Pennsylvanians have better access to their government — but there's room to improve
March 14, 2010 | Filed in: Open
records | Right to Know
Law
By Michael Sadowski
(Stroudsburg) Pocono Record Writer
It's been more than a year since Pennsylvania enacted its new Right-to-Know law, but experts say it's going to be years before it gets perfected.
Case law and trial-and-error still are taking place across the state when citizens ask for — and expect to receive — government records they believe to be accessible to the public.
While officials familiar with the law admit there is room to improve it, everyone agrees on one thing — Pennsylvania is more open than it was before the Right-to-Know changes.
"Who knows? It may take 10 years," said Delaware Water Gap resident Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition. "We all knew it would be a little rocky because the state was so sad before. No question about it, we're better off now."
The Right-to-Know law went into effect Jan. 1, 2009. It established a system of how government agencies and offices must respond to a public records request. It also gave citizens a standard form to request records.
The biggest change from the former law is a shift in the burden of proof. Under the previous law, anyone seeking records had to prove why they thought the records were open. Now, every record is presumed to be open. When a records request is denied, the agency must prove why the record isn't public.
If the agency denies the request, the decision can be appealed to the Office of Open Records in Harrisburg. If either side disagrees with the office's decision — which is legally binding to the government agency — it can be appealed to the Court of Common Pleas or the Commonwealth Court.
Terry Mutchler, executive director of the open records office and a Marshalls Creek native, said the shift in the burden of proof is what has made the law such an effective change over the previous system.
Already, she said, Pennsylvania is much more well thought of than it had been, as officials have been asked by other states — Washington, Ohio and Virginia — to help craft similar laws.
"If you went to your bank and asked to take out $100 and they asked, 'Why?' you would flip," she said. "When you walk into your local government office, you should be equally chagrined if they ask why you want to see what you're asking for. That's the best way to describe it."
There are inroads to be made on each side. The purpose of the law is to keep ordinary citizens out of court, but about 120 cases ended up in county or state court since the law started. That's about 9 percent of the cases the Open Record Office has ruled on. There is no record of how many Right-to-Know requests have been filed.
De Bourbon, a former editor at the Pocono Record, said the law leaves a little too much room for a government agency simply to appeal any decision from the Office of Open Records.
"Then you're back to square one, where we were for years," she said. "Ordinary citizens having to go to court and pay a lawyer, just to get the public records they're entitled to."
Mutchler admitted there is a "gap" in the process but said there is still a learning curve. One thing the office has done is made available a sample complaint on its Web site for citizens if they believe a court proceeding is necessary.
Citizens have also abused the Right-to-Know law as a means to harass public officials, Mutchler said. She said she has seen cases where citizens level nearly impossible Right-to-Know requests just for the sole purpose of making busywork for government officials.
"There was a government agency outside of Philadelphia that received more than 300 Right-to-Know requests in three months," Mutchler said. "When you do things like that, it just taints the law."
Locally, it doesn't seem like there have been such instances, even though Mutchler said the volume of requests in Monroe County have been "high."
Greg Christine, Monroe County's open records officer, said about 50 Right-to-Know requests have been filed since the law took effect, and most have been run-of-the-mill. Fewer than five requests, he said, were denied.
He said there also have been about 100 phone calls the office has taken that he's simply been able to answer without an official Right-to-Know request.
"It's gone reasonably well," he said. "I anticipated a lot more contentious requests. We try to take a very simple view — to make everything we have accessible."
One of the busiest agencies has been East Stroudsburg Area School District. It has fielded 71 official Right-to-Know requests, according to Eric Forsyth, the district's open records officer.
The district even found itself in county court when the Office of Open Records judged it should release the packet of notes distributed to each school board member. It appealed to the Court of Common Pleas, and Monroe County Judge Ronald Vican found the district did not have to turn over the board packets as public records.
Pocono Mountain School District has been in court twice over appeals. Both times, Vican overturned the Open Records Office ruling.
Forsyth attributed the school district's high volume of requests to people looking for information about the district's building projects. He said the district is proud that it has been able to meet the five-day deadline for every request, even if it has to ask for a 30-day extension.
"We believe every person is entitled to a response within five days," he said. "If we have asked for extensions, most people have respected that. We haven't had a problem with the majority of requests."
In honor of Sunshine Week, the national effort to stress the importance of open government, here is the step-by-step process for filing a Right-to-Know request:
You may file a request through fax, e-mail, in person or by mail. Keep a copy of what you file; you'll need it if your request is denied.
Make sure the request is addressed to the agency's Right-to-Know officer. Every public agency is required to have one.
Within five business days, the agency must respond to your request. It can either grant the request and release the information, deny the request in writing or invoke a 30-calendar-day extension.
If your request is denied, you may appeal that decision to the open records office within 15 days of the denial.
The records office then has 30 days from when it receives the appeal to make a ruling. Its decision is legally binding.
If either side is displeased with the ruling, it has 30 days to file an appeal in the court system.
Much of the information citizens seek is available without a Right-to-Know request, said state Office of Open Records executive director Terry Mutchler. A simple inquiry could save time, effort and resources on both sides.
"Don't file a Right-to-Know request first," she said. "Call your township solicitor, secretary, whoever, and ask for a copy of whatever record you are looking for. Don't go in swinging. You need to recognize that many agencies are overworked and understaffed as it is."
(Stroudsburg) Pocono Record Writer
It's been more than a year since Pennsylvania enacted its new Right-to-Know law, but experts say it's going to be years before it gets perfected.
Case law and trial-and-error still are taking place across the state when citizens ask for — and expect to receive — government records they believe to be accessible to the public.
While officials familiar with the law admit there is room to improve it, everyone agrees on one thing — Pennsylvania is more open than it was before the Right-to-Know changes.
"Who knows? It may take 10 years," said Delaware Water Gap resident Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition. "We all knew it would be a little rocky because the state was so sad before. No question about it, we're better off now."
The Right-to-Know law went into effect Jan. 1, 2009. It established a system of how government agencies and offices must respond to a public records request. It also gave citizens a standard form to request records.
The biggest change from the former law is a shift in the burden of proof. Under the previous law, anyone seeking records had to prove why they thought the records were open. Now, every record is presumed to be open. When a records request is denied, the agency must prove why the record isn't public.
If the agency denies the request, the decision can be appealed to the Office of Open Records in Harrisburg. If either side disagrees with the office's decision — which is legally binding to the government agency — it can be appealed to the Court of Common Pleas or the Commonwealth Court.
Terry Mutchler, executive director of the open records office and a Marshalls Creek native, said the shift in the burden of proof is what has made the law such an effective change over the previous system.
Already, she said, Pennsylvania is much more well thought of than it had been, as officials have been asked by other states — Washington, Ohio and Virginia — to help craft similar laws.
"If you went to your bank and asked to take out $100 and they asked, 'Why?' you would flip," she said. "When you walk into your local government office, you should be equally chagrined if they ask why you want to see what you're asking for. That's the best way to describe it."
There are inroads to be made on each side. The purpose of the law is to keep ordinary citizens out of court, but about 120 cases ended up in county or state court since the law started. That's about 9 percent of the cases the Open Record Office has ruled on. There is no record of how many Right-to-Know requests have been filed.
De Bourbon, a former editor at the Pocono Record, said the law leaves a little too much room for a government agency simply to appeal any decision from the Office of Open Records.
"Then you're back to square one, where we were for years," she said. "Ordinary citizens having to go to court and pay a lawyer, just to get the public records they're entitled to."
Mutchler admitted there is a "gap" in the process but said there is still a learning curve. One thing the office has done is made available a sample complaint on its Web site for citizens if they believe a court proceeding is necessary.
Citizens have also abused the Right-to-Know law as a means to harass public officials, Mutchler said. She said she has seen cases where citizens level nearly impossible Right-to-Know requests just for the sole purpose of making busywork for government officials.
"There was a government agency outside of Philadelphia that received more than 300 Right-to-Know requests in three months," Mutchler said. "When you do things like that, it just taints the law."
Locally, it doesn't seem like there have been such instances, even though Mutchler said the volume of requests in Monroe County have been "high."
Greg Christine, Monroe County's open records officer, said about 50 Right-to-Know requests have been filed since the law took effect, and most have been run-of-the-mill. Fewer than five requests, he said, were denied.
He said there also have been about 100 phone calls the office has taken that he's simply been able to answer without an official Right-to-Know request.
"It's gone reasonably well," he said. "I anticipated a lot more contentious requests. We try to take a very simple view — to make everything we have accessible."
One of the busiest agencies has been East Stroudsburg Area School District. It has fielded 71 official Right-to-Know requests, according to Eric Forsyth, the district's open records officer.
The district even found itself in county court when the Office of Open Records judged it should release the packet of notes distributed to each school board member. It appealed to the Court of Common Pleas, and Monroe County Judge Ronald Vican found the district did not have to turn over the board packets as public records.
Pocono Mountain School District has been in court twice over appeals. Both times, Vican overturned the Open Records Office ruling.
Forsyth attributed the school district's high volume of requests to people looking for information about the district's building projects. He said the district is proud that it has been able to meet the five-day deadline for every request, even if it has to ask for a 30-day extension.
"We believe every person is entitled to a response within five days," he said. "If we have asked for extensions, most people have respected that. We haven't had a problem with the majority of requests."
Filing a Right-to-Know request
In honor of Sunshine Week, the national effort to stress the importance of open government, here is the step-by-step process for filing a Right-to-Know request:
You may file a request through fax, e-mail, in person or by mail. Keep a copy of what you file; you'll need it if your request is denied.
Make sure the request is addressed to the agency's Right-to-Know officer. Every public agency is required to have one.
Within five business days, the agency must respond to your request. It can either grant the request and release the information, deny the request in writing or invoke a 30-calendar-day extension.
If your request is denied, you may appeal that decision to the open records office within 15 days of the denial.
The records office then has 30 days from when it receives the appeal to make a ruling. Its decision is legally binding.
If either side is displeased with the ruling, it has 30 days to file an appeal in the court system.
Much of the information citizens seek is available without a Right-to-Know request, said state Office of Open Records executive director Terry Mutchler. A simple inquiry could save time, effort and resources on both sides.
"Don't file a Right-to-Know request first," she said. "Call your township solicitor, secretary, whoever, and ask for a copy of whatever record you are looking for. Don't go in swinging. You need to recognize that many agencies are overworked and understaffed as it is."