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PLN editor Paul Wright quoted re Pennsylvania's "right to know" public records law

Tribune Review, Jan. 1, 2009.
PLN editor Paul Wright quoted re Pennsylvania's "right to know" public records law - Tribune Review 2009

Pennsylvania's open records law sets barriers

By Brad Bumsted and Debra Erdley
Tuesday, April 21, 2009

HARRISBURG -- Attorney Paul Wright of Seattle-based Prison Legal News was stunned when he filed a right-to-know request with the Pennsylvania Department of Corrections and was told the department didn't have the information he sought.

Wright wanted records on lawsuit settlements. The department responded that it isn't required to create records.

"I call it the 'Right to Know Nothing Law,' " Wright said of Pennsylvania's open records statute.

Pennsylvania's updated law was supposed to start an era of transparency Jan. 1, but it has raised troubling issues along the way.

On the upside, public interest is heightened, said Terry Mutchler, director of the Pennsylvania Office of Open Records, who is swamped with inquiries and appeals from denials. Mutchler said citizens, not journalists, have led the way, filing more than 90 percent of the nearly 300 pending appeals.

"It's a flood. It's a rush, and the law's not even four months old yet," Mutchler said.

The law establishes a presumption that government records are public records, and gives government the burden of proving otherwise. It means for the first time that government officials' e-mails, on a limited basis, can be released.

But some government officials are withholding information once freely dispensed and requiring written requests. Others have asked courts to determine exactly what requirements apply to e-mail.

Elam Herr of the Pennsylvania Association of Township Supervisors said one of his members appealed a ruling by Mutchler's office requiring disclosure of officials' e-mails, in order to get clarification about whether it applies when a public official sends e-mails involving public business on a personal computer.

"But that doesn't mean every e-mail in your personal computer is public," he said. "We knew when we were working on the law this would go to the courts."

When the Tribune-Review requested a Senate salary and Capital Budget expenditures -- information once readily available -- officials responded that written requests now are necessary.

Others relate similar experiences and frustrations.

"In the past, I was able to ask a question informally and get an answer, which expedited the process," said Joe Carduff, a Harrisburg campaign consultant. "Anymore now, it's 'You give us a written request,' " Carduff said.

After the initial five-day wait prescribed by law, a person requesting information is at the mercy of a politician or agency lawyer who can invoke a 30-day waiting period if the request "is the least bit problematic," Carduff said.

Although the law purports to require agencies to show why a record should not be released, in reality the person requesting the record shoulders the burden once a request is denied, Carduff said. After those 35 days, a citizen must decide whether to appeal to the new Office of Open records, and by then might not need the record, he said.

Senate Majority Leader Dominic Pileggi, a Delaware County Republican who sponsored the law, said he has heard that some local government agencies require formal requests for documents once treated as public records. He cited police accident reports and water and sewer records.

"There's nothing that prevents a greater level of disclosure than what is mandated by the Open Records law," Pileggi said. He said he expected a transition period of a year or so for such questions to arise.

Melissa Melewsky, media law counselor for the Pennsylvania Newspaper Association, which lobbied for the law, said she, too, has heard such complaints.

"It is inconsistent with the intent of the law. It doesn't require an agency to require a written request," she said.

Rep. Tim Mahoney, a proponent of the law, said it works well overall but might need tweaking to prevent agencies from delaying release of information on basic spending.

"Maybe we need to revisit it," he said.

Mutchler, a reporter-turned-lawyer, hopes problems will diminish as people become more familiar with the law.

"When it comes to open government laws, nothing surprises me. In Pennsylvania you've been in the dark for 50 years (with the presumption of closed records). As soon as you let a little sunshine in, there's going to be a lot of sunburn," she said.

Mutchler's office issued final determinations on 79 appeals of record denials by government agencies. Only eight of those decisions have been appealed to court -- all of them agencies fighting orders to provide access to records.

Mutchler minimized reports of her difficulties dealing with agencies under Gov. Ed Rendell's control.

But others are disappointed, citing Mutchler's recent letter saying that Rendell administration officials wouldn't talk to her and would communicate only in writing.

"The governor needs to set an example on his level of cooperation," Pileggi said. "The statements of some of his department heads indicate less than a full embrace of the statute."

Barry Ciccocioppo, a spokesman for Rendell, said he remains committed to openness under the law and "continues to direct Cabinet officers to make every effort to make records available."



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