By Kim de Bourbon
Pennsylvania Freedom of Information Coalition
You have a right to know what your local and state governments are doing. We need a law that makes that obvious.
Pennsylvania has a “Right to Know” law, written in 1957 and revised in 2002, that determines public access to local and state agency documents and information. It has deficiencies, however. So many deficiencies that national government watchdog organizations have consistently rated Pennsylvania as having among the worst open records laws in the country.
The main deficiency is this: The law does not start with the presumption that government records are public records and that citizens are entitled to see them. Instead, it defines the concept of “public record” very narrowly to include only those documents that are an “account, voucher or contract” or a “minute, order or decision.” This omits a wide range of information that should be open to the public, including studies, reports, plans and databases – none of which are covered under the current law.
This is how the Pennsylvania Department of Transportation can choose not to release studies on dangerous intersections or safety inspection reports on bridges. And how state agencies can keep secret policy manuals that outline how complaints are to be investigated. And how municipal governments and school boards can withhold project plans and studies until after they are done deals.
Another egregious deficiency is that our state legislature – the state House and Senate – is not subject to the Right to Know Law. Somehow, somewhere along the way, the General Assembly decided to exempt itself from the law, as though they were a private business and not our publicly elected agents. And so the records of our state government – including the legislature’s financial records – are not open for public inspection, according to the law.
That law needs to change. The government belongs to all of us, after all, and the records our government holds, with some exceptions, should belong to us as well.
The General Assembly is working right now to write a new law, attempting to make good on a promise to strengthen your “right to know.” Bills before the state House of Representatives and the state Senate are expected to be debated very soon: Senate Bill 1 and House Bill 443. The bills are the result of promises made when legislators were sworn in this year, with politicians on both sides of the aisle pledging dedication to the concept of government transparency — a noble cause, indeed.
So there is reason to hope that at last, Pennsylvania may let the sun shine in and write a law that makes clear its citizens have the right to see and make copies of government records.
But there are some clouds darkening the horizon of hope. Bills that started out clearly stating the presumption that government records belong to the people have become overshadowed by weighty amendments listing a myriad of “exceptions.”
Mind you, all reasonable advocates of changing the law agree that the state needs to protect some information from public scrutiny. Private information such as personnel records disclosing medical, psychiatric or disability status should be safeguarded, as should the identities of confidential sources and other information key to police investigations. Sometimes the need for privacy simply outweighs the public’s right to know, and open-records advocates have acknowledged some 20 different categories of records that should be exempted.
But Pennsylvania’s public agencies have been allowed to operate in the dark for so long that many well-intentioned public servants are now living in fear that opening up their offices to more public inspection will overwhelm them with hardship. Special interests are rushing to Harrisburg to find a way to exempt their records from reform.
The amended version of HB 443, in particular, fails to deliver the openness legislators pledged to provide. While it begins with the much-coveted “presumption of access,” the intention to enforce the public’s right to know is defeated by page after page after page stuffed with exemptions and roadblocks to openness, including one provision that government agencies would not have to honor a request for information if the request was “burdensome,” or if they felt the person doing the requesting was harassing them. It also would make the new law applicable only to new records, not to anything already locked up in government file cabinets and databases.
The 21-page HB 443 amendment was rushed through the State Government Committee late in the evening, and released without a chance for either members or those with an interest in the issue to read and understand it. With no small sense of irony, this echoed another shadowy chapter of Pennsylvania legislative sleight-of-hand, the infamous pay raise which gave rise to calls for greater openness. Another reason, given the legislature’s reputation for secrecy, to object to HB 443. It has become a bad bill.
The Senate bill – SB 1 – holds more promise. It makes financial records of the legislative and judicial branch open, although it treats them separately from other agencies and establishes some different rules. It establishes an “Open Records Clearinghouse” that would mediate disputes, review appeals, and provide much-needed training on public access to state and local agencies.
There’s still some work to be done on SB 1. Like all legislative endeavors, compromise is the name of the game. Open-records advocates remain hopeful that SB1 can be fine-tuned to address the public’s most pressing concerns, and that this session of the General Assembly will not end before Pennsylvanians are given more access to their government.
The goal, after all, is to not to get so entangled in the underbrush of fear and political process that we can’t see the forest for a stranglehold of trees. Pennsylvania government needs to be more open, and now is the time to blaze a clear path for the public with a meaningful new “Right to Know” law.
The Pennsylvania Freedom of Information Coalition is a non-profit organization dedicated to helping citizens obtain public information from their local and state governments. Its website, www.openrecordspa.org, offers information and resources about the state’s Right to Know Law and Sunshine Act, as well as an interactive forum where members can post questions about government access.