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Public Access: Clerks often shut doors to records due to lack of procedures
Third in a five-part series
Tuesday, May 24, 2005

HARRISBURG -- Government clerks are often the gatekeepers to public records in Pennsylvania, and frequently they keep the gates closed because they are misinformed, inadequately trained, reluctant to act on their own or simply too busy, a survey found.

The survey by 51 news organizations showed a need for more training and more explicit procedures so the clerks are able to comply with state access laws without fearing they are doing something wrong.

Often, clerks were afraid to release documents without the express approval -- and sometimes physical presence -- of a supervisor.

That was what happened when a surveyor arrived at the Northern Potter School District in the northcentral part of the state, one of nearly 700 government offices visited in a test of access to government records and information three years after the Legislature strengthened the Right-to-Know Law.

District secretary Vickye L. Hudson declined to produce a copy of superintendent Robert C. Smith's employment contract because he didn't happen to be in at the time.

"I know how Mr. Smith is -- he likes to be the one to say, 'OK, this is fine,' or wants to know why the person wanted it," Hudson said later. "If (the surveyor) had have come back or called we'd have had it right to her."

Some front-line office workers conducted aggressive questioning that their bosses consider inappropriate, as in Factoryville, where a reporter who wanted a district court file ended up with a photocopy of her driver's license being placed inside the file.

District Judge Russell D. Shurtleff later said it was a mistake that he would discuss with his employees.

"There's no need to do that -- everything is a public record, of course, unless the court seals it or unless there's a juvenile victim involved," said Shurtleff, whose courtroom is 11 miles from Scranton.

Strausstown district court clerk Sherry Stump said there were no wrong answers to the questions she asked -- including where the surveyor worked and why she wanted the file -- but believes she was entitled to answers. Strausstown is roughly midway between Reading and Pottsville.

"I think that's a common courtesy from someone," she said.

Employees of Pennsylvania's 555 district courts are paid by the counties and training can be spotty -- sometimes no more than what the judge provides, said Jim Morgan, the solicitor for the Special Court Judges Association.

"My issue isn't the fact that they aren't trainable. My issue is they aren't high-paying jobs and they aren't going to put themselves on a limb," said Morgan, who has helped train new judges in handling public records.

District judges, who handle everything from traffic offenses to preliminary hearings on felonies, earn $64,669 but the clerks' salaries are set by individual counties.

Workers in the office of District Judge Michael J. Burns quizzed a surveyor about her relationship to the defendant and why she needed the case file. A disheartened Burns said later he has tried to improve procedures in his Morrisville office, about a half-hour northeast of Philadelphia.

"It's an ongoing battle trying to get longtime court employees to understand that the records belong to the public," he said.

A legal right to ask questions doesn't necessarily mean it's a good idea, said Emily J. Leader, deputy chief counsel for the Pennsylvania School Boards Association.

"You probably could ask anything, but if it's the basis for disclosure, it's a problem," said Leader, who is producing a pamphlet to guide districts in handling public records.

"I personally would advise people not to ask questions like that because it could give the impression they're going to make decisions based on that," she said.

Some explanations for rejecting requests suggested clerks were either misinformed or improvising.

A clerk at the Delaware County Courthouse told a surveyor that county lawyers' salaries were confidential under the federal Health Information Portability and Accountability Act, a law intended to protect the identity of medical patients.

In Lancaster County, a district court employee would make photocopies only for cases that are no longer active. No such distinction exists under the law, and the judge later said she would discuss the mistake with her staff.

In Berwick, a district court clerk said she would not release a file because the information it contained had already been published in the local newspaper.

Cate Barron, president of the Pennsylvania Society of Newspaper Editors and managing editor of The Patriot-News of Harrisburg, said she doesn't believe government employees generally deny records for malicious reasons. She believes the problem is a lack of knowledge about the public's access rights.

"It's what we deal with every day, but for them, they might get one request every six weeks or so," she said. "Society's so litigious that I think a lot of times people ... try to take the path that is more apt to keep them out of trouble."

First published on May 24, 2005 at 12:00 am