House's open records bill still needs work, critics say

Sixty-Eight exceptions and 14 pages later, we still have a terrible open records law that excludes email (a document like any other), phone numbers calling in, disciplinary action of employees, and a host of other exceptions.


Dozens of changes were made this week to a 48-page House freedom of information bill, but critics say it still would do more harm than good if adopted into law.

The bill advanced toward a final vote in the House on Tuesday, but opponents — including the Pennsylvania Newspaper Association — warn that its broad language and numerous loopholes would foreclose access to many records that are currently available.

‘‘There were certain improvements, but it’s hard to even focus on them, because there are so many provisions that are contrary to access and contrary to open government,’‘ newspaper association lawyer Teri Henning said Friday. ‘‘This is worse than what we have today, and today we have one of the worst laws in the country.’‘

The bill would allow officials and agencies to keep secret their ‘‘correspondence and related records,’‘ all e-mails to and from governmental entities, and any records that existed and were kept private before the law takes effect.

Other provisions would prevent disclosure of phone numbers, birth dates, home addresses, 911 calls, autopsy records and many details of government workers’ disciplinary actions. Some of those categories are new exceptions for government records that are now public, or, in the case of the e-mail exception, would close off currently open records if they happen to exist in that format.

‘‘My overall impression, when we got done, is there may be too many exceptions to what are public records,’‘ said Rep. David J. Steil, R-Bucks, co-chairman of the Speaker’s Legislative Reform Commission.

He has not decided whether he will vote to send it to the Senate later this month, but said a competing Senate bill may be preferable.

‘‘There’s something wrong if everybody’s against it and only we like it,’‘ Steil said.

The current Right-to-Know Law requires only that an ‘‘account, voucher or contract,’‘ or a ‘‘minute, order or decision’‘ are available to the public, and five decades of case law have further trimmed what has to be disclosed.

The House bill would replace the Right-to-Know Law with the Open Records Act, establish an office to handle records disputes and flip the presumption so that government records are all available beyond a 14-page list of enumerated exceptions.

‘‘The flip of presumption is only valuable if you have very limited, narrow exceptions,’‘ said Tim Potts with Democracy Rising PA, which advocates changes to the law. ‘‘If it passed in this form, we’d have to consider asking the governor to veto it.’‘

The prime sponsor, Rep. Tim Mahoney, D-Fayette, opposes the e-mail exception but said it had overwhelming support in the House. He also said the nondisclosure of government ‘‘correspondence’‘ may be too broad.

‘‘I wanted it to be in there to protect the private citizen’s requests,’‘ he said. ‘‘Now if it’s expanding further than that, we’re probably going to have to address that when it goes to conference committee.’‘

The e-mail exception is ‘‘a gigantic loophole’‘ that eviscerates the bill’s impact, said Rep. Curt Schroder, R-Chester. A proposal on the floor to remove the e-mail exception was defeated 127-69.

‘‘The whole e-mail thing, I don’t see it as really being any different than a document coming in, written in pen and ink on a piece of paper. We should treat those documentsÂ…all the same and then judge them in the criteria in the bill as to whether they’re public or not,’‘ he said.

Some county and local government officials say they are concerned that the Office of Public Records, the agency the bill would establish under the State Ethics Commission to handle most records disputes, would wield too much power.

The office could end up determining which records are public and how long records must be retained, as well as setting fees and dictating administrative rules, said Doug Hill of the County Commissioners Association of Pennsylvania.

‘‘We think it’s written broadly enough [that] they can tell us what hours we have to be open or whether we have to have someone full-time to staff the office,’‘ he said.

The bill moving through the state Senate has fewer exceptions and better enforcement provisions, said Barry Kauffman with Common Cause of Pennsylvania. But he thinks the House bill offers a better appeals process and, unlike the Senate version, fully applies to the Legislature.

‘‘If we get the strong points of the House bill on process and coverage, and combine them with the strong points of the Senate bill on exceptions and enforcement, we’d have a pretty good law,’‘ he said.

Filed under:

What happened to the promises of reform?

It does not surprise me that the open records legislation has been gutted with many exceptions. Our arrogant legislators cannot bring themselves to lose any power. What happened to their promises of reform following the last election that deprived several entrenched legislators of their cushy jobs?

Do it right, right now

We, the people of Pennsylvania, should not allow the General Assembly to get away with passing a half-assed Open Records Law. I understand that almost anything is better than the current to Right-to-Know Law. However, if the legislature passes a law riddled with loopholes, it will be years until it goes back and fixes it.

What about other states?

40 + Other states have much better right to know laws and get along just fine. Not using their experience leads to either of two conclusions:

1. The legislators have plenty to hide from openess and are fighting it tooth and nail so that they stay in power.

2. The legislators are not willing to take the time and energy to talk to other states about what works and what does not. (This should be easy to do)

In either case, they are only going through the motions and should be held accountable.

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