by Teri Henning, General Counsel
Pennsylvania Newspaper Association
If a crime has been committed in your community, or in your child's school, you should know. Finding out how your tax money is being spent by your municipality should be as easy as asking. It is in other states, but not in Pennsylvania.
- In Harrisburg, a man was arrested for allegedly attacking a woman who was running along Front Street. But that was news to all of the other women and men who run in that park every day, because the information was not released by the local police until after the arrest.
- In a Pennsylvania elementary school, an event was cancelled because of a bomb threat. But parents were not informed of the threat until after the relevant time frame had passed.
- The Pennsylvania Higher Education Assistance Agency has spent over $800,000 on Board retreats in recent years. But it refuses to grant access to the invoices that would explain how that money was spent -- and has spent a significant amount of time and money fighting the matter in court.
- In municipalities across the Commonwealth, citizens struggle for access to even the most basic financial information, including budget documents, salary information for public employees and monetary settlements paid to settle lawsuits.
Recent court decisions have made it harder than ever to gain access to public records and meetings. As a result, many local and state agencies routinely refuse access to public information -- knowing that no penalties will be imposed.
The fact is that Pennsylvanians are routinely denied access to records and meetings that are open in other states, and the Pennsylvania General Assembly has been resistant to improving access. Meaningful reform is necessary, and now is the time for that reform. The Pennsylvania Newspaper Association believes that Pennsylvania's access laws must be amended to include the following:
- Acknowledgment that records belong to the public
The open records law should make it clear that the public is entitled to know and be informed fully about the conduct and activities of government. Providing access to public records is an essential function of government agencies and an integral part of the fundamental duties of public officials and employees. - Improved definition of "public record" and a presumption of access
Records in the possession or control of a public agency must be presumed to be accessible to the public. The law, as is the case in most states, should include specific exemptions for records that are not public, such as records that would disclose an active police investigation or threaten someone's personal security. - Open "informational meetings"
Despite the Sunshine Act's requirements that agencies deliberate in public, agencies frequently take the position that "informational meetings" or preliminary discussions can be closed. In doing so, they are often cutting the public out of the only meaningful discussion on an issue. The Sunshine Act must be amended to make it clear that informational sessions are subject to the Act. - Burden of proof on agency
As it currently stands, the person seeking access must prove that he or she has a right to that access. In most states, however, the burden is on the agency to show that specific information is not public under the law. - Broader definition of "agency"
The definition of "agency" must include the General Assembly, state-related universities and any organization or entity that relies substantially on taxpayers' money. - Recording executive sessions
Sunshine Act violations are very difficult to prove, since the discussions at issue often take place behind closed doors. Agencies must be required to audiotape or videotape executive sessions. Not only would this lead to better compliance, it would also create a record that could be reviewed by a court. - Administrative appeal/Office of Access
Pennsylvania must create an Office of Access -- which could be located within an existing agency -- to hear appeals and furnish advisory guidelines, opinions and other appropriate information about the laws to both agencies and citizens. This model has been very successful in a number of states and has dramatically reduced the amount of litigation over these issues. It also provides citizens with a quicker, more cost-effective method of challenging agency denials. - Meaningful penalties
Although the open records law was amended in 2002 to increase the potential penalties for frivolous Right to Know Act denials or appeals, those penalties are rarely imposed. The fine for an intentional open meeting violation is only $100. The amounts for willful violations should be increased to at least $500 per violation. Agencies that deny access improperly must also be required to attend training sessions on the law. They should be tested on the Act's requirements until their actions are consistent with the law and the public's right to know.
The Pennsylvania Newspaper Association's draft legislative proposal, which incorporates all of the above, can be found at www.pa-newspaper.org or by calling Teri Henning at (717) 703-3076.
