Prying the door open for records

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October 1, 2007

BY ROBERT D. RICHARDS The Tribune-Democrat Mon Oct 01, 2007, 09:48 AM EDT

Pennsylvania’s open records law has been ranked as one of the worst in the country. That sobering fact becomes even more troublesome when we recognize that the existing open records law – enacted just five years ago – is considered a vast improvement over the previous act, providing a glimpse of just how bad things actually could be.

Most people – government officials among them – would agree that open government is a good thing, at least in the abstract. After all, openness is part of the framework upon which this nation was founded.

The consensus often breaks down, however, when examining a set of particulars. Should a reporter be able to get a copy of a police investigation report? Can an ordinary citizen find out how much money the township supervisors are spending on business travel?

The open records law leaves a number of questions open – to interpretation, that is. And the devil clearly is in the details, not to mention the good offices of those whose job it is to release information.

If the officials charged with interpreting the act find it useful to stonewall a reporter or citizen seeking documents, they too often can seek comfort in the law’s substantive question marks, procedural gymnastics and enforcement difficulties.

With increasing and alarming frequency, people attempting to obtain documents or information from various branches of government are stymied in their efforts because some official prefers not to handle the request or hopes the requester will go away if enough hurdles are put in the way. Those people also might be thwarted by hefty redaction fees, copying costs or search delays.

In some cases, the open records statute is unclear. In other instances, subsequent case law may have rendered a provision invalid.

For instance, the Right to Know Act requires that people requesting access to records be residents of Pennsylvania.

The Third Circuit U.S. Court of Appeals recently found that a similar provision in Delaware’s Freedom of Information Act violated the Privileges and Immunities Clause of the U.S. Constitution. That federal appellate court’s decision is binding precedent in Pennsylvania, but it’s questionable how many officials in borough, township, county and state offices know that fact.

A new group – the Pennsylvania Freedom of Information Coalition – has formed in the state with the hope of elevating the level of open government.

Similar chapters of the FOIC operate successfully in other states. Primarily, these organizations help to educate citizens about their rights of access to government.

The battle for access, however, should not be left solely to interest groups.

Citizens can take matters into their own hands and get the information they’re entitled to, particularly when armed with proper information on the law.

Robert D. Richards is distinguished professor of journalism and law at Penn State, where he founded and codirects the Pennsylvania Center for the First Amendment. He also is vice president of the board of directors of the Pennsylvania Freedom of Information Coalition.

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