PA Right-to-Know Law

“Although it is good that the legislature and the courts are now subject to RTK to some extent, only certain records of the legislature and the courts are subject to the law and thus, the same presumption, as the category of “legislative” and “judicial” records which the bill covers are more narrowly defined.”

Q/A: Craig J. Staudenmaier, Esq.

The following interview with Attorney Craig J. Staudenmaier discusses key points in the new Pennsylvania Right-to-Know Law which will likely be signed into law today by Governor Rendell. Staudenmaier was instrumental in several important matters– the PSU Paterno and PHEAA cases — pertaining to the development of the new law. He specializes in print and broadcast media cases addressing access issues, subpoena of reporters, privacy issues and defamation claims.

Mr. Staudenmaier is a lecturer for the Pennsylvania Bar Institute and the Pennsylvania Society of Newspaper Editors. He received The Benjamin Franklin Award for Excellence this year from the Pennsylvania Newspaper Association (PNA) for his work in preserving open records laws and the Right-to-Know Law. He is available for further comment on the subject.

Question: How do you react to the final bill? Where is it weak, and where is it strong?

Answer: The greatest strength of the bill, in my opinion, is the change of the presumption that all records of a Commonwealth or local agency are open now unless they can fit into one of the 30 categories of exceptions set forth in the bill. Although it is good that the legislature and the courts are now subject to RTK to some extent, only certain records of the legislature and the courts are subject to the law and thus, the same presumption, as the category of “legislative” and “judicial” records which the bill covers are more narrowly defined.

However, there will be much more financial information available from the legislature and courts and additional information from the legislature on legislation activities. The other key provision of the bill is the creation of the Office of Open Records. This is like an ombudsman type office that some other states have and will provide an alternate appeal review location, training for local agencies and officials, issue advisory opinions and hopefully make the it somewhat easier/cheaper for open records challenges and provide some state wide consistency to review and decisions on open records issues(create a uniform form for RTK requests, establish uniform fees for photocopying) besides the courts. It also increases the penalties for non-compliance with the law for an agency and an official. It also makes specific requirements for “state-related” universities like Penn State, Temple, etc. for providing a limited amount of information public(top 25 highest paid employees). It also contains a specific provision for making state contract information publicly available for search on line.

As far as deficiencies, the bill still creates a distinction between the legislature’s records and those of executive agencies with the legislature’s records still being less available for public view. The 30 exceptions are also far too many. For example, criminal and non criminal investigative materials still remain closed virtually forever. There is also a provision in the bill which allows an agency the ability to charge a fee of an undefined “market value” for various “complex or integrated data sets”. Also, some vague language in the bill may allow agencies to seek to impose fees if “the agency necessarily incurs costs for complying with the request” which may be burdensome or prohibitive to the average citizen. There is a requirement that they be reasonable, so the court’s may, once again, have to act as watchdog on this provision. It also permits different fees depending on “regional price differences” which is an undefined and vague term with no real legal basis.

The provision for making the state related universities provide very limited information is weak and could have gone much further, but does not. Finally, autopsies, which were publicly available before, are no longer. Although at first blush this may seem a good thing, there have been instances in the past where media access to these types of records has been used to question official explanations of certain types of deaths. This is an example of where the law actually has taken away a previous right of access.

Q: RTK implications reach beyond state government to virtually every governmental entity in Pennsylvania. How will the bill effect county and local governments? Will it require changes in policy and procedures at the local level? How can local government assure compliance?

A: Local agencies or government will have to plan ahead to implement the broader access granted. Also, the Office of Open Records is going to establish uniform fees to some extent and a standard request form which all covered agencies will have to adapt to. Most counties have been dealing with RTK requests and have policies in place which will require adjustment, but many small boroughs and townships do not and will have to adopt policies to make them compliant. There will also be incumbent on their state-wide associations to provide proper training and guidance on the new requirements. I suspect there will also other seminars conducted by groups like the Penna. Bar Assoc. and Penna. Newspaper Assoc. alone or in conjunction with these government associations which will provide excellent sources of training and guidance.

Q: Looking at the rights of citizens who seek information from government entities, what impact will the new law have on individual access? Are there any stipulations or restrictions placed on the citizen’s right to access? How easy will it be for the average citizen to gain access to state information?

A: As for the average citizen, it should greatly improve his/her access. It should also, in theory, provide a somewhat more streamlined and thus inexpensive method for challenging improper denials of RTK requests. All agencies must respond to a written request within 5 business days of receipt unless they notify the requester that it needs an additional 30 days to respond due to a number of possible factors such as legal review, voluminous requests, the requester has not complied with the agency’s RTK policies, a timely response cannot be made within 5 days(records off site, etc.) or the ‘extent and nature of the request precludes a response within the required time period.’ Some of the fee provisions, if they are abused or misinterpreted, could cause problems for the requester. The ‘regional differences’ and the “necessarily incurs fees” provisions above are two examples. Finally, the 30 exceptions to disclosure and the differences between what Commonwealth and local agencies are required to disclose as opposed to the more narrow disclosures of the legislature and the courts may prove confusing, frustrating and illogical to the average citizen.

Q: How does the new bill impact on business and corporations who seek information from government at any level? Are there loopholes, or obstacles business should be aware of? Will it impact how lobbying activities are conducted in Harrisburg?

A: Businesses will face the same benefits and challenges as the individual citizens. They may also face the situation that information they were able to get in the past, like SSN#s in some instances, are specifically prohibited now and this could prove frustrating for medical, insurance or banking entities seeking to properly identify an individual the way they have traditionally done so. Also, there is one fee provision in section 1307 which businesses who seek public records that are comprised of data sets like real estate assessment records and geographic information systems may find themselves paying tens of thousands of dollars for if the agency is allowed to charge “market value” which is undefined and will end up costing different amounts for basically the same information depending on where you are asking for it which was never embedded in the RTK law before.

Q: Probably the most important area of public access is easy media access to government information. How does the bill improved media access? Are there still limitations on media access in your opinion? How will the new bill impact on the reporting of government in the future?

A: As for the media’s access, it too should improve as set forth above and be limited as well. The media played a major role in bringing the need for improved access to public records to the attention of the public and the legislature and in striving to refine the initial bills to more closely serve the need for greater access on behalf of everyone. They are to be commended for those efforts which have resulted in a bill which is head and shoulders above our current law and should elevate Pennsylvania from being a laughing stock nationwide regarding RTK to a place where our Commonwealth deserves to be on such issues. Although not perfect, and what is, it provides a solid basis for increased access to government and thus increased accountability from that government and our elected officials. Also, I am confident the media will continue to watch how the bill is implemented and interpreted by the agencies subject to it and will, if necessary, bring media attention and the courts to bear where abuses still occur.

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