PNA members may use this editorial freely for reprint in their own publications.

By Teri Henning, General Counsel
Pennsylvania Newspaper Association

It is well understood that Pennsylvania has one of the worst open records laws in the country. In state-by-state surveys of open records laws, Pennsylvania generally falls within the bottom two or three. What that means for Pennsylvania residents is that we are often unable to monitor the work of our local and state governments or to hold them accountable for their decisions. And it seems to get harder every day.

Laws continue to be passed that prevent access to information, as with the recent slots law -- which exempts much applicant information from disclosure and allows the applicants themselves to designate documents as "confidential."

Recent court decisions have further limited access, as the Pennsylvania appellate courts have ruled that an agency can refuse access to almost all of the information on public officials' cell phone bills and on legal invoices submitted to agencies. In 2001, the Pennsylvania Supreme Court ruled that a document that supported the payment of $145 million from public funds to settle a lawsuit was not a public record. The Courts have also ruled that the public has no right to a draft contract or proposal until the contract or proposal is finalized -- which is obviously too late for the public to comment.

In 2002, the Pennsylvania Right to Know Law -- our state's open records act -- was amended to improve the procedural aspects of records requests. The amendments brought some improvements, but also brought problems, as many agencies tasked with interpreting the law continue to create obstacles to access, including delaying responses and charging additional, sometimes exorbitant fees, for those responses. Despite the 2002 reforms, procedural problems continue, and additional legislative reform is necessary to make the process run more smoothly.

But the real challenge ahead is amending the definition of "public record" under the Law. The current definition of "public record," adopted in 1957, is outdated, overly restrictive, and (as is apparent from many of the court decisions over the years) often unworkable.

As it currently stands, a record is "public" under Pennsylvania law only if it fits into one of two narrow categories. The Law also contains a number of exemptions to the definition of "public record," so that even if a record falls into one of the categories, it is not public if it would harm someone's reputation or if it would disclose "the institution, progress or results" of an agency's investigation.

In Pennsylvania, the burden is on the requester to establish that a particular record is "public." The reverse should be true. The presumption should be that records held by public agencies are accessible to the public. From there, we should identify specific categories of records that are "non-public."

The majority of states' open records laws and the federal Freedom of Information Act do just this. They start with a presumption of access, and then list specific categories of records that are exempted from access, such as documents that would disclose ongoing police investigations, or the disclosure of which would threaten domestic security.

We need to start over in Pennsylvania, with a new definition of public record. Other states have done it, and we have numerous examples to guide us. Only a few years ago, New Jersey overhauled its open records law. In 2000, Pennsylvania Sen. Stewart Greenleaf proposed SB1333, which would have created a presumption of access to records, along with an Office of Access to Public Records to issue agency guidelines, provide advisory opinions and to hear certain appeals. Other states have established similar offices as a way to improve access for citizens who cannot afford costly litigation and to promote consistency in the interpretation of their access laws. Other states' laws and SB1333 are just starting points, but we need to start.

Under Pennsylvania's current access laws, the requester has all of the burden, and the agency has all of the information (including what the document is called, where it is kept, etc.). This makes no sense. And it's no wonder -- given the state of our law -- that Pennsylvanians are unable to track what their state and local governments are doing.

Pennsylvania is in a crisis of access. Our open records law is terrible, the General Assembly continues to pass laws restricting access, recent court decisions have resulted in further restrictions, and agencies continue to delay and deny access. The time to act is now. In 2005, Pennsylvanians showed that they can effect change when they act and speak together on an issue that matters to them. I hope that we can find a way in 2006 to improve access to government. If enough people speak out on this issue, the General Assembly will listen.