Better Government Association

Better access to records the goal of pending changes to state law

By: Linda Finarelli, Staff Writer
06/20/2007

Pennsylvania may be standing on the brink of shedding its dubious reputation as a state with one of the weakest public records access laws. The Better Government Association ranks Pennsylvania 48th out of 50, with only Alabama and South Dakota considered worse.

The state House's Speaker's Commission on Legislative Reform unanimously recommended earlier this month that state and local government records be presumed public documents, rather than the reverse under the current Right-to-Know Law. The recommendation extends the law to the Legislature itself, which is now excluded. Five years ago, after about 40 years of no action, Pennsylvania's open records law was amended. At the time, the change was criticized as not going far enough to clarify whether or not records are public or private, but it did improve some access problems in terms of timeliness in obtaining records and cost.

The 2002 amendment did not get into presumption of whether records are open or not; the definition did not change, said Deborah Musselman, Pennsylvania Newspaper Association director of government affairs. The definition of a public record is very narrow in Pennsylvania, with just two categories of government records defined as public, she said. "This [recommendation] changes the definition."

Several bills under consideration in Harrisburg would widen the definition of an open record "so the presumption is the record is open unless it is exempted out of the definition," Musselman said. Exemptions would include personal information such as Social Security numbers and health status, trade secrets and specific homeland security measures, she said. State Rep. Josh Shapiro, D-153, co-chairman of the House Speaker's Commission on Legislative Reform, said Monday he will be taking the lead in drafting a bill soon to include recommendations by the commission.

The bill will "flip the presumption" and have exemptions consistent with proposed House Bill 443 and a proposal by Gov. Ed Rendell, he said, but will "clean up" the exemptions to include personal communications and e-mail to protect the confidentiality of individual constituents.

Two bills have already been introduced in the Senate, S.B. 765 by Sen. Jim Ferlo, D-38, and S.B. 1 by Sen. Dominic Pileggi, R-9, as well as House Bill 443 introduced by Rep. Tim Mahoney, D-51. PNA supports the Ferlo bill, which includes the presumption that records held by public agencies are public records and lists 20 categories of records not subject to disclosure, according to the PNA Web site. State Sen. Stewart J. Greenleaf, R-12, a longtime proponent of open records and co-sponsor of the Ferlo bill, said Tuesday, "They are the people's records, they should have access to them." Pileggi plans to broaden his bill to reverse presumption as well, and the PNA will be working with him and his staff to help amend that bill, Musselman said.

Acknowledging there may be some resistance to flipping the presumption, Musselman said police would like to keep broad discretion to not release information on incident reports that could jeopardize an investigation. The PNA would like to see police information standardized, she said.

The impetus to change the law is part of the reform commission's effort "to try to make government more transparent and open to the public," Shapiro said. "Citizens should have the right to know what's doing ... this is one way to do that." Shapiro said the bipartisan - 12 Republicans and 12 Democrats -vote by the commission was indicative of legislative support for changing the public records law.

"I think it [the vote] demonstrates a significant amount of support for it," he said. Greenleaf echoed, "I think there is a lot of support for it in the Senate."

"We're feeling very optimistic about where things stand at this point," Musselman said of the proposed changes to the Right-to-Know Law. "In the last couple years a number of things have gotten people's attention," in both local and state government, she said. "People are communicating they think things need to change."