New Open Records Law Seen As Key To Public Access
HARRISBURG, Pa. (AP) - The Pennsylvania Department of Transportation's list of dangerous roads and intersections is an official secret, shielded from the public because of loopholes in the state's Right-to-Know Law.
In 2006, a Commonwealth Court panel upheld PennDOT's refusal to turn over a partial list to a Pittsburgh television station, saying it had failed to prove that the information was sufficiently connected to an account, contract, voucher or decision - categories in the law that define what is a public record.
"The situation is a Catch-22 for requesters in that the agencies and courts hold them to an impossible standard - prove there is a connection, but you cannot have the records that will enable you to do so,'' said Gayle Sproul, a media lawyer who represented Hearst-Argyle Television Stations, WTAE's owner, in the case.
Public-access advocates hope that widely shared frustration will subside after Jan. 1, when an overhaul of the state's Right-to- Know Law takes effect. The changes are expected to dramatically expand what people can find out about what goes on behind the scenes of the state and local governments.
The new Right-to-Know Law will repeal the 52-year-old original, long regarded as one of the nation's weakest.
No longer will journalists, activists and other citizens interested in mining government records have to cross their fingers and hope the document they want fits into one of a halfdozen narrow categories. Nor will they have to go court - and probably need to hire a lawyer - to challenge an agency's refusal to turn over a record.
The new law is built on the presumption that most government records are open. It also places on public agencies - from state bureaucracies to county governments and local school districts - the legal burden of showing why a record should be withheld, instead of forcing requesters to establish why it should be made public.
"This is really a change in the culture of governance in Pennsylvania,'' said Barry Kauffman, director of Pennsylvania Common Cause. "In too many cases, employees and officials of government agencies had an attitude that they own the government records instead of just being the caretakers of the government records.''
Those whose requests are denied, in most cases, will be able to appeal directly to a new, nonjudicial agency - the Office of Open Records - whose director has a track record as an advocate of public access.
"I think we're going to be amazed at what's available to us now,'' said Cate Barron, managing editor of The Patriot-News in Harrisburg, which plans to aggressively test the law throughout the coming year.
Teri Henning, general counsel for the Pennsylvania Newspaper Association, which spearheaded lobbying for the new law, said the hope "is that, over time, these fundamental changes will create a culture of openness in Pennsylvania government.''
That spirit of openness is tempered in the law by a list of 30 wide-ranging exceptions. They are tailored to respond to such concerns as personal privacy, public safety and internal deliberations by public officials. Lawyers familiar with the law, however, agree the practical effect of many will likely be settled by the courts.
The exceptions, which make up about one-fifth of the law, are "very wordy, very detailed and dense, filled with what I will call, kindly, mumbo jumbo,'' said Sproul, who also is the president of the Pennsylvania Freedom of Information Coalition. "That in itself is an impediment to getting public records.''
The law also expands access to government contracts: Private businesses that do business with state and local governments are required to make some of their records available to the public, and the state Treasury Department now maintains a public database of state contracts worth $5,000 or more on its Web site.
Access to public records is of natural interest to people from many walks of life - reporters, taxpayer activists, genealogists and librarians, to name a few - and the effect of the new law will be widely felt.
It covers all of state government, including - to a limited extent - the Legislature and the state's judicial system, both previously exempt. It covers an array of state-affiliated entities, including community colleges, the 14 state-owned universities in the State System of Higher Education and the Pennsylvania Interscholastic Athletic Association.
The state-related universities - Penn State, Pittsburgh, Temple and Lincoln - are generally exempt, but required to issue annual financial reports that include their highest 25 employee salaries.
Local agencies covered by the law include counties, boroughs, townships and school districts, as well as charter schools, vocational schools and intermediate units.
Openness "serves the interests of not only the press, but everybody,'' said Mike Leary, The Philadelphia Inquirer's managing editor and a former Inquirer foreign correspondent who covered the collapse of communism in eastern Europe in the late '80s and early '90s.
"The great strength of democracy is openness in government,'' Leary said.
By now, every agency should have designated an open-records officer to oversee compliance, adopted a policy for managing its records and briefed employees on how to handle records requests.
No one is predicting a flawless implementation.
"There's going to be confusion at the beginning ... from citizens, from public officials and from members of the media,'' said Terry Mutchler, the lawyer and former reporter Gov. Ed Rendell appointed to a six-year term as director of the openrecords office.
Many observers predict a spike in records requests - and appeals to Mutchler's office - in early 2009 as Pennsylvanians test their access under the new law. That will likely be followed by a gradual return to a more normal pace.
"After five years, we'll forget it was ever such a big deal,'' said Emily Leader, a lawyer for the Pennsylvania School Boards Association, which speaks for the state's 501 school districts.
"I think people will find less resistance'' from officials, said Craig Staudenmaier, a Harrisburg lawyer who represented The Associated Press, The Patriot News and WTAE in a successful 19-month legal battle with the Pennsylvania Higher Education Assistance Agency to gain access to records of junkets for its board members.
Mutchler, who is in the process of hiring six staff lawyers to help her handle an expected deluge of appeals early next year, has been working with associations representing county commissioners, township supervisors and school boards. Since June, she has participated in more than 70 workshops around the state to help them prepare.
At some of those sessions, questions from the audience revealed concerns about certain issues - particularly the status of e-mails.
The new law defines a record as "information, regardless of physical form or characteristics, that documents a transaction or activity of an agency.'' That includes not only e-mails, but audio recordings, photos and even films.
"Here's the e-mail training,'' Mutchler told a Pennsylvania School Boards Association workshop in October. "If you don't want to read it on Page One, don't put it in e-mail. If you're sending an e-mail, envision it on letterhead.''
One man wanted to know how the law treats e-mail conversations between legislators and their constituents.
"Interestingly enough, and perhaps not shocking, the Legislature has exempted that,'' she replied, drawing laughter.
Access advocates hope that the new law will open records like PennDOT's hazardous-sites list to public scrutiny. The public interest seemed clear in the WTAE case, given the station's unchallenged claim that the list is submitted to the Federal Highway Administration to get funding for design work and repairs to make the sites safer.
PennDOT spokesman Rich Kirkpatrick said the lists are kept confidential because the rankings can be misleading and state law bars such information from being used in legal claims against the state.
"If we release the data,'' Kirkpatrick said, "we waive that protection.''
Asked if PennDOT plans to withhold the information after the new law takes effect, he said, "I can't speculate.''