Five Years After A Major Change, How Open Is Pennsylvania's Open Records Law?
Five years ago, Pennsylvania’s open records law was changed with the promise of ensuring more information would be more easily available to the public.
Records requests have gone up, and the new law is seen, overall, as a positive for the commonwealth, but open records officials and some people who use the law see room for improvement.
Before the change in the open records law, all records were presumed closed unless the requester could prove why they should be open. Now, with the new law, all records are presumed open unless the requestee can prove otherwise. This has resulted in a spike in requests from across the commonwealth.
“The new right-to-know law that went into effect in January first 2009 really pried open many of the state’s filing cabinets, and citizens were able to obtain hundreds of thousands of records that were off limits under the old law,” said Pennsylvania Office of Open Records head Terry Mutchler.
Those records can include contracts, budgets and payrolls, and it applies to state and local governments and government agencies. Most requests are for financial information.
“People want to know how much is the school superintendent making? How much did the township spend to plow the roads in overtime last year? What about email or cell phone records or contracts that government agencies are engaging in? Those are all the types of records (requests) that we see,” Mutchler said.
And the number of requests is spread throughout the commonwealth.
“The requests come from all quadrants of the state,” Mutchler said. “There’s not one particular area, I mean, obviously, you get a large amount from Pittsburgh and Philadelphia because they’re cities, but we see a broad swath of records being asked for.”
Open, But Not At Your Fingertips
Of course, just because there is a presumption of openness — that doesn’t mean such records are always easy to come by. Agencies can still deny requests. They just have to have reasons that are valid under the law. Under the law, those requesting the documents do have some recourse.
“When a citizen is denied access to a record by their government, they can come to us and the office, an attorney reviews the scenario and makes a determination as to whether or not the record is public,” said Mutchler.
That works well in theory, but some people who use the open records law say there are some weaknesses. Jim Parsons is assistant news director at WTAE-TV and a former reporter. He said the Office of Open Records itself is an improvement as it acts as a neutral arbiter.
“The problem is they have no teeth,” he said.
When a request is denied and an appeal filed, the open records office determines whether that record should, in fact, be made available. If the office determines it is an open record, all the agency has to do to keep it under wraps is file an appeal with the Court of Common Pleas.
“Then you’re in court,” said Parsons,”and now you know what — that agency has lawyers and you, as an individual — you don’t have access to lawyers necessarily. So that part of the new law hasn’t changed anything. In the old days, prior to the new right-to-know-law, if you really wanted to fight an agency over records you ended up in court, and guess what, it’s still the same today.”
The open records office has has handled about 500 cases in the courts since 2008. Aside from outright denials, there are other ways to restrict access to records.
“We’ve requested records here where we’ve gotten back nothing but black pages because they’ve redacted or blacked out information, and have cited reasons for that, which they are required to do,” Parsons said. “There are some exceptions under the law where they can black out information or redact information. They’re also allowed to charge you a copy fee, and they’re also allowed to charge you what’s called a research fee.”
Another challenge, according to Parsons, is how records are perceived. He said Pennsylvania is not at the top of the list when it comes to transparency; other states in which he’s worked, including Florida and Indiana, were more open.
“My experience in other states was that folks who worked at municipal level government, county level of government, city level of government, considered themselves stewards of records, not owners of records,” said Parsons. “In Pennsylvania, and I might be vastly generalizing this, but in Pennsylvania my experience has been in many many more cases, I’ve come across clerks at the local level who don’t consider themselves stewards of documents, but rather they own the documents and their job is to keep them secret and to hide them from the public.”
Mutchler, of the open records office, said the state is moving in the right direction after years of the records being mostly off limits. There have been more than 50,000 inquiries and the office has handled more than 8,500 appeals, some from the same people.
“There are some frequent flyers out there,” Mutchler said. “There are folks that continually use this law for the sole purpose of harassing public officials.”
And Mutchler said some have used the law for commercial purposes.
“We have folks that will come in and will file a Right to Know request to get, for example, any dog licenses that were issued so that they can start a marketing list for a kennel they’re going to create,” she said.
More Changes to the Law Pending
Mutchler said state legislators are considering tightening restrictions on commercial uses, and limiting the number of requests prison inmates can make. Currently, inmates account for about a third of records requests.
But for some, obtaining records is part of their job. Such is the case with WTAE investigative reporter Paul Van Osdol.
“I would say I request records at least a couple of times a week using the right to know law,” Van Osdol said. “This is everything from local school districts to the governor’s office, the attorney general’s office. It runs the gamut. It just depends on what you’re looking for.”
VanOsdol also said the law as it is now is an improvement, but he agreed it needs some work. There is a laundry list of exceptions that allow several entities to keep their records sealed. Most notably, the exemption that applies to state-related universities such as Pitt and Penn State.
“Even though hundreds of millions of taxpayer dollars go to these organizations, there is a tiny amount of information that these organizations are required to release to the public,” Van Osdol said. “That is a loophole that the Legislature should consider closing, and I know there’s been a lot of discussion about how that’s going to happen”
Bills pending in the state Legislature would amend the open records law and bring state-related agencies such as the universities under it. Parsons said there is hope the law will be improved this year.
“But there are some amendments that frankly would make the law even worse because there are lobbyists at work who are trying to make the right-to-know law, as bad as it already is, more restrictive,” Parsons said.
That includes a provision that could allow agencies to claim a records request is overly burdensome, skip over the Office of Open Records and go directly to court. Mutchler agreed changes are needed to make the law stronger.
“I think that as we look to redo the right-to-know law, I think it needs to be tightened, but I certainly don’t think it needs to be gutted,” she said. “Pennsylvania is now emerging as a leader in transparency in government, and we don’t want to take any steps backwards.”
The National Freedom of Information Coalition and the Better Government Association gives Pennsylvania an “F” when it comes to openness, though the state is not alone in that grade. Thirty-eight states also received failing grades. Only Nebraska and New Jersey scored above a "C," coming in with "B" grades.
But Mutchler said that since 2008, Pennsylvania went from a rank of 49th from the NFIC to ranks as high as 26 in some surveys.