Open records law continues to draw proposals for revision
(EDITOR’S NOTE — Last of four parts on a survey of how local government agencies and school districts in Pennsylvania are responding to requests for public records under the state Right-to-Know Law.)
HARRISBURG — It’s been nearly a decade since state lawmakers completely rewrote the Pennsylvania Right-to-Know Law, making fundamental changes to what had widely been considered among the nation’s weakest legislation on access to government records.
The revised law has made a vast amount of information available to the public, substantially increased the workload for state courts and produced a number of proposals to amend it.
A look at some of what’s been under consideration.
RIGHT-TO-KNOW LAW OVERHAUL
The state Senate voted unanimously a year ago for Senate Bill 411 — designated by the phone number to reach information — and the proposal had a lengthy hearing this spring by the House State Government Committee.
The bill, written by the same (now former) state senator who sponsored the 2008 rewrite of the open records law, would clamp down drastically on inmate requests, expand the law to cover economic and industrial development authorities and cover campus police in the same way as municipal police departments.
The bill also would give agencies a bit more time to respond, codify into law court decisions that have given the Office of Open Records the power to make confidential reviews of records to resolve disputes and let agencies charge for information sought for commercial purposes.
The bill appears likely to die when the current two-year legislation session expires at the end of this month, but the State Government Committee chairman, Rep. Daryl Metcalfe, R-Butler, said his staff continues to work on the issue and he expects a fresh proposal to be introduced early next year.
DATES OF BIRTH, ADDRESSES
The state Supreme Court recently resolved a long-running legal dispute about privacy by ruling that disclosing certain information by government agencies violates privacy rights and can’t be done unless there is a public interest favoring disclosure.
That case involved a request to schools for names and addresses of all employees.
The Legislature also has considered several bills regarding the accessibility of names and addresses, proposals that are likely to die at the end of the month.
One would add “former or retired” to the category of law enforcement officers and judges whose addresses can be withheld. A bill would permit withholding phone numbers and email addresses, and add the immediate relatives of judges and police to the category. Another would permit agencies to black out all home addresses in all records. There’s also legislation to exclude the home addresses of all jurors.
Two lawmakers have written bills that would ban disclosure of dates of birth under the Right-to-Know Law, in one case proposing that violators be hit with a $500 fine and damages.
The current law allows governments to redact Social Security numbers when fulfilling Right-to-Know requests, but one proposal would make that mandatory.
Asked about Democratic Gov. Tom Wolf’s thoughts on changes to the Right-to-Know Law, a spokesman said he wants to see it apply more fully to the judicial and legislative branches of government.
The current law exempts many of the records kept and generated by the General Assembly and the state’s sprawling court system.
Wolf spokesman Jeff Sheridan said the governor also supports forcing the four state-related universities to disclose more under the open records law.
Sheridan says the administration isn’t currently offering details about the extent to which the law should be expanded.
The stalled Right-to-Know Law revisions include allowing governments to charge for requests that are deemed to be for commercial purposes, and at least three separate bills also would make that change. In two cases, the costs would be levied based on how much time it takes public employees to fulfill the request, in 15-minute increments.
The proposal has been opposed by Thomson Reuters, the parent company of the Westlaw online legal research service. In a letter to Metcalfe this spring, they called the fee proposal unfair and ambiguous. RELX Group, which operates LexisNexis, has also raised concerns.
The state association of township supervisors, on the other hand, calls requests for building permits and other documents the top complaint from its members. The association supports new fees for records intended for commercial uses. The supervisors argue that taxpayers shouldn’t have to subsidize marketing efforts by for-profit entities.
Inmates deluge the Department of Corrections with Right-to-Know Law requests, accounting for more than 1,000 of the 1,300 such inquiries the agency had fielded this year through the first week in October. Inmates also sprinkle inquiries throughout state and county government.
Those requests are often frivolous, and Senate Bill 411 generally would restrict inmate Right-to-Know Law requests to criminal records about their own case; institutional housing information; department policies; and the prisoners’ own financial, work, educational, tax, voting, licensing and disciplinary records.
Inmates filed more than 1,400 appeals to the Office of Open Records last year, nearly half the statewide total.
Some have warned that the proposed clampdown could remove an important safeguard from prisoners who have legitimate needs for information. Common Cause of Pennsylvania has warned the bill might prevent inmates from following their own children’s education or whatever business or property interests they still have outside prison walls.
The Pennsylvania NewsMedia Association supports loosening provisions in the Right-to-Know Law that give government offices considerable power to turn down requests.
They’re known as exceptions, because they are exceptions to the general rule that records should be made public. The exceptions are for criminal investigations, noncriminal investigations and predecisional deliberations.
The association says the criminal investigation exception has made access to basic police reports very difficult, and the noncriminal investigation exception has been used to shield from public view the final results of agency probes.
Association attorney Melissa Melewsky says the predecisional deliberations exception is one of the most common reason people are denied records, and it’s been used by agencies to prevent people from learning critical details about how and why decisions are made.
Former state Senate Republican leader Dominic Pileggi, who sponsored the 2008 version of the law as well as the stalled bill to revise it, said changing the exceptions is a good idea but probably not politically palatable.
No one wants to impede an active investigation, he said, but the exceptions often are overused.
“There are many investigations that are closed and never really amounted to what most people would consider an investigation, but that reason is still asserted for not handing over the record,” Pileggi said.
A new law was enacted in May that prevents the release of most names, phone numbers and addresses of people who call 911 for help.
There’s an exception in cases where a judge or a 911 center decides there’s a greater public interest in disclosure.
Despite the change, people still can obtain the block where incidents occur, or the nearest intersection or mile marker.
OFFICE OF OPEN RECORDS
The Senate-passed Right-to-Know Law revisions bill would remove the open records office from the Department of Community and Economic Development, a change designed to enhance its independence. The bill also would make explicit that the office can order an agency to produce disputed records to help determine whether it qualifies as a public record or not.
The proposal also would give the office a bit more time to handle appeals. People would get 20 days, up from 15, to decide whether to appeal after a request has been denied.
The Right-to-Know Law applies to the 14 schools in the State System of Higher Education, but the four so-called “state-related” universities are required to make much less disclosure. There are bills pending in both chambers that would expand the financial information that must be reported by the four schools: Penn State, Temple, Lincoln and Pitt.
PUBLIC UNION BARGAINING
The state Senate last year passed a measure to require that the public be notified of government union contract agreements before they are approved. That legislation is pending in the House, along with two other similar proposals.