Proposal would reinforce legislation’s original intent

When the state’s Right-to-Know Law went into effect Jan. 1, 2009, a significant paradigm shifted: presumption of access.

Every record of a government agency became presumed public, and the burden of proof to show why a record is not public was shifted to the agencies. Prior to that law, it was the opposite, said Melissa Melewsky, media law council for the Pennsylvania NewsMedia Association.

“It didn’t make any sense; government had all the information and the public had all the burden, and the Legislature recognized that,” she said.

However, courts have “steered it in a different direction,” Melewsky said, causing the public to give a legal argument for a record to be public, and address each of the legal arguments raised by an agency, she said.

A proposed bill sponsored by state Sen. Dominic Pileggi, R-Chester, would reinforce the original intent of the law.

The bill would ensure “burdens lie where they’re intended to lie – not with the public,” Melewsky said.

If passed, this will be the first amendment to be enacted into law. Many proposed changes have been attempted before, unsuccessfully.

The bill covers a number of areas. For one, it would provide access to police department records of state-related institutions, although not the institutions themselves, such as Penn State, Pittsburgh, Temple and Lincoln universities.

Access to those police department records still would be subject to the criminal investigation exemptions of the law, which is problematic, Melewsky said.

“It’s a step in the right direction, but one of the big things we’d like to see is the narrowing of the criminal investigations (exemptions), which is a barrier to access,” she said.

In Pennsylvania, once a record is deemed investigatory, it is closed from public access forever, she said. In many other states, once an investigation is closed, some information becomes public, but not here.

Records would also be available in a more accessible, database format. It would enable the public to access and use agency databases as agencies do. Right now, agencies give information via electronic page copies, which make it highly difficult to accurately determine totals – but it could be done with a database, she said.

“The public should be able to use it like the government does,” she said. “We believe it’s already clear, but the text of the law needs to be clarified. (This Senate bill) would take a step in that direction.”

The bill would ease time constraints, allowing the Office of Open Records more time to respond to requests.

“This is a good thing. If they can get more done, give them more flexibility,” Melewsky said.

As agencies are often bombarded with Right-to-Know requests from commercial entities who re-sell the information, the bill would allow a commercial fee structure for this use, she said, but there is a “robust exemption for the press because how the press uses records is not commercial in nature,” she said.

However, Melewsky said the bill also would threaten a portion of the law and would “really destroy public access to government contractor records.”

The records of a private contractor who does work directly related to government functions are open, but the bill would change that to only the contract.

“The bill as proposed would gut access to third-party contractor records. We oppose that provision because the public needs to have access to contractor records when contractors step into the shoes of government. You can’t contract away the public’s right to know,” Melewsky said.

“That can’t be the result, because then government agencies can farm out accountability.”