New open records law poses challenges for officials

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Local governments will face some challenges in complying with the state's new open records law set to go into effect Jan. 1.

Leo Dunn, legislative counsel of the Pennsylvania Open Records Office, told Lycoming-Sullivan Counties Boroughs Association members Wednesday that they should take steps to implement policies for handling requests for documents.

It will mean, he said, appointing an open records manager and advising staff members that the new law has taken effect.

Gov. Ed Rendell earlier this year signed into law Senate Bill 1 which overhauls the state's previous measures covering open records as a means of improving transparency in government.

Among the provisions of the new law are improved definitions of what constitutes public records and the recognition that they belong to the public.

The new law also puts the burden of proof on an agency for denying access to a document. Previously, that burden was placed on the citizen or requester to demonstrate access should be granted.

In addition, the new law also establishes the Office of Access, making it easier for citizens to appeal denials, and establishes penalties on agencies or individuals denying access.

"The biggest change is the presumption that all records are open to the public," Dunn said.

The big question that must be answered is whether a document constitutes a public record.

Financial records or any document with information containing activities conducted by an agency would fall in that category, he said.

That could include emails as well, although Dunn conceded that such communications may pose some sticky legal problems, at least at first.

"Email is going to be the hardest part to sort out," he said.

Two people using email to conduct government business, he said, would represent a public record.

Government agencies receiving requests for documents should follow certain protocols, Dunn said.

For example, all requests must receive a response from the agency within five business days.

If the request is denied, a letter must be sent to the requester explaining the denial.

The agency can make no decision within the five-day period, if it asks for a 30-day extension to further consider the request.

"You should always work with the requester and ask what it is they want," Dunn said.

Dunn made it clear that any official considering a request for a document should at the very least offer a response.

Certain records such as those covered under attorney-client privilege will remain exempt.