Pennsylvania considers changes to landmark public access law

Associated Press

HARRISBURG, Pa. (AP) – Pennsylvania’s open records law has been hailed as a major success since its current version came into being six years ago, but some argue it’s time to pop the hood and tinker with the landmark legislation.

The law has kept the courts busy, and the Office of Open Records that it established has made about 11,000 rulings in cases where agencies have turned down requests for government records. There are at least seven bills pending in the Legislature to amend the Right-to-Know Law, among them a handful of proposals that worry open records advocates.

Pennsylvania had ranked among the worst states when it came to giving people access to government records and information, but then came the legislative overhaul that established a statewide open records office and created a presumption that most government documents are public.

“The Pennsylvania law has been tremendously successful,” said Terry Mutchler, who quit as Office of Open Records executive director in January. “Nobody could have imagined the literally hundreds of thousands of records that got released because of this rewrite that, five years ago, would have still been locked in a cabinet.”

The new version of the law seems to have produced a change in the attitude of public officials toward their records, said Sen. Dominic Pileggi, R-Delaware, who sponsored the 2009 law.

“The vast majority of elected officials now understand that government records should be easily accessible to citizens,” Pileggi said. “That’s a dramatic change in a very short period of time, and I think it’s led to other disclosure and transparency provisions to move forward, such as the posting of state contracts and posting of financial information about the state.”

But the experience of the past six years, and particularly a large and growing body of court rulings, agency decisions and open records office appeals, has also generated some concerns there are increasing limits on what people can obtain.

“I think they have narrowed access, and I think it’s a little unfortunate,” said Craig Staudenmaier, a Harrisburg lawyer who specializes in the Right-to-Know Law. “I think they’ve narrowed it a little more than the Legislature intended.”

A proposal that would have made a number of amendments to the law, introduced by Pileggi, died in the Legislature last year, but he has returned with a new proposal in 2015. Staudenmaier said there are elements of Pileggi’s bill that would result in less access for the public.

Among other things, Pileggi’s bill would impose new restrictions on open records requests by prison inmates, give explicit authority for the Office of Open Records to conduct private reviews of disputed records before deciding if they should be made public, specify the information from 911 calls that should be made public and apply the law fully to the Pennsylvania Interscholastic Athletic Association.

The Department of Corrections says that 76 percent of the 5,321 Right-to-Know Law requests it has fielded since the start of 2013 were from inmates.

In a separate bill, Pileggi would require more disclosure by the state’s four “state-related” universities – Penn State, Pitt, Lincoln and Temple – but would not fully subject them to the Right-to-Know Law.

Other proposals pending in the Legislature would require agencies to black out all Social Security numbers from any records they release, make it illegal to disclose anyone’s birth date if it was obtained through the Right-to-Know Law, ban release of birth dates altogether and let agencies charge search and review fees for requests made for commercial purposes.

“One thing we did not expect was that by casting the law the way it is, it would open up for fishing expeditions of a couple types,” said Doug Hill with the County Commissioners Association of Pennsylvania. “It’s consumed a lot of time. The philosophical question is, should the taxpayers pay for that or should the people who are very clearly going to be making money from the records they’re collecting pay a larger share?”

Rep. Kate Harper, R-Montgomery, has proposed a legislative study to examine how much the Right-to-Know Law is costing government, responding to reports that small localities can sometimes be overwhelmed, and that agencies such as Corrections are flooded with requests that can be harassing or frivolous.

Corinna Vecsey Wilson, executive director of the Pennsylvania Freedom of Information Coalition, said what the law most needs is more robust enforcement mechanisms.

“We don’t have meaningful penalties, we don’t have meaningful attorneys’ fees provisions and standards for awarding them,” Wilson said. “Those things we know, from history, work.”

Staudenmaier said the law’s most problematic elements, for people seeking records, have been exceptions for information about predecisional deliberations, criminal and noncriminal investigatory material, and personal security. But Pileggi said tinkering with those exceptions are a challenge.

“I’d like to continue to work on that, but I don’t think we’ll get agreement or consensus in time to include it in this bill,” he said.

Many of the state’s open records advocates are also watching a court case about leadership in the Office of Open Records that was argued a few days ago in a Harrisburg courtroom.

An aide to Pileggi, Erik Arneson, is suing Gov. Tom Wolf over Wolf’s decision to fire him as the office’s executive director shortly after being sworn in as governor. Arneson was named to the job by the Democratic governor’s Republican predecessor, Tom Corbett, in the waning days of his administration.

Arneson has argued the office, and its chief, need to be independent of the executive branch, where much of the office’s caseload originates. Wolf said Arneson’s appointment lacked transparency.

Copyright 2015 The Associated Press.