When Pennsylvania's latest open records law went into effect in 2009, the state moved forward by making more information about governmental operations accessible to the public. Since then, the law has produced some improvements but it hasn't always made good on its promise, and now is a good time to take a hard look and tweak the law for the better.
Senate Bill 444 proposes to do just that but, in its current form, it contains too few advancements and too many setbacks.
Most troubling is a provision that would give agencies a way to sidestep state regulators when they receive requests for information that they consider "unduly burdensome." That fuzzy term is an invitation to abuse because, rather than going through the state's Office of Open Records for relief, governmental entities could seek protective orders in court that would put records out of the public's reach. That option reverses the law's fundamental feature that, unless specifically exempted, records are presumed to be open. The head of the state open records office predicted that declarations of undue burden will become routine, bringing compliance with the law to a halt.
Equally problematic is language that would significantly restrict what information is public when private contractors or vendors are hired to perform governmental functions. Under the proposal, only the provider's contract with the government agency would be public. Currently, the law extends to records that directly relate to the governmental function.
For example, PennDOT hires contractors to inspect its bridges, but under the proposed law the resulting reports could be off limits. The same could be true in the case of the Allegheny County Jail, which contracts with a private firm for inmate medical services, or the city of Pittsburgh, which hires companies to conduct building inspections. It's important for the work product from these public-private partnerships to remain public records.
Other provisions in the bill would limit information provided to inmates, who file a third of the state's Right-to-Know requests, and would give volunteer fire companies, which typically have contracts with local governments, some exemptions they don't have now.
The state should be expanding openness by revoking many of the exemptions under the current law, not moving in the other direction. A prime example is the present law's failure to open the books of Penn State, Pitt and the other state-related universities. Any new law should require far more disclosure from such schools, which receive hundreds of millions of public dollars per year.
Lawmakers also should beef up enforcement provisions because the law does not have enough teeth when agencies fail to produce records as required under the law.
One necessary accommodation in the bill should help small townships and boroughs, which reported they are besieged with requests from businesses for information that helps them recruit new customers. For instance, home-improvement businesses frequently seek occupancy or building permits so they can target their sales pitches. The bill would fix that by allowing agencies to assess fees to recoup their costs when the information is for a commercial purpose.
Fortunately, it would not impose special fees on businesses that seek information for other purposes, such as news organizations that request records for reporting or educational institutions that use them for scholarly or scientific research.
During a hearing on the bill May 13, Senate Majority Leader Dominic Pileggi, R-Delaware County, said the process of amending the Right to Know law is just beginning. We're taking him at his word that the first session and another one planned for next month truly are intended as means for the State Government Committee to learn how best to improve the open records law, not undercut it. The current version of the bill doesn't do the job.