Citizens’ Lobby Applauds Passage of Sweeping Open Records Law; Enforcement Questions Remain
For Immediate Release
February 12, 2008
Barry Kauffman, 717.232.9951
CITIZENS’ LOBBY APPLAUDS PASSAGE OF SWEEPING
OPEN RECORDS LAW
Enforcement Questions Remain
More than 17 years of work by Common Cause/PA and its citizen advocates bore fruit today when the Senate concurred with House amendments to Senate Bill One, a new law that will provide citizens with vast new rights of access to government documents. Common Cause/PA Executive Director, Barry Kauffman, said “We are viewing the reform glass as more than half full, and believe passage of this new law will reinforce efforts for additional government reforms. However, we will have to remain vigilant to ascertain whether the law is effectively enforced.”
SB-1 accomplishes many of the open records goals that the citizens’ lobby had pursued. The new law:
Covers all executive branch, independent, and local government agencies, and for the first time partially includes the Legislature;
makes it the “rule” rather than the exception that records are accessible;
places the burden of denying access on the agency;
encompasses many more records; and
gives citizens more timely and inexpensive access to public records.
However, this victory is not 100% complete. It comes with some loopholes that raise concerns. Several key elements are still missing from this new law. The brightest surviving red flags involve enforcement and fees for obtaining documents. For example, the new law
Does not provide a truly independent agency to administer the law or hear appeals of refusals of requests for records. The Open Records Office instead is placed within an executive branch agency (Dept. of Community and Economic Development) noted for its close relations with local government;
Fails to fully cover the Legislature. The presumption of openness for records of the legislature is limited to 19 specified categories. Furthermore, when a citizen must appeal a denial of access to Legislative records, the “Appeals Officer” is an appointed employee of the very body that denied them access in the first place;
Fails to include strong incentives for compliance, or effective penalties for non-compliance. Some consider the enforcement standards toothless since they contain no criminal penalties for officials and employees who repeatedly or regularly violate the law, and the civil penalties, especially for large agencies, are insufficient to ensure compliance; and
The limitations on fees are sufficiently nebulous to permit agencies to charge numerous nuisance fees that could financially restrict citizens’ access to records.
The bottom line is, Pennsylvanians have broad new rights of access to government records — but we will have to wait and see whether those rights are backed with the necessary enforcement, or will the remaining loopholes in the law consume the new rights. Enormous pressure now will be placed on the back of the director of the new open records office, as well as the legislative and judicial officers charged with making this new law operate successfully.
Common Cause/PA expresses its gratitude for the determination and endless hours of work committed to this endeavor by key legislators and their staff. Legislators deserving special recognition include Rep. Tim Mahoney, Rep. Josh Shapiro, and Sen. Dominic Pileggi.