by Leah Samuel | PublicSource
After getting a parking ticket at Pittsburgh International Airport, a driver requested a copy of the Allegheny Police Department’s report of the incident. The department didn’t respond.
A parent asked the Ligonier Valley School District for documents detailing planned teacher layoffs. The school district said it had no such documents.
A reporter asked Middle Smithfield Township for maps of local sewer lines. The township refused to turn them over, saying that could jeopardize the security of the sewage system.
Eventually, each of these individuals appealed to the Pennsylvania Office of Open Records, which tries to resolve disputes between citizens asking for information and agencies that don’t want to give it.
But they should not have had to appeal, said Terry Mutchler, executive director of the office.
“Every government record is presumed to be open,” she said, “and the agency has to prove why it shouldn’t be.”
That requirement is one of the reforms made to Pennsylvania’s Right-to-Know Law in 2008 amendments, which also created the OOR.
“At its core, participatory democracy decries locked files and closed doors,” said the Reporters Committee for Freedom of the Press in its Open Government Guide. How, they asked, can a citizen carry out his responsibilities to challenge government decisions when government information is secret?
But five years after the Pennsylvania law’s overhaul, getting government records at the municipal, county and state levels is still often difficult.
“Anybody who thought that passing the new law would make things easier is completely wrong,” said Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition, an organization made up of newspaper editors, attorneys and librarians.
“Agencies actively try to find ways to deny requests,” de Bourbon added.
Sometimes government agencies go so far as to use deception. In 2011, the Department of Environmental Protection denied a request for part of a database, even after the requestor appealed to the OOR.
The DEP claimed that providing the information would mean “trawling through raw data” and “creating a new record,” which government agencies are not required to do under the law.
But the Commonwealth Court struck down that claim in September, after the DEP admitted it had the information in database form and was able to retrieve it.
Many local and state agency officials still aren’t used to the five-year-old requirements for openness, said Mutchler.
“They’ll ask me, ‘Why do they want this?’ and I’ll tell them to forget who’s asking for the information and simply apply the law,” she said.
In 2012, the Office of Open Records dismissed 41 percent of appeals, mostly for incomplete documentation. In the same year, it denied 22 percent of appeals, granting only 11 percent.
And even if a person gets a favorable OOR ruling, they may still run into hurdles.
OOR has no authority to enforce its rulings, so the only recourse for a citizen or the media is appealing to Pennsylvania’s Commonwealth Court and Supreme Court. But it’s an expensive and time-consuming option for average people, who make 87 percent of OOR appeals. Eight percent are from companies and one percent from government officials.
While many believe members of the media are the main requestors of records, only four percent of the OOR’s appeals come from the media. Reporters often use public records to investigate and produce stories about how government works — or doesn’t.
“The larger media entities are the ones that have resources to file the appeals,” said Philadelphia attorney Gayle Sproul, who is currently representing an Associated Press reporter in an open-records case before the state Supreme Court.
While the cost in time and money is onerous, the right to appeal to the OOR and to the courts allows citizens more opportunities to get the records they seek. Unfortunately, said de Bourbon, government agencies also appeal as a way to further delay disclosing information.
In 2009, the first year under Pennsylvania’s revised Right-to-Know law, the Pennsylvania Gaming Control Board failed to respond to an email information request. When the citizen appealed to the OOR, the board told him it didn’t have to respond because he didn’t use the board’s official form, didn’t address the request to the appropriate person and did not mention the Right-to-Know law in his request.
When the board appealed to the Pennsylvania Supreme Court after the OOR ruled against it, the court supported the office’s contention that the Gaming Control Board “cannot simply choose to ignore a citizen’s written request for records because it does not conform with its policies and/or procedures.”
Sproul said that allowing government agencies the right to appeal OOR decisions is a major flaw in the Right-to-Know Law.
“I don’t think agencies should have the right to appeal,” she said. “They didn’t under the old law, but they do under the new law.”
The law’s flaws
Simon Campbell, a futures trader and Pennsbury school board member, discovered another problem with the law. In November, he requested salary and benefits information for employees of Pennsylvania’s 14 public universities. The schools were ready to give him the information when the Association of Pennsylvania State College and University Faculties (APSCUF), a university employees union, sued to block its release. The Commonwealth Court agreed with Campbell, but he withdrew his request as it headed for the Supreme Court.
“I can’t afford it,” said Campbell. “Although I’ve withdrawn, it’s still going to come to about $20,000 total by the time it’s all over,” he said of the legal bills for the case.
He said that, after the union intervened, he paid about $250 an hour in attorney fees to get records the state had already agreed to give him. He said that the union should not have had a voice.
He would have had an even harder time getting similar information from Penn State University, the University of Pittsburgh, Temple University or Lincoln University, which the law calls “state-related institutions.”
This became an issue after the conviction of Penn State assistant football coach Jerry Sandusky on child sex-abuse charges. State-related institutions are only required to submit annual reports to the Governor’s Office, the General Assembly, the Auditor General and the State Library. They do not have to provide them in response to Right-to-Know requests.
And requestors can forget about asking the Corbett administration for those reports, said Campbell.
“The executive branch hates requestors,” he said.
But Nils Hagen-Frederiksen, press secretary for the Governor’s Office General Counsel, said that Corbett’s office grants most of the information requests it receives.
“The Go
vernor is a strong advocate of the open flow of information,” he said. “By far, the majority of requests are granted in full and some granted in part and denied in part.”
The Associated Press appealed to the OOR after Corbett’s office redacted what it called “non-public information” from e-mail messages and schedules a reporter had requested.
With the dispute now in the Pennsylvania Supreme Court, Sproul is representing the AP. The case involves exemptions to the Right-to-Know Law, most of which which are meant to protect individual privacy and security.
“There are 30-plus exemptions, and agencies are vigorous in asserting them,” Sproul said.
A major cause of the tug-of-war between the government agencies that have the information and the citizens who seek it, said Mutchler, is that those who use the Right-to-Know Law have misconceptions and unrealistic expectations.
“The public and the press feel that public officials are criminals and are hiding things in a big vault,” said Mutchler, a former Associated Press investigative reporter. “And they think that the law is going to throw open every filing cabinet in the state.”
In addition, “public officials forget that they are not their office,” Mutchler added. “I’ve had some agencies respond to requests with, ‘It’s none of your business.’”
“I’ve been accused of either being too pro-citizen or being in cahoots with state agencies,” Mutchler added. “But I’m an advocate of the law, not for one side or the other.”
The other challenge, Mutchler said, is keeping up with growing demands on her staff of seven attorneys. In 2009, the office’s first year of operation, it received more than 1,100 appeals. Nearly 2,200 appeals were filed last year.
The office currently has a budget of $1.37 million. Gov. Tom Corbett’s proposed budget for next year raises the funding to $1.4 million. But Mutchler told legislators in February that her office needs $1.8 million to cover costs and to hire another attorney.
“The danger I see is that we can’t keep up with this,” said Mutchler.
Reach Leah Samuel at 412-871-5378 or leahsamuel@journalist.com
Photo by Alexandra Kanik/PublicSource
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