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Despite altered Right-To-Know law, barriers remain on path to info

Debra Erdley
| Monday, March 5, 2012

Dick Smith persuaded Bethlehem to pay for repairs to his week-old car, damaged when he hit a manhole cover that someone left askew on a residential street.

Karen Hirko is a step closer to solving the mystery of how Wilkes-Barre spent $1 million from a mystery donor.

And Barbara Razzano of New Castle eventually managed to pry loose records that strongly suggested thousands of dollars had been stolen from a Pop Warner football team.

Each used Pennsylvania's Right-to-Know law, which the Legislature revised from one of the nation's most restrictive in 2009.

People no longer need to prove documents are public records before government bodies must produce them. The law places the burden of proving records are not public on the government. Anyone denied information can appeal to an independent agency.

But three years later, no one is entirely happy. Among the frustrations:

> > State-related universities such as Penn State remain exempt from disclosure, as do documents an agency contends grew out of an investigation.

> > A court ruling requiring that people present legal arguments when appealing pits citizens against taxpayer-paid attorneys.

> > The law provides no sanctions for an agency's refusal to release public records.

> > Cash-strapped schools and municipalities often have a hard time meeting the law's five-day window to respond to records requests.

"The fact that public universities have a loophole in Pennsylvania is madness. That's indefensible," said Charles Davis, a University of Missouri professor and former head of the National Freedom of Information Coalition.

Pennsylvania, Delaware and Alaska are the only states in which open records laws provide such exemptions, said Terry Mutchler, executive director of Pennsylvania's Office of Open Records, the independent agency created by the law.

Attorney Ronald Barber, who represents the Tribune-Review and citizens in right-to-know appeals, said the permanent exemption for investigative records is disturbing.

"Under the federal Freedom of Information Act, investigative records are only kept secret if it matters, if disclosure of the investigative records would hamper an investigation," Barber said. "Under the Pennsylvania act, if an agency can plausibly say that it created these records as part of an investigation, it can keep them secret forever."

Legislative action would be needed to change that, said Mutchler, a lawyer and former journalist.

She said her office, which handled 4,100 appeals in three years, has few staffers to review appeals adequately. Its decisions are subject to appeal to state courts, and court rulings can have long-ranging impacts.

Legal arguments

Mutchler said a Commonwealth Court ruling on a Department of Corrections appeal of an inmate's case required all appeals to include legal arguments. Though a correct interpretation, she said, "it really changes the law for citizens." Her office now rejects a third of all appeals for that reason alone.

Kim deBourbon, executive director of the Pennsylvania Freedom of Information Coalition, said it puts Pennsylvania citizens, who file 95 percent of all appeals, at a disadvantage because "citizens are up against taxpayer-funded solicitors."

"For practical purposes, it puts us back where we were under the old law," said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association.

Even so, retiree Dick Smith used the law without a lawyer.

He was driving his 2011 Subaru Outback along a residential Bethlehem street on a sunny May morning when the he hit a manhole cover.

"The car had 169 miles on it," Smith said, recalling the sickening thud he heard before a tire went flat. Repairs for the tire and a bent rim cost $645.

Smith sought reimbursement from the city, claiming an unsafe condition had caused his accident. When officials denied the request, he called The Morning Call newspaper in Allentown. Columnist Paul Muschick suggested Smith file a Right-to-Know law request seeking records of any road or sewer work done in the area. If city officials knew about the problem, it could add weight to Smith's claim.

The city offered to pay for Smith's car repairs if he would withdraw his information requests.

"Everybody in government says it is the media that drives this law, and that is a flat-out inaccuracy. It is a citizen-driven law," Mutchler said.

Weak enforcement

Still, it's not always easy for citizens, even when they win, Razzano said.

She went to bat for a citizens group that suspected money was missing from a youth football league administered by the New Castle School District. Although the district eventually granted her right-to-know request, the group had to hire an attorney to force officials to produce the records.

"I was happy with the outcome, but I think the actual law should have a little more enforcement behind it," Razzano said.

The law's co-sponsor, Rep. Tim Mahoney, D-Fayette County, said that's a weakness he noticed.

"Until a judge puts someone in jail, I don't think anyone is going to take it seriously," Mahoney said. "We need to change to a culture of openness now."

Karen Hirko is awaiting records detailing bids and city council votes involving Wilkes-Barre's purchase of three firetrucks with an anonymous donor's $1 million. Officials rejected her request, claiming the purchase did not involve public money and no records existed, but she won an appeal.

On the other side of the aisle, lawyers who represent government agencies and municipalities say they struggle with the law's time limitations.

Robert M. Junker, an attorney with the Law Offices of Ira Weiss in Allegheny County, said many municipalities lack staff to respond quickly to complex requests. Unless a request involves something simple and clearly public, such as payroll, officials often invoke a 30-day extension to determine whether the law covers a request, he said.

Privacy concerns

In recent months, the courts have juggled appeals, citing privacy concerns.

Although the law exempted from disclosure the home addresses of minors, judges and law enforcement officers, public school teachers say it did not go far enough. In November 2010, the state Supreme Court issued an injunction barring the disclosure of home addresses of public school employees, pending its ruling on an appeal by a teachers union.

Barber likens the argument to calling the phone book a "clear and present danger."

Public officials' emails are another point of contention. An early court ruling exempted them from a public official's home computer. More recently in a Montgomery County case, Commonwealth Court required disclosure of such emails if they deal with agency business or if a quorum of a public board participated in the exchange.

"That was refreshing. Think of all the issues that could be hidden if all you had to do was keep them on your home email," said Craig J. Staudenmaier, a Harrisburg lawyer who is general counsel for the Pennsylvania Freedom of Information Coalition.

Staudenmaier said the law continues to evolve through appeals.

"The view of the Office of Open Records is if this is a 15-round fight, we've had a couple of knockdowns, but we're doing well," Mutchler said.

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