New Open Records Law eases way for public access

THE RIGHT TO KNOW Gov. Rendell signs state bill that was in the works since 2006 into law on Thursday

Want to know how much your township’s road crew workers earn? How about what your school board members ate on the taxpayer’s dime at that recent convention?

While some state and local agencies readily obliged requests from constituents and the media, others did not. Some didn’t supply requested records because of ignorance of the 1957 Open Records Law; others did it out of spite.

An overhauled state Open Records Law signed into law Thursday by Gov. Ed Rendell will go into effect Jan. 1, making it easier for citizens to get those answers and for agencies to understand what records they must turn over.

The House passed the bill Feb. 11 and the Senate passed it the next day. It was in the works since 2006 after pressure was put on legislators following the middle-of-the-night legislative pay raise flap in 2005.

While Pennsylvanians have had the right to know certain public answers, there has long been a debate as to which records were public and which ones weren’t. Since a lot of technological advances have been made since 1957, the current law is antiquated and ambiguous. And even when it was clear a record was public, some officials still held back releasing information knowing the penalty for non-compliance was basically a slap on the wrist. And many citizens, unaware of the law and its requirements, simply accepted “no” as an answer and walked away.

That will change. Already, plans are in the works to have the state train government office employees to better understand the new law.

A new Office of Open Records will be created to hear disputes over requests for records denied by municipalities, school boards, county officials and the executive branch of state government. An independent director and staff will be charged to mediate disputes over what should be released.

For years, advocacy groups, including the Pennsylvania Newspaper Association, have lobbied state legislators to change the antiquated laws governing what is and isn’t an open record. Pennsylvania, which the Better Government Association ranked 48th out of 50 for having one of the weakest open-records laws in the nation, has put the burden on residents to prove the information they were requesting was public. Using only a narrow list of records deemed public, government entities have been able to deny many seemingly innocent requests because those items weren’t on the allowed list.

The new law turns the entire thing around and puts the onus on the government agency to prove the information isn’t public. Other than a list of 30 exceptions, the law presumes most records are public.

The bill that emerged, after numerous revisions the past 13 months, requires agencies to disclose all records beyond a list of 30 exceptions meant to protect society against harm and individuals against violations of their privacy. Among the records and information that remain off limits are the structure of a natural gas utility, medical records and Social Security numbers. It also prohibits release of the names, dates of birth and addresses of those ages 17 and under and has provisions to protect the elderly and domestic violence victims.

Wilkes-Barre attorney Ralph Kates has represented private citizens and The Times Leader in legal battles over open records. He said the new law has plenty of benefits that are long overdue, but chided representatives in Harrisburg for removing previously open records from the new law.

He cited several records that are available under the current Open Records Law that will be off-limits come 2009. Among them are civil service test scores, names of those who have donated money to public funds and applications filed by those seeking certain public positions that have already been reviewed by an elected board. For that last matter, Kates said that by taking applications out of the public realm, there’s no way to find out if the most qualified applicant truly got the job.

Kates said the new law isn’t all bad and credited legislators for “the very, very positive aspect” of opening up financial records of both the judicial and legislative branches to public review.

But overall, Kates said, officials “shouldn’t have taken away the rights the citizens already have. The idea is to expand public access, not to trade off rights to one document for the right to another.”

“We don’t feel like it’s an improper balance,” said Melissa Bevan Melewsky, media law counsel for Pennsylvania Newspaper Association.

She said she understands Kates’ concerns and has a few of her own, but overall the public “won more than we lost.”

Trying to get a perfect law was never going to happen, she said, so freedom of information activists did what they could to ensure the best possible law was passed. In some cases that meant losing some rights, including access to autopsy reports and photos. But in loss there was gain, and for the general public, that was an important victory.

State Sen. Lisa Baker, R-Lehman Township, one of 50 senators who unanimously supported the bill, said the proposal received overwhelming support for simple reasons.

“A strong Right-to-Know Law must pass three tests. It must make more records more easily accessible, it must encourage compliance, and it must include sufficient enforcement provisions. On all three counts, Senate Bill 1 passes with flying colors,” Baker said in an e-mailed statement.

While there are several keys to the new law that give teeth to residents, chief among them are the time agencies have to provide records and the penalties they face if they don’t meet the time or follow the law.

Five days will be given to provide requested records. The current law gives 10 days. And penalties for those that don’t comply have increased from up to $100 to up to $500 for lack of timeliness and up to $1,500 for bad-faith actions.

Anyone who believes his or her request was wrongfully denied can take the complaint to the Office of Open Records. That office has the power to levy financial penalties. Under current law, magisterial district judges have that power, though Kates said in all his years practicing law he has never seen a magistrate impose a penalty.

TO LEARN MORE

The Open Records Law can be found by logging on to: http://www.house.state.pa.us. Then using the “find legislation” feature, search for Bill Number S1.

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