Daily Review (Penn.): Finally, Pa. gets open records law with teeth

From The (Penn.) Daily Review (12/29/08): Pennsylvania’s new open-records law, which takes effect on Thursday, is the single greatest reform passed by the Legislature in the turbulent period since the pay raise fiasco of 2005. It has the potential to transform governance in Pennsylvania by making it much more transparent.

Residents of Bradford and Sullivan counties should benefit by the reform. We urge the elected officials and solicitors in the two counties to get up to speed quickly and be faithful to the spirit as well as the letter of the law.

In fact, local governments across Pennsylvania have begun to comply with a new open-records law by naming records officers to deal with public requests for information.

Legal experts for governments, news media and civic advocacy groups are prepared to grapple with the details of the new law. But for the public the most important thing about the new standard is what it says, generally: simply that government should be open to public scrutiny.

To that end the new law’s most important provision is sweeping. It reverses by 180 degrees the legal standard under which all governments in Pennsylvania have been allowed to operate for half a century.

The current (old) standard holds that only a few specific government records are open as a matter of routine, and that the legal burden for proving otherwise lies with the person or organization seeking the information. That alone has stood as a towering obstacle to governmental transparency because the cost of meeting that legal burden is prohibitive for most people.

The new standard holds that the vast majority of government records is presumed to be open, with a few specific exceptions primarily to protect personal privacy. The burden for proving that a requested record is not public, and should not be released, lies with the government entity that seeks to withhold the information.

Moreover, in order to preclude stonewalling, the law creates specific deadlines for governmental responses to record requests, and a new government office to expedite the resolution of disputed cases — thus saving money and time now spent on litigation. The new Office of Open Records already has demonstrated its independence by ruling against the Rendell administration’s proposed policy for redacting information from public records.

Though a big improvement, the law is not perfect. All one need do is look to a neighboring state to understand its shortcomings. Robert Freeman, executive director of the New York Committee on Open Government, told the Elmira Star-Gazette that the law is not a panacea. “It may be an improvement, but there are in my opinion lots of areas in which the law could have been drafted more effectively,” the veteran, respected expert said.

In the newspaper report, Mr. Freeman criticized a number of exceptions to disclosure in the Pennsylvania legislation that aren’t in New York law, including notes and working papers prepared by or for a public official or employee that are for personal use, such as telephone message slips.

Other exceptions Mr. Freeman noted that New York doesn’t have:

* Complaints submitted to an agency, work papers underlying an audit, draft minutes and other records. In disclosing complaints, New York agencies can withhold the name.

* Pennsylvania exempts performance evaluations and the employment application of someone not hired by an agency. In New York, some information on a performance evaluation and an employment application can be withheld, Freeman said.

* The Pennsylvania law states that it does not supersede or modify the public or nonpublic nature of a record established in federal or state law, by regulation or judicial order or decree. New York law covers exemptions under statutes but not agency regulations.

Nevertheless, as Pennsylvania governments comply with procedural requirements of the new law by appointing records officers, it is more important that governmental bodies resolve to comply with the spirit of the law. The new standard was crafted to move Pennsylvania from the dark ages of public records into the age of information. Public servants should honor that spirit, which not only will result in greater transparency but in greater public understanding of how government operates.