NCC forum discusses new Right to Know law, open records
By Andrew Scott
Pocono Record Writer
For more than 50 years, Pennsylvania's public agencies could deny residents access to public records without explaining why residents couldn't have access.
The state's new Right to Know law, enacted Jan. 1, 2009, puts the burden on agencies to prove why records are exempt.
At a Tuesday night forum at Northampton Community College's Tannersville campus, the public got a better sense of this new law. The forum was sponsored by The Pocono Record and NCC.
After a brief introduction by Pocono Record executive editor Christopher Mele, Pennsylvania Freedom of Information executive director and former Pocono Record executive editor Kim de Bourbon and Pennsylvania Office of Open Records executive director Terry Mutchler addressed a crowd of more than a dozen on how the law works.
"When the old state law was passed in 1957, it was considered to be at the forefront of open records access at that time," de Bourbon told the audience. "By 2007, it was considered the worst open records law in the country."
Hence, Act 3 of 2008, which created the current law.
"It's going to take a while to sort out all the details under the new law," de Bourbon said. "There are a lot of provisions still being worked out. It's probably going to take 10 years for these provisions to become really defined."
The current law applies to public records created both before and after its enactment date, but does not govern how long agencies are required to keep those records. Public records include electronic documents, photos, maps, letters, books, tapes and films.
Subject to the law are Commonwealth, local legislative and judicial agency records. Legislative agencies are required to release only certain records, such as meeting minutes and votes, while judicial agencies are required to release only financial records.
Not subject to the law are private community association records.
Thirty categories of records are exempt under the law. These include homeland security information, social security numbers, business trade secrets, personnel records and police investigations.
The law requires public agencies to have open records officers in charge of releasing information to the public. Those requesting access to records must be legal U.S. residents and be as specific as possible when requesting what they're looking for.
An agency has five business days, starting on the business day after the request is made, to grant access, deny access with proof of why the information being requested is exempt or request a 30-day extension allowing more time to obtain the information for release. Reasons for requesting a 30-day extension can include staff limitations and records being stored in a remote location.
If an agency denies access to public records, the requester can file an appeal to the Office of Open Records. That appeal must include a copy of the Right to Know request, a copy of the agency's denial letter and an explanation as to why the requester believes the records are public, as well as address any issues raised in the agency's denial letter.
Once receiving the appeal, the Office of Open Records then has 30 days to issue a final determination in favor of the requester or the agency.
The law fines an agency up to $1,500 for denying public records access in bad faith, plus an additional $500 for each day the agency continues to deny access.
Mutchler said the Office of Open Records in its first year of operation has received 1,159 appeals, 90 percent of which are from citizens, eight percent from the news media and two percent from public officials.
Of those 1,159 appeals, 246 have been fully or partially granted in requesters' favor, 350 have been denied, 254 have been dismissed, 167 have been withdrawn and 142 are still pending.
"There are tens of thousands of public records being released under this new law that never would have seen the light of day under the old law," Mutchler said.
"This law works only if citizens exercise their right to know and use the appeal process."