Opinion: Close open records loophole
OPINION
York Daily Record/Sunday News
Sometimes, a final decision isn't exactly final.
That's the case with Pennsylvania's revamped open records law.
The law, intended to grant the public greater and easier access to public documents, allows government bodies to appeal decisions - called final determinations - by the state Office of Open Records. And sometimes that results in records remaining closed because petitioners cannot afford to hire lawyers to defend appeals.
Essentially, the appeals process allows governments that want to keep records out of the public's hands to do so, making the quest for records very similar to the process that existed before the 2009 reform. One public records advocate said, "We're kind of back to square one."
That clearly wasn't the intent of the new law. But that's how it's worked out.
Under the reform, the burden to prove whether a record was public shifted from the public to the government body. If the government entity declined the request, citizens seeking the record could appeal to the Office of Public Records. The office would then review the case and issue what it called a "final determination."
But the law allows government bodies to appeal "final determinations" to Common Pleas Court. At that point, the citizen is responsible for pursuing the case, as the public records office lacks the resources to represent citizens in appeals. There is an irony at work here - a government body using taxpayer money to prevent taxpayers from seeing records detailing how it spends tax dollars.
Take, for instance, a case from Shamokin. Tracey Witmer had asked the Shamokin Area School District for some records, and when her request was denied, she asked the open records office to intercede. The office determined she had the right to the documents. The district appealed. Its solicitors will press the case in court. Ms. Witmer's options are to present the open records ruling as her case, or hire a lawyer.
She wonders why the open records office cannot defend its rulings in court.
Barry Fox, deputy director of the open records office, conceded that it is not possible for the agency to provide representation in every case. It creates a loophole, he said, because government agencies have the means to pursue appeals when average citizens may not.
The appeal process has a chilling effect. Government agencies can ask the court to order petitioners to pay court costs if the court overturns an open records office ruling. Faced with that possibility, it would not be unreasonable to assume that many citizens would balk at pursuing appeals.
The process has to be revamped. The easiest fix would be to make final determinations just that, final. But that wouldn't necessarily be fair. The system should have some judicial oversight.
Another reform could require the open records office to provide representation in the appeal process. But that would require an expansion of the office and an increase in its budget at a time when the state is going through some serious budget problems.
Still, since most final determinations by the open records office are not appealed, the cost wouldn't seem to be onerous.
Perhaps that's the most reasonable solution to close this loophole.
York Daily Record/Sunday News
Sometimes, a final decision isn't exactly final.
That's the case with Pennsylvania's revamped open records law.
The law, intended to grant the public greater and easier access to public documents, allows government bodies to appeal decisions - called final determinations - by the state Office of Open Records. And sometimes that results in records remaining closed because petitioners cannot afford to hire lawyers to defend appeals.
Essentially, the appeals process allows governments that want to keep records out of the public's hands to do so, making the quest for records very similar to the process that existed before the 2009 reform. One public records advocate said, "We're kind of back to square one."
That clearly wasn't the intent of the new law. But that's how it's worked out.
Under the reform, the burden to prove whether a record was public shifted from the public to the government body. If the government entity declined the request, citizens seeking the record could appeal to the Office of Public Records. The office would then review the case and issue what it called a "final determination."
But the law allows government bodies to appeal "final determinations" to Common Pleas Court. At that point, the citizen is responsible for pursuing the case, as the public records office lacks the resources to represent citizens in appeals. There is an irony at work here - a government body using taxpayer money to prevent taxpayers from seeing records detailing how it spends tax dollars.
Take, for instance, a case from Shamokin. Tracey Witmer had asked the Shamokin Area School District for some records, and when her request was denied, she asked the open records office to intercede. The office determined she had the right to the documents. The district appealed. Its solicitors will press the case in court. Ms. Witmer's options are to present the open records ruling as her case, or hire a lawyer.
She wonders why the open records office cannot defend its rulings in court.
Barry Fox, deputy director of the open records office, conceded that it is not possible for the agency to provide representation in every case. It creates a loophole, he said, because government agencies have the means to pursue appeals when average citizens may not.
The appeal process has a chilling effect. Government agencies can ask the court to order petitioners to pay court costs if the court overturns an open records office ruling. Faced with that possibility, it would not be unreasonable to assume that many citizens would balk at pursuing appeals.
The process has to be revamped. The easiest fix would be to make final determinations just that, final. But that wouldn't necessarily be fair. The system should have some judicial oversight.
Another reform could require the open records office to provide representation in the appeal process. But that would require an expansion of the office and an increase in its budget at a time when the state is going through some serious budget problems.
Still, since most final determinations by the open records office are not appealed, the cost wouldn't seem to be onerous.
Perhaps that's the most reasonable solution to close this loophole.
