader Sam Smith (R-Jefferson). “This bill will actually affect real Pennsylvanians.”

The governor has indicated that he will sign the bill when it reaches his desk.

“Pennsylvania needs a stronger open records law, because transparency builds trust in government,” said the bill’s sponsor, Senate Majority Leader Dominic Pileggi (R-Delaware). “A strong open records law is the foundation of true government reform.”

I agree with Senator Pileggi – and while there are things I had hoped to see in the bill that are not here – Pennsylvania has come a long way on this issue in a year. Much of the credit for that goes to Senator Pileggi, who made this his signature issue, and to members of his staff. Open records is not a particularly sexy topic to the public, but it is a critical issue to good government, and Pileggi was both out in front of it and open to suggestions. In particular, his decision last April to switch his position on the presumption of access was the key to bringing together a number of groups, including the Pennsylvania Newspaper Association, in support of Senate Bill 1. This was leadership at its best.

As ever, the arcane and obscure language of legislative bill writing will leave many future issues at the mercy of bureaucratic interpreters. But SB1 is a significant step forward. It:

• Creates the presumption of access
• Expands the definition of a public record
• Brings the legislature under the scope of the law
• Makes legislative and judicial financial records presumptively public
• Expands the definition of an agency
• Places the burden of proof for denying access on the agency
• Increases penalties for non-compliance.

The Senate also overturned two objectionable House provisions: one would have prevented access to dates of birth and the other would have exempted all existing records from the new law.

As Sen. Jim Ferlo (D-Allegheny), who had opposed weaker versions of SB1 and had earlier offered a strong bill of his own, told the AP: “We have a great new progressive bill, and the sunshine is shining a lot more clearly.”

I hope the House signs the bill when it next meets.

“It may not go as far as some folks think it should, but I think it goes a long way and I think it will be much easier for people to access information at the state and local level,” said Sen. Gerald J. LaValle (D-Rochester), who told The Beaver County Times of his own experiences “in the 1990s of just how stingy government officials can be with information.

“Gov. Tom Ridge’s administration had rejected LaValle’s request for an audit used to justify the roughly $200 million buyout of a firm in charge of the state’s auto-emissions testing program.

“LaValle recalled that the administration spent about $80,000 on the audit but refused to release it. The audit was never released because the courts sided with the administration.”

From Jan Murphy at the Patriot-News:

Senate passes open records legislation
by Jan Murphy,Of The Patriot-News
Wednesday January 30, 2008, 12:03 PM
With a unanimous vote, the state Senate approved a measure to strengthen the state’s 51-year-old open records law.

Senate Majority Leader Dominic Pileggi, R-Delaware County, the bill’s sponsor, said, “Pennsylvania needs a stronger open records law because transparency builds trust in government.”

The measure now goes to the House for consideration. Pileggi was “cautiously optimistic” the bill could be delivered to Gov. Ed Rendell’s desk by the week’s end. Rendell has pledged to sign it into law.

Here’s the body of a press release just issued by the PNA. I have removed contact information to help avoid spamming, but the if you’d like to download the release, click here.

PNA Urges Passage of Senate Bill 1

HARRISBURG, Pa., Jan. 30, 2008 — The Pennsylvania Newspaper Association urges the Legislature to pass Senate Bill 1 today saying the legislation will give state citizens far greater access to government documents.

The Senate and then the House are poised to vote on the open records bill today and Tim Williams, president of PNA, said passage of the measure will be historic and finally mean Pennsylvania does not hold the distinction of being one of the worst states when comparing access to government records.

“We thank legislators, especially Senate Majority Leader Dominic Pileggi, for their hard work and dedication on moving this important piece of legislation,” said Williams, “and now that it goes to the full Senate today and hopefully the House we ask members to continue the reform movement sweeping through the General Assembly and pass the bill.”

Among its provisions, the measure will provide greater access to legislative records; defines “public record” broadly; creates the presumption of access; puts the burden on denying access to records on the government agency; and creates the Office of Public Records.

Nearly two years ago, with its Brighter Pennsylvania Campaign, PNA set out to advocate for reforms related to public information. The passage of an open records bill would mean many of its goals have been met.

Just last year PNA launched a blog, passopenrecords.org, to call attention to the need to change the state’s open records law to provide greater access. The blog has provided a statewide forum for journalists and others to discuss the aspects surrounding the open records issue.

PNA will continue to be involved in the debate surrounding open records to provide citizens, government entities and journalists a better understanding of the issues.

###

The Associated Press reports that yesterday the Senate made several technical changes to the House version of Senate Bill 1, so the full body did not vote on the legislation as many had hoped. That vote is expected to take place today.

According to the AP: “While the chambers have disagreed over numerous aspects of the legislation, House Majority Leader Bill DeWeese (D-Greene) has said he believes a final agreement is possible this week.

“A House Republican spokesman said the Senate’s version still raises concerns over protection of privacy.”

It was not stipulated whose privacy was at risk.

Today is also the beginning of the Pennsylvania Newspaper Association’s two-day government affairs conference at the Hilton Hotel in Harrisburg. The conference features panel discussions by legislative leaders, journalists and, yes, even bloggers. If you are in the area, stop by.

The Senate on Monday readied a rewrite of Pennsylvania’s open records law for a vote as senators look for ways to compromise with a House version that passed six weeks ago.

The Senate Rules Committee approved an amended bill, 14-1, and set it up for a potential vote today by the full Senate. Sen. Vincent Fumo (D- Philadelphia) cast the dissenting vote.

House Majority Leader Bill DeWeese, D-Greene, expressed confidence yesterday that the chambers would send a final version to Gov. Ed Rendell for his signature this week.

In general, the Senate and House versions are designed to subject more records to public review and give citizens a better chance in court when challenging a government rejection of an open records request.

Leaders of both chambers say they are committed to an overhaul of Pennsylvania’s 50-year-old Right-to-Know Law, widely regarded as one of the nation’s weakest freedom-of-information laws.

However, the chambers have disagreed over various aspects of the bill, such as whether birth dates should be made public and whether people should get an edge in court when appealing a denial of a legislative or judicial record.

House and Senate leaders have been negotiating for more than a month to settle differences between open-records proposals from each chamber.

Some of the major changes in the latest version of the bill would:

• Keep dates of births on court documents and other records public.

• Allow courts to decide whether 911 recordings or transcripts should be public.

• Require lawmakers to make public any correspondence with a registered lobbyist.

• Create an Office of Open Records within the state Department of Community and Economic Development, with a director appointed by the governor to a six-year term.

• Make the effective date Dec. 31, 2008.

Sen. Richard Kasunic, D-Fayette County, said it was embarrassing for Pennsylvania to have one of the weakest laws in the nation regarding public access to government documents.

“What we are doing is moving toward the point of opening up records for all Pennsylvanians,” said Kasunic, who serves on the Rules Committee. “If everything is up and up as it should be, why shouldn’t it be open? Why should we hide anything?”

This is the week, and as we wait for the verdict on open records from our elected representatives, we sill have a lot of questions.

Here’s one: If almost everyone – at least publicly – now accepts that public records are presumed to be open unless they are subject to a specific exemption, shouldn’t the government clearly explain each of exclusions and exemptions written into law?

That seems obvious to the point of redundancy.

So why, then, are autopsies – which are open records under current law – closed under the pending bill?

As the Herald-Standard of Uniontown wrote a few days ago, “Autopsy records are currently open to the public, so why should the state take a backward step? We haven’t heard anyone articulate a good reason for keeping those records secret.”

And as the Patriot-News of Harrisburg wrote last month: Exempting autopsy records would “represent a 180-degree turn from existing law, under which autopsy reports are treated as open records, publicly available. Going backward on this would be a huge mistake. . . .While the argument is made that open autopsy reports would lead to their misuse, the fact is that they are open under existing law and there is virtually no record of misuse. This is a solution to a problem that doesn’t exist.

“Our authority on autopsy reports,” the paper noted, “is Patriot-News staff writer Pete Shellem, whose reporting has led to the release of four people serving life terms for crimes they did not commit. In a letter to the Pennsylvania Newspaper Association, Shellem wrote that ‘in each of those cases, one of the first things I looked at was the autopsy report.’”

So it is with arbitration hearing transcripts and awards.

As the Herald-Standard also pointed out: “the Pennsylvania State Education Association, the state’s largest teachers union, is behind the effort to lobby legislators to keep arbitration records private. The PSEA may be a powerful special interest group, but lawmakers should have enough backbone to know that when it comes to spending public money, every red cent should be accounted for.

“We fail to see what the PSEA fears by having such information available to the people who pay the bills.”

Same with dates of birth . . . and a host of other things in little print that nobody wants you to notice.

Stay tuned.