Court challenges could change the public's broad access to government
By Dan Berrett
Pocono Record Writer
The public's right to know — which was enshrined in a robust new Pennsylvania law that took effect eight months ago — has become the target of roll-back efforts by local and state agencies.
In Harrisburg, the General Assembly has introduced several bills to change the new law. Some provisions would deny access to the home addresses or date of birth of school employees, in what has been characterized as a bid to protect privacy and safety.
A Commonwealth Court judge also issued a temporary injunction against releasing home addresses of school personnel until the court issues a further order.
Locally, East Stroudsburg and Pocono Mountain school districts are looking to overturn decisions made by the Pennsylvania Office of Open Records (OOR). East Stroudsburg University is appealing to the Commonwealth Court a ruling granting the Pocono Record partial access to records held by its foundation.
They are among the 48 appeals and reviews referred to the courts statewide, reflecting challenges to 7 percent of the final determinations rendered so far by OOR.
The OOR was established under the new Right to Know Law, which remedied what advocates had said was the state's long-standing and weak access to information held by public agencies.
Most significantly, the new law placed the burden of proof on the agency to prove why a document should remain confidential. Previously, the person requesting a record had to justify, without having even seen it, why it should be made available.
Now, when agencies deny requests, citizens can appeal the decisions directly to the OOR without having to go to court.
East Stroudsburg and Pocono Mountain will appear in Monroe County's Court of Common Pleas on Aug. 25 to appeal decisions made by OOR in favor of citizens. Arguments will take place in the chambers of President Judge Ronald Vican — not in open court.
The dispute in East Stroudsburg orbits around OOR's ruling in favor of the Rev. Andre Felder, who asked for "unrestricted electronic copies" and "supporting e-mails" of communications between the superintendent, administrative staff, and board members between Jan. 1 and March 18, when he filed his request.
The district originally denied Felder's request, invoking one of the 30 exceptions to the law. The one cited by East Stroudsburg allows agencies to block access to records of predecisional deliberations, or the internal debate on matters it is considering.
OOR rejected the district's blanket denial of all correspondence from thhat period under the predecisional exception, calling it "implausible." If used broadly enough, this use of the exception could frustrate the basic intent of the new law, the OOR said.
In June, East Stroudsburg filed an appeal in the county's Court of Common Pleas objecting to the OOR's decision.
OOR confused two meanings of the term "deliberation," the district argued. The first definition of the word, which the district thinks should remain private, is the "informal sharing of information, and informal discussion of agency business," wrote Christopher Brown, the school district's lawyer. The other definition refers to discussions entered into for the purpose of making a decision, which must be done openly according to the Sunshine Act.
Brown argued that the ruling's practical effect would be burdensome, and would wrongly subject informal sharing of information to public scrutiny. Only documents that record an agency's "transaction or activity" should be public, he wrote in his court filing.
The dispute has been watched closely by open records advocates and others.
"Every communication from a superintendent to the board is — in fact and according to the law — a matter of public record," said Kim McNally de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition (and former editor of this newspaper). The burden is on the district to prove that each record should not be disclosed.
Another appeal filed successfully against the district to the OOR, but not appealed to the Court of Common Pleas, was from a citizen, Devin Day. It points out the friction that can occur over such requests.
He was requesting copies of invoices and payments made to Charles Sweet, a lawyer for the district, for a letter and communications regarding that letter, which pertained to Day's ejection from a school board meeting in January.
The document he received was almost entirely redacted, except for the hours worked, the rate per hour, and the total amount billed.
East Stroudsburg argued that the remaining information under the invoices was protected under attorney-client privilege, but it was overruled because it did not offer enough evidence that the records needed protection.
"The words 'attorney-client privilege' or 'legal advice' are not some talisman that excuses the agency from the burden it must meet to withhold records," the OOR wrote, while also noting that the attorney-client relationship deserved to be guarded.
Eric Forsyth, the district Right to Know officer, has said previously that the district favors openness, and has pointed to the hundreds of pages of invoices and financial expenditures that are routinely put online before board meetings.
But de Bourbon took a different view. "In a nutshell, I think what we have here is a public agency that may be having a hard time coming to grips with the concept of government transparency," she said in an e-mail.
"They are trying to use the new law the way they used the old law, as a reason not to make records accessible, looking for ways they can use the law to withhold records ... instead of using it to become more accountable."
Pocono Mountain is trying to overturn an OOR decision rendered in favor of a citizen, Mary Ann Zeldenrust, who requested logs for mileage, vehicle use, mileage allowances, gas pumps, odometers, and other information, including the W-2 forms issued to district employees.
The district provided everything except the W-2 forms. After reviewing the case, the OOR ordered the district to furnish those, too.
In its argument, submitted in June to the Monroe County Court of Common Pleas, district lawyer Deirdre Kamber argued that W-2 forms are not public because they reveal personal information.
" (It) unduly impinges on the privacy interests of the employees identified in this appeal, as well as all other public employees," she wrote.
But the OOR disagreed, ruling in this case and several others that W-2 forms issued by public agencies are subject to disclosure, while allowing for the redaction of sensitive personal information, such as Social Security numbers.
"The (Right to Know) Law provides access to almost all financial documents of a public agency," de Bourbon said. "It seems pretty clear to me that the district was out-and-out wrong to say here that mileage reimbursement figures as reflected on a W-2 are somehow exempt as 'personal financial information.'"
Dwight Pfennig, superintendent of Pocono Mountain, referred to the dispute, which has been the subject of paid advertisements and letters to the editor in this newspaper. "That was, in fact, not the intent of the law," he said, defending the district's appeal of the OOR decision.
The district also has presented reports to its school board outlining how much staff time and legal fees have been involved in responding to open records requests. An estimate three months ago put the bill at 100 hours of staff time and nearly $6,000 in legal fees.
Pfennig added during a board meeting Wednesday night that the law seemed to have taken on a life of its own. "It's a mess," he said.
To de Bourbon, such reactions are to be expected, given the sorry state of disclosure that existed in Pennsylvania for so long. "Many agencies throughout the state are so accustomed to not having to provide information to citizens that the new law is understandably a huge and shocking change," she said.
Pocono Record Writer
The public's right to know — which was enshrined in a robust new Pennsylvania law that took effect eight months ago — has become the target of roll-back efforts by local and state agencies.
In Harrisburg, the General Assembly has introduced several bills to change the new law. Some provisions would deny access to the home addresses or date of birth of school employees, in what has been characterized as a bid to protect privacy and safety.
A Commonwealth Court judge also issued a temporary injunction against releasing home addresses of school personnel until the court issues a further order.
Locally, East Stroudsburg and Pocono Mountain school districts are looking to overturn decisions made by the Pennsylvania Office of Open Records (OOR). East Stroudsburg University is appealing to the Commonwealth Court a ruling granting the Pocono Record partial access to records held by its foundation.
They are among the 48 appeals and reviews referred to the courts statewide, reflecting challenges to 7 percent of the final determinations rendered so far by OOR.
The OOR was established under the new Right to Know Law, which remedied what advocates had said was the state's long-standing and weak access to information held by public agencies.
Most significantly, the new law placed the burden of proof on the agency to prove why a document should remain confidential. Previously, the person requesting a record had to justify, without having even seen it, why it should be made available.
Now, when agencies deny requests, citizens can appeal the decisions directly to the OOR without having to go to court.
East Stroudsburg and Pocono Mountain will appear in Monroe County's Court of Common Pleas on Aug. 25 to appeal decisions made by OOR in favor of citizens. Arguments will take place in the chambers of President Judge Ronald Vican — not in open court.
The dispute in East Stroudsburg orbits around OOR's ruling in favor of the Rev. Andre Felder, who asked for "unrestricted electronic copies" and "supporting e-mails" of communications between the superintendent, administrative staff, and board members between Jan. 1 and March 18, when he filed his request.
The district originally denied Felder's request, invoking one of the 30 exceptions to the law. The one cited by East Stroudsburg allows agencies to block access to records of predecisional deliberations, or the internal debate on matters it is considering.
OOR rejected the district's blanket denial of all correspondence from thhat period under the predecisional exception, calling it "implausible." If used broadly enough, this use of the exception could frustrate the basic intent of the new law, the OOR said.
In June, East Stroudsburg filed an appeal in the county's Court of Common Pleas objecting to the OOR's decision.
OOR confused two meanings of the term "deliberation," the district argued. The first definition of the word, which the district thinks should remain private, is the "informal sharing of information, and informal discussion of agency business," wrote Christopher Brown, the school district's lawyer. The other definition refers to discussions entered into for the purpose of making a decision, which must be done openly according to the Sunshine Act.
Brown argued that the ruling's practical effect would be burdensome, and would wrongly subject informal sharing of information to public scrutiny. Only documents that record an agency's "transaction or activity" should be public, he wrote in his court filing.
The dispute has been watched closely by open records advocates and others.
"Every communication from a superintendent to the board is — in fact and according to the law — a matter of public record," said Kim McNally de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition (and former editor of this newspaper). The burden is on the district to prove that each record should not be disclosed.
Another appeal filed successfully against the district to the OOR, but not appealed to the Court of Common Pleas, was from a citizen, Devin Day. It points out the friction that can occur over such requests.
He was requesting copies of invoices and payments made to Charles Sweet, a lawyer for the district, for a letter and communications regarding that letter, which pertained to Day's ejection from a school board meeting in January.
The document he received was almost entirely redacted, except for the hours worked, the rate per hour, and the total amount billed.
East Stroudsburg argued that the remaining information under the invoices was protected under attorney-client privilege, but it was overruled because it did not offer enough evidence that the records needed protection.
"The words 'attorney-client privilege' or 'legal advice' are not some talisman that excuses the agency from the burden it must meet to withhold records," the OOR wrote, while also noting that the attorney-client relationship deserved to be guarded.
Eric Forsyth, the district Right to Know officer, has said previously that the district favors openness, and has pointed to the hundreds of pages of invoices and financial expenditures that are routinely put online before board meetings.
But de Bourbon took a different view. "In a nutshell, I think what we have here is a public agency that may be having a hard time coming to grips with the concept of government transparency," she said in an e-mail.
"They are trying to use the new law the way they used the old law, as a reason not to make records accessible, looking for ways they can use the law to withhold records ... instead of using it to become more accountable."
Pocono Mountain is trying to overturn an OOR decision rendered in favor of a citizen, Mary Ann Zeldenrust, who requested logs for mileage, vehicle use, mileage allowances, gas pumps, odometers, and other information, including the W-2 forms issued to district employees.
The district provided everything except the W-2 forms. After reviewing the case, the OOR ordered the district to furnish those, too.
In its argument, submitted in June to the Monroe County Court of Common Pleas, district lawyer Deirdre Kamber argued that W-2 forms are not public because they reveal personal information.
" (It) unduly impinges on the privacy interests of the employees identified in this appeal, as well as all other public employees," she wrote.
But the OOR disagreed, ruling in this case and several others that W-2 forms issued by public agencies are subject to disclosure, while allowing for the redaction of sensitive personal information, such as Social Security numbers.
"The (Right to Know) Law provides access to almost all financial documents of a public agency," de Bourbon said. "It seems pretty clear to me that the district was out-and-out wrong to say here that mileage reimbursement figures as reflected on a W-2 are somehow exempt as 'personal financial information.'"
Dwight Pfennig, superintendent of Pocono Mountain, referred to the dispute, which has been the subject of paid advertisements and letters to the editor in this newspaper. "That was, in fact, not the intent of the law," he said, defending the district's appeal of the OOR decision.
The district also has presented reports to its school board outlining how much staff time and legal fees have been involved in responding to open records requests. An estimate three months ago put the bill at 100 hours of staff time and nearly $6,000 in legal fees.
Pfennig added during a board meeting Wednesday night that the law seemed to have taken on a life of its own. "It's a mess," he said.
To de Bourbon, such reactions are to be expected, given the sorry state of disclosure that existed in Pennsylvania for so long. "Many agencies throughout the state are so accustomed to not having to provide information to citizens that the new law is understandably a huge and shocking change," she said.