As part of Sunshine Week, a national effort to raise awareness of public records, the York Daily Record/Sunday News asked Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition, some questions about the state's new open records law, which is 21/2 months old:
Q: From what you've seen, has the new right-to-know law improved Pennsylvanians' ability to get public-agency documents? Why/why not?
A: Absolutely it has. You only have to read through the Final Determinations being issued by the Office of Open Records to see that a new era of openness is upon us. These are rulings the Office of Open Records is making in settling disputes, where citizens have been denied records and file an appeal.
For the first time, government agencies are being told they have not followed the law in denying access to records. Some of this is understandable, as agencies are dealing with the law for the first time, and there is naturally still some confusion about how to interpret certain provisions. But you'll find many cases where the agency clearly is trying to keep it "business as usual" when handling Right to Know requests, and are still denying records the way they have been for more than 50 years.
Q: Of the appeals that have been granted, what are the most significant in terms of establishing what is an open record in Pennsylvania, and why?
A: The most significant trend in the appeals that have been granted is that agencies are being told they must vigorously and substantively defend their decisions not to grant access.
... The most precedent-setting of the appeals to date:
--- In Meyerson vs. Chalfont Borough, the Office of Open Records ruled that a secretary's tape recording of a public meeting -- even if made only for the purposes of writing up the minutes -- is a public record and accessible to the public. There has been a lot of unwarranted confusion about this, with some agencies very reluctant to understand that there is no difference between a citizen being able to attend a meeting and hear what goes on and a citizen listening to a recording of the meeting. Some boards seem are fearful that making a tape recording public will expose them somehow, but it's hard to make that argument.
--- In Mollick vs. Worchester Township, the Office of Open Records granted a requester the right to copies of e-mails to and from the township supervisors. The OOR noted that the township didn't seem to even try to grant the multi-faceted request, but just denied it in its entirety. The township was told to provide the e-mails requested related to two specific properties. Most significantly, even though the requester also made a very broad request for e-mails "regarding any township business for the past five years," the Office of Open Records directed the township to provide a sampling of e-mails so the requester could refine his request.
What's particularly significant here is that the OOR stated the law does not require a requester to identify specific documents or subjects. Basically, this means public agencies are obligated to try in good faith to work with citizens to fill their requests for documents.
Q: Of the appeals denied, which are the most significant in terms of establishing what records people can't see, and why?
A: Overall, the denials have been fair in following the letter of the law, and citizens need to realize the Office of Open Records has to work within its framework.
A number of denials have made it clear that citizens can't make an agency create a record. This is a provision people came up against with the old law, and it remains in the new law. Citizens have to realize that the Right to Know Law establishes access to existing documents; they can't use the law to force an agency to answer questions or put together reports it does not have.
The open records law does not address how long records should be kept, for instance. In Ortiz vs. the Department of Public Welfare, the DPW was able to show that the 2007 document requested was properly destroyed in accordance with the state's records retention schedule.
There also are times when citizens simply have to take an agency at its word that a particular record does not exist, although in these cases the Office of Open Records is making agencies legally attest to this. In Kurzmiller vs. Shrewsbury Township, the township attested it simply did not have the requested 1099 tax form in its files.
... In another case -- Ayers vs. Wattsburg Borough -- a woman wanted the borough to give her a report showing what Web sites and instant messaging systems were being accessed on borough computers. She felt that since she could easily create an online history on her computer, that the borough should be able to do the same. The OOR responded that even though the borough might be able to create such a report, this doesn't create a responsibility for the borough to do so.
Q: If you could make a change to the new law, what would it be?
A: The fee provisions still need attention.
The provision allowing agencies to charge "market value" fees for copies of extensive datasets is problematic, for a number of reasons, but primarily because it sets up journalists and educational groups as a separate class of citizens who are not charged this "market value" cost.
I'm also hopeful that eventually, once things settle down, municipalities will start understanding that they can save themselves a whole lot of work by posting almost all of their regularly accessed records online and providing them to requesters electronically as PDFs. The existing maximum 25-cents-a-page copying fee is still way too high, and I'd hate to see agencies taking advantage of that fee schedule to (a) make money and (b) deter requests for large documents.
We've been urging requesters to make sure they request documents in electronic format, since agencies must provide them that way if they exist that way. But many requesters may not know this, and thus still face paying a lot of money for records, unnecessarily.