Changes could be on horizon for Pa.'s records law

AP News
Posted: Dec 23, 2009 11:12 AM

The five-page Right-to-Know Law request that arrived in March at the Pennsylvania Department of Public Welfare was so broad that officials worried how much it would cost to fulfill it.

A Philadelphia lawyer was looking for information about prescription drug reimbursements in the state Medicaid program going back 18 years.

The agency figured it would take a team of 11 people a year to dig it all up.

"That's not the whole commonwealth work force, but that's a lot," said Barbara Adams, general counsel to Gov. Ed Rendell. "And a whole year is beyond the time frames that are permitted."

The lawyer, Stephen A. Loney Jr., later withdrew that request, and isn't commenting about it or the legal battle over a more narrow version he later filed. But Adams said his requests reflect some of the many issues that have arisen during the first year under Pennsylvania's revised Right-to-Know Law, which may soon be amended.

Should taxpayers have to foot a part of the cost of massive requests? How does the law work when the records are also integral to an ongoing lawsuit? Should the government be able to cancel a request it deems to be a practical impossibility?

Adams thinks there should be some way to restrict access or tack on fees for information that is going to be used commercially _ a pension company looking to contact retirees, for example, or an investment-tracking service running down details of the state's Wall Street transactions.

She also disagrees with a position the state's new Office of Open Records has taken _ that agencies may charge requesters a fee for making copies of documents, but not for the cost of employees' labor in retrieving records and blacking out certain information.

But those expenses may not be big enough to warrant a court fight over the open-records office's policy. Through the first 10 months of the year, right-to-know requests to state agencies under the governor cost taxpayers at least $136,000 that was not offset by copying fees, Adams said.

"It's not $136 million," she acknowledged. "If it's not a big issue, maybe we don't have to have a lawsuit about it."

Others say steep costs under the law that had been in place before this year discouraged people from exercising their prerogative as citizens to keep tabs on their government.

"It's not extra work," said Pennsylvania Newspaper Association lawyer Melissa Bevan Melewsky. "It's work that has to be done pursuant to law."

The law, a complicated 52-page document that rewrote a statute in place since the 1950s, could be amended as early as the spring, said its prime sponsor, Senate Majority Leader Dominic Pileggi, R-Delaware.

If so, lawmakers will certainly revisit a topic they previously debated _ whether to allow disclosure of government employees' home addresses. Currently only addresses of law enforcement officers, judges and juveniles are specifically exempt, but a lawsuit over the lack of similar protections for others has been filed by the state's largest teachers' union, claiming it violates privacy rights.

The union won an injunction temporarily expanding that protection, but the case is currently before the state Supreme Court to decide if the union had legal standing to sue. Media organizations that depend on information such as addresses and dates of birth to distinguish people with the same names are watching the case closely.

"Your home address, I could probably find in a couple of minutes," said Craig Staudenmaier, a Harrisburg lawyer who specializes in the Right-to-Know Law and related public-access issues. "The idea that there's some general privacy right in your home address for every public employee or every public-school employee is ridiculous."

Pileggi described the issue of government employees addresses as "a discussion that needs to be had," and said he does not want that discussion to be limited to public school teachers alone.

On the technical front, Melewsky said the law should have included a "standard of review," a legal concept that guides how cases are decided _ how much deference judges give, for example, to the Office of Open Records' decisions.

Some judges are making their decisions based solely on arguments, she said, while others have been getting the parties to produce evidence and put on testimony that helps build a record.

Melewsky also said lawmakers should clarify when the 15-day period begins for someone to decide if they want to appeal an agency's decision.

"We've seen letters go out (dated) Nov. 1, but they're not mailed until Nov. 10," Melewsky said. "That's a big problem."

Devin Day, who has battled his local school district in East Stroudsburg over access to public records, said there should be stricter penalties when officials lie about the existence of records and a means of preventing agencies from automatically taking as much time as possible to fulfill requests.

"They have lawyers on retainer and they do everything they can to dress this thing up and jerk you around," said Day, 58, a salesman.

Reopening the law would also re-ignite debate on the law's list of 30 exceptions _ categories of records that can be kept secret.

Staudenmaier said the exception for noncriminal investigations gets overused "by everybody from zoning officers to code enforcement officers to dog enforcement people."

The Office of Open Records, which was established under the new law to resolve disputes over public access, warned in a May decision that noncriminal investigations had "the potential to be the exception that swallows the rule embodied" by the new law.

The investigations exception was cited by East Stroudsburg Area School District in turning down a request to see the results of its internal probe into how a classroom trailer ended up sold for $1 on eBay, three years after the district spent $62,000 to buy and install it.

"I think Pennsylvania's investigation exemption has always been too broadly drawn," Staudenmaier said. "And it's also 'forever and ever amen.' There's no limit to it."

Office of Open Records executive director Terry Mutchler said the loophole has become a concern for her.

"You can drive a truck through that. You can probably drive two," she said. "We need to look at that and probably get a better handle on what that's going to mean if we're going to have a practical application of it."

There also may be debate in the Legislature about how the Office of Open Records has been interpreting the law's provision that governments do not have to create records in a form that does not already exist.

In one case, the office ordered the Pennsylvania Department of Transportation to produce records on the sales of abandoned vehicles towed in Reading, even if it meant culling the information from a massive set of 11 million records. PennDOT estimated it would cost as much as $5,000.

Mutchler said she would like to see more flexibility in the law's requirement that her agency furnish a final ruling within 30 days, which she said makes it difficult, for example, for her staff to send letters back and forth as they seek the facts.

So far the Office of Open Records has not held a single hearing, instead making rulings based on written filings. Some argue the lack of hearings violates the due-process rights of requesters, and Mutchler said the first hearings could take place next year.

"How do you make findings of fact if there's no evidence in the record, only argument?" asked Mary Catherine Roper, a lawyer with the American Civil Liberties Union of Pennsylvania. "I believe the Department of Corrections' lawyer because they say so?"

Barry Kauffman, executive director of Common Cause of Pennsylvania, said he wants to see new language to make it easier for people to obtain government studies. Those are documents that can be withheld under the law's exceptions for predecisional documents or noncriminal investigations.

He also said putting the Legislature under the same disclosure rules as other agencies would be an improvement, and might have helped prevent the alleged behavior that has already resulted in charges against state House lawmakers and their aides for allegedly diverting public resources for campaigns and other purposes.

The amendment process, however, carries some risk.

"You're always worried you could lose ground," Kauffman said. "That's why I've cautioned people _ let's give this a year."

Even those who think the new law needs work consider it a marked improvement over what was once dismissed as the Pennsylvania Right to "No" Law.

"I think it's a positive sign that people feel empowered to ask their government for records," Melewsky said. "We're much better off than we were a year ago."