Pennsylvania May Change Open Records Law

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Tim Mahoney had just won the Democratic primary for a Fayette County seat in the state House of Representatives last year when he paid a lawyer about $4,100 to draft a top-to-bottom revision of the Pennsylvania Right-to-Know Law.

He campaigned on the ambitious 34-page proposal during the election, and introduced the bill as one of his first acts upon taking the seat.

“It needs to happen,” said Mahoney. “We can’t be in the dark up here any more.”

As newspapers around the country highlight public access issues during Sunshine Week starting today, Mahoney’s bill, which has attracted dozens of co-sponsors, is one of several signs that change may soon come to what has been called one of the weakest open-records laws in the country.

Consider:

— Gov. Ed Rendell plans to propose a significant widening of the Right-to-Know Law later this month.

— The new Democratic chairwoman of the House State Government Committee calls revising the law a priority.

— The Senate majority leader is working on his own amendments to the law.

— And the soon-to-come second phase of the Speaker’s Legislative Reform Commission is expected to consider changes to both the Right-to-Know and Sunshine (open meetings) laws.

“I think there is a recognition that changes need to be made, that the law is inadequate,” said Barry Kauffman, executive director of Common Cause of Pennsylvania. “I’m even hopeful we may see some positive tinkering with the Sunshine Law, which would make it more enforceable.”

Amendments in 2002 to the Right-to-Know Law improved the process through which the public can obtain records but did not address the “heart of the law,” said Gayle C. Sproul, president of the nascent Pennsylvania Freedom of Information Coalition.

She said the appetite for revisiting it has been increased by fallout from the ill-fated 2005 pay-raise law, including the defeat of 24 incumbent state lawmakers last year.

“I believe there is a strong feeling among citizens to open government” to greater public scrutiny, said Sproul, a Philadelphia media law attorney whose clients have included The Associated Press. “I think this is the right time for this to happen.”

For 50 years, Pennsylvania law has guaranteed access only to accounts, vouchers, contracts, minutes, orders or decisions – and court rulings have further narrowed the definition.

Open-records advocates have long sought to define all Pennsylvania government records as public records, then provide a list of specific exceptions – the approach most other states currently take.

Mahoney’s bill would accomplish that, along with establishing a state government agency to help people obtain government records and information, tightening penalties for officials who violate the law and forcing every agency to provide its financial records electronically.

It’s impossible to predict where the current debate will lead. A policy aide to Rendell said last week that he also supported making all records open beyond a list of exceptions and wanted to establish an open-records ombudsman’s office.

After Democrats won a one-seat majority in the state House last fall, Rep. Babette Josephs, D-Philadelphia, became chairwoman of the State Government Committee, which normally handles open-records legislation.

Josephs said she didn’t “see any problem at all” in changing the definition of a public record and putting the onus on governments to prove that a record is not public. She stopped short of endorsing Mahoney’s bill, saying she needed to study it.

“I would like to see much more available to the public in a form that is easy to access and useful to them,” Josephs said.

In the state Senate, Majority Leader Dominic Pileggi, R-Delaware, said he wants to broaden the Right-to-Know Law to include financial records of the Legislature, the judicial branch and the four state-related universities – Penn State, Pittsburgh, Temple and Lincoln.

He said he also wants to make clear that the law applies to the Pennsylvania Higher Education Assistance Agency, which has fought news organizations’ attempts to review its records.

Senate Republican lawyer Steve MacNett said the GOP is also considering shortening the time government agencies have to respond to records requests and changing how agency appeals are handled.

MacNett said the bill probably would not make the change in the definition of a public record that is favored by Rendell, Mahoney and others.

Pileggi worries that it will “set off an endless amount of additional litigation as people attempt to sort out what the flip of the presumption has caused,” MacNett said, referring to the notion of redefining all records as open except for listed exceptions.

Deborah Musselman, a lobbyist for the Pennsylvania Newspaper Association, called the “flip of presumption” the “holy grail” of the changes sought on open records in the state.

“One of the problems with the current law is that the case law is contradictory and unsettled,” she said. “So in terms of any possible future litigation, it couldn’t get much worse than it is now.”

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