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Pa. justices give courts wide role in open records


August 21. 2013 11:49AM
MARK SCOLFORO Associated Press

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HARRISBURG — The Pennsylvania Supreme Court has endorsed wide authority for state courts to determine whether government records should be released publicly, a decision the chief justice warned would make requests more costly and add delays.


The court ruled 4-2 Tuesday in the matter of a Pittsburgh Tribune-Review reporter who had sought information about federal grant money spent by the Pennsylvania Emergency Management Agency.


The case involves the role of the Office of Open Records, an agency created when the Right-to-Know Law was overhauled five years ago. The majority said appeals of the office’s decisions that are taken to Commonwealth Court would not be confined to the existing record but can be supplemented.


“Now they can still count on that, or they can say no, thanks, we’re going to start this process over and have the parties give us everything,” said Office of Open Records director Terry Mutchler, whose agency was a party to the case. “The question in plain-speak terms is, ‘Is the Office of Open Records a warm-up or is it a real game?’”


Mutchler’s office has handled 7,000 cases, and about 500 have ended up in court.


The majority opinion by Justice Seamus McCaffery said there were several reasons to give Commonwealth Court — and county common pleas judges, where they are involved — the ability to gather more information. To do otherwise would give too much authority to appeals officers who aren’t necessarily required to hold hearings, take evidence or issue written decisions.


Chief Justice Ronald Castille, in a dissent, said he couldn’t recall another law that produced “so much litigation involving seemingly overlooked foundational matters,” and chided the Legislature for not putting more thought into the appeals process.


Castille said lawmakers should revise and refine the Right-to-Know Law, a process that has already begun. If that does not happen, he said, and the Office of Open Records does not adopt a review process that protects legal rights, he might favor simply reversing all of the decisions that come to the court from the office.


The broader appeals court role was supported by the newspaper, said its lawyer, David Strassburger. He called Castille’s concerns “legitimate but overstated.”


“There’s only so much time to build a record before the Office of Open Records,” Strassburger said. “It’s not supposed to be a full-blown administrative opinion because we want to be in-and-out. I think that’s good, but all that means is you need a judge to take a look at it and make sure it’s right.”


Melissa Melewsky, a lawyer with the Pennsylvania NewsMedia Association, said the divided court seemed to agree that the law needed to be changed.


“Whether the negative impacts put forth by the OOR in this case come to fruition remain to be seen, but the justices gave the Legislature a lot to think about when it takes up proposed amendments” this year, she said.




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