Pennsylvania’s Right to Know Law (RTKL) is an imperfect but useful tool for journalists, and the general public, to access information about how government works. It becomes much less useful when public officials ignore the law to keep the public in the dark — basing their refusal to obey the law with a convenient (mis)interpretation of what it says. And then give themselves the final say on appeals to their convenient (mis)interpretation.

Besides keeping too-cozy relationships and shady dealings from the public, there are legitimate reasons lawmakers might be wary of making their correspondence with lobbyists public. Government relations professionals do serve a real purpose by explaining the always-complicated details of public policy and its effects on industries and institutions. They can help prevent harmful unintended consequences.

Their relationships with legislators are based in trust that is harder to build when everything might someday be public. Many legitimate communications would be susceptible to misinterpretation by journalists or members of the public who don’t understand the unique nature of this work.

But explicit language in the RTKL requires the state General Assembly to release communications between lawmakers and lobbyists, and the legislature has consistently refused to do so, according to the investigative agency SpotlightPA. Further, the law leaves the legislative branch to police itself — with predictable results.

While most lawmaker communications are presumptively public, the RTKL includes an exception, meant to protect the privacy of constituents, for “correspondence which would identify a person that requests assistance.” But there is an exception within that exception for correspondence with lobbyists, because such communication lacks the same privacy interest and has clear public importance.

There could hardly be a better way to understand how lawmaking really works than making lobbyist-legislator communications susceptible to RTK requests — and that’s exactly what the state’s RTKL did, whether legislators realized it or not when they passed the bill in 2008. If the General Assembly has regrets about this, it can attempt to amend the law, but simply ignoring it is not an option.

But it has thus far been successful in doing so because the legislature did have the (cynical) foresight to give itself the power to police its own compliance. SpotlightPA reports that the Senate’s appeals officer is its own secretary, and the House’s is a lawyer who reports to a high-ranking member of the chamber. Unsurprisingly, these officials have upheld fewer than 5% of appeals, compared to the 20% to 30% upheld by the independent Office of Open Records.

In other words, the General Assembly has essentially approved its skirting of the law — a blow not just to transparency but to the rule of law itself. The RTK appeals process for the legislature should be moved to the Office of Open Records. And in the meantime, lawmakers must stop stonewalling and follow their own law.

First Published: September 8, 2023, 9:50 a.m.