In Pennsylvania, culture of secrecy, Right to Know Law remain work in progress

Pennsylvania’s records laws were for many years among the most restrictive in the country, and though the letter of the law has since improved drastically, freedom of information advocates say the spirit of the law has lagged.

Pennsylvania overhaul of its Right to Know Law four years ago was a major victory for government transparency, journalist Patrick Kerkstra recalls in a recent article for The Philadelphia Inquirer.

Pennsylvania’s old public records law, enacted in 1957, put the burden on the requester to prove that the desired document was indeed public. The law also created a narrow definition of what was public: financial records such as accounts, vouchers or contracts and records of minutes, orders and decisions.

“Under the old law, reporters -- including myself -- had to construct exceptionally narrow records requests, and we chose our battles very carefully because the law really wasn't on our side,” Kerkstra said in an email. “So there was a real chilling effect. You'd get a rejection, and you'd be reluctant to appeal because the law was so bad. And public agencies knew it.”

The 2009 reforms made many drastic improvements, including:

• All records are now presumed to be public, with exemptions. This is a reversal from the previous law

• The burden of proving whether or not a record is public now rests with the government agency.

• A state Office of Open Records was established to enforce the law and serve as a resource for citizens

“Under the new law, I personally feel emboldened to ask for a wider array of records,” Kerkstra said. He said he’s had much more success to getting records, though he believes that owes in part to a change in the Philadelphia mayoral administration, his principal beat.

The new law is much improved with no question that records in Pennsylvania are now more accessible, said Kim de Bourbon, Executive Director of the Pennsylvania Freedom of Information Coalition, but there are still many shortcomings that need to be addressed. She outlined the top five problem areas she sees in the law via email:

• “Although the Office of Open Records' final determinations are "legally binding," agencies have discovered they may still simply appeal those determinations to court, and many automatically do so. In effect, this means requesters are back where they were under the old law:  outgunned against an agency's legal power, and forced to hire a lawyer and go to court to defend their right to public records.”

  In fact, she said, OOR orders are often ignored by agencies who hope the requester will just give up and go away, because the OOR has no power to enforce its decisions.

• “The intent of the law was to make agencies provide records quickly, and so the law requires a response to requests within five business days.  However, the law also allows agencies to take a 30-day extension on their own accord for such reasons as ‘staffing limitations’ and ‘legal review needed.’”

  The result, she said, is that some agencies make it a matter of policy to always take more than a month to provide records.

• "Although the law provides for records to be provided 'in the format requested' if they already exist that way, some agencies have been loathe to provide original electronic spreadsheets that the requester can use to crunch data in a useful way. Instead, if a requester asks for electronic copies, they are providing PDFs that of course aren't as useful. The agency's argument is that ‘format’ means ‘electronic,’ not the type of software.”

• “The law has overly-broad exceptions for both criminal and non-criminal investigative records.”

  Any record relating to or resulting in a criminal investigation may be withheld, and though information in a police blotter is public, most police departments say they don’t keep those kinds of blotters anymore, making it difficult to get information on even minor incidents. Certain non-criminal investigations are also exempt, which is open to broad interpretation and potentially exempts a wide array of records, depending on what an agency calls an investigation.

• “Another sticky exception allows agencies to withhold records that reflect ‘the internal, predecisional deliberations’ of an agency. There is no definition of what this means, and many agencies have taken it to mean everything having to do with a decision before it is made can be withheld.”

  Records presented to a quorum are public, but because the law doesn’t deal with timeliness of record releases, nothing says these records have to be made available before a public meeting,

Beyond gaps in the law as written, freedom of information advocates like de Bourbon say a culture of secrecy has persisted, firmly entrenched after decades of law that enabled secrecy.

“We may have a new Right to Know Law,” de Bourbon said, “but bad attitudes about the public’s right to records are deeply ingrained in some officials -- they just don’t know any better, because under the old law, there was no presumption that the public had a right to see anything.”

Perhaps the most glaring example of such secrecy occurred at Pennsylvania State University during investigations into Jerry Sandusky, who was ultimately sentenced to 30-60 years in prison for child sex abuse. Inquiries into the abuse concluded that senior officials at the university were aware of the sex abuse and failed to take action to protect children from Sandusky.

In the midst of the Penn State scandal and in its aftermath, the state’s Right to Know Law has come under increased scrutiny once again. In March, Pennsylvania-area lawyer Michael Berry published a letter in the Pittsburgh Post-Gazette in March stating the state’s Right To Know Law was protecting criminals and failing the public.

Penn State and other “state-related” universities are not subject to the state's Right to Know Law except in very minor ways -- an exemption that made national news in the wake of the scandal and politicians rushed to introduce potential fixes.

“They were exempt before the overhaul, and -- miraculously -- they were exempt afterward,” Kerkstra said. “In my opinion, this exemption positively contributed to the culture of secrecy at Penn State. There's talk now, post Sandusky, of doing away with the exemption, but it didn't come up in the fall legislative session.”

Last month, Pennsylvania auditor general Jack Wagner declared that Penn State, the institution he said led the charge for university exemptions under the state’s Right to Know Law, should open its records and undergo major reforms in its governance to ensure better transparency.

Kim de Bourbon, who said she fielded many inquiries during the height of the scandal from out-of-state journalists who were appalled and confused about the exemption for Penn State, isn’t sure how much impact fixing that exemption would have had.

“But quite frankly,” she wrote, “even if Penn State HAD been obligated to make its records public under the new RTK Law, there are such broad exceptions for investigative records … that it is unlikely any of the Sandusky mess would have been made public any earlier.”