Open-records law is official
Feb. 15, 2008
By JAN MURPHY, SHARON SMITH, TOM DOCHAT, DAVID WENNER,
REGGIE SHEFFIELD, DAN MILLER and CARRIE CASSIDY
Of The Patriot-News
Gov. Ed Rendell signed into law Thursday the first major overhaul of the state's open-records law in 51 years. The bill passed the House and Senate unanimously this week. It takes effect on Jan. 1 and strengthens what was ranked as one of the weakest open-records laws in the nation. "This is a day we can be proud of in Harrisburg and look back years from now and see it as a turning point in the relationship between citizens and their government," said Senate Majority Leader Dominic Pileggi, R-Delaware County.
The most notable change is that it makes open records the rule rather than the exception.
How could it affect you? Here's a look at several scenarios in which a business or resident might have a problem that can be solved using public records and how the new law would address that issue.
THE SCENARIO: You just moved to town and need to find a good day care center. You tour several, and they all look good.
THE PROBLEM: You contact the state Department of Public Welfare and ask to see inspection reports for your top choices.
THE NEW LAW: There shouldn't be a battle. The new law generally provides that any agency record is a public record unless it fits an exemption category. "It's going to go a long way toward releasing a lot of records they hold," said Harrisburg lawyer Craig Staudenmaier, who specializes in public-record cases.
THE SCENARIO: You are concerned about a restaurant's cleanliness.
THE PROBLEM: You want to look at the official report from the state or local agency that handles inspections but don't want to ask the restaurant owner.
THE NEW LAW: The law should provide easier access to health-related government inspections of restaurants. Counties and cities conduct regular inspections, but some have resisted making results available to the public. Under the law, it is presumed these records will be open to anyone who wants to see them, said Craig Staudenmaier.
THE SCENARIO: You want to get information about state contracts from the Net.
THE PROBLEM: You need the information as soon as possible.
THE NEW LAW: If it works as intended, you won't have to make a request in writing but can view the information on the Net, said Melissa Bevan Melewsky, media law counsel for the Pennsylvania Newspaper Association. Businesses can then print copies of the information.
THE SCENARIO: A disabled family member dies in a fire. You overhear police officers talking about how she waited for 911 to answer and was put on hold trying to report the fire.
THE PROBLEM: You want to see a record of when the call came in and how long it took before crews were dispatched.
THE NEW LAW: You can contact the 911 center and ask for a time-response log. This will provide the time the call came in, when the dispatcher notified local emergency crews to respond, and when crews arrived at the scene. You can ask the center for a recording of the 911 call, but the new law doesn't guarantee that it will be provided. If the center or a court determines public interest outweighs privacy concerns, the recording can be released.
THE SCENARIO: Your daughter attends Penn State and you are frustrated with rising tuition.
THE PROBLEM:You want to see if salaries of top university officials are what you would consider to be high.
THE NEW LAW: Penn State, as well as Pitt, Temple and Lincoln universities, will have to post on their Web site for at least seven years a list of their 25 highest-paid employees, officers and directors.
THE SCENARIO: You are a member of an anti-smoking group that wants convenience stores to stop selling tobacco to children. You come up with a marketing campaign: You will publicly announce which stores sell smokes to kids.
THE PROBLEM: You contact the state Department of Health and ask for a list of stores that the state has cited for violations. You want the information as soon as possible.
THE NEW LAW: The agency would have five business days to respond to your written request. It can get a 30-day extension to do research. If someone files an appeal and the case goes to court, it might take five years to obtain a record, said Harrisburg attorney Craig Staudenmaier, who specializes in public-record cases.
THE SCENARIO: You hear about a company that might build a development near your house.
THE PROBLEM: You know your municipality has building permits that are public records, but a permit has not been issued. You want to get a jump on understanding how this project could affect you, so you ask to see the applications for permits in your neighborhood.
THE NEW LAW: You might be able to see a completed application that is pending before a local government, said Melissa Bevan Melewsky, media law counsel for the Pennsylvania Newspaper Association. Under the old law, some municipalities didn't consider a document to be public until it had been approved by a local governing body, such as the township supervisors board or borough council. "There is an administration procedure, and now the burden is no longer on you. The agency has to show why it would be exempt under a list of 30 exceptions. If they can't prove their case, you win," Melewsky said.
THE SCENARIO: You learn that a zoning change could affect the open field across the street from your house because a developer wants to put in a shopping center. The elected officials commissioned an engineering study that concluded that the zoning change would not harm the community.
THE PROBLEM: You want to see the study but are told there are not enough copies. Your choices: You can read the study in the office and take notes or pay $1 a page to have it photocopied, even though it costs much less at a copying business. The study runs 67 pages.
THE NEW LAW: Photocopying fees for commonwealth agencies, boroughs and townships will be set by the Office of Open Records. The courts and the Legislature will set their own copying fees. In each case, the fees must be "based on prevailing fees for comparable duplication services provided by local business entities."
THE SCENARIO: You are concerned about the cleanliness of your favorite restaurant.
THE PROBLEM: You don't want to ask the restaurant owner, afraid you might offend her. You want to look at the official restaurant report from the state or local government that handles health inspections.
THE NEW LAW: It should provide easier access to health-related government inspections of restaurants. Some counties and cities, for example, conduct regular inspections. But some have resisted making full results available to the public. Under the new law, it is presumed these records will be open to anyone who wants to see them, said Craig Staudenmaier, a lawyer who specializes in right-to-know issues.
THE SCENARIO: You own a company that makes widgets and so does your competitor. You both apply for state loans and grants and job credits to support expansion and job creation efforts.
THE PROBLEM: Your competitor gets the help and you don't.
THE NEW LAW: As under the old law, all documents reflecting the decision, such as contract agreements and letters awarding the contract, are public records. Unlike the old law, all company applicants, even those who don't receive economic development funds, would be viewed as subject to records rules, according to Teri Henning, general counsel for the Pennsylvania Newspaper Association. Kevin Ortiz, a spokesman for the Pennsylvania Department of Community and Economic Development, said department lawyers are reviewing the impact of the law.
WHAT'S NOT INCLUDED? The law excludes up to 30 types of records, including:
• Records that likely would result in physical harm or jeopardize someone's security.
• Records that would jeopardize computer security.
• Social Security numbers, personal financial information, phone numbers, personal e-mail addresses, spouses' names, marital status and beneficiary or dependent information. Home addresses can be disclosed for adults, unless they are law enforcement officers or judges.
• Psychiatric or psychological history or disability records.
• Performance ratings or reviews of public employees.
• Unpublished lecture notes, manuscripts and articles, and creative works in progress by community college or state university faculty, staff or students.
• Academic transcripts of students and an individual applying to the state for professional licenses.
• Test questions and answers for schools and colleges.
• Records relating to noncriminal investigations, including the complaints, investigative materials and notes, and confidential sources.
• DNA and RNA records.
• Autopsy records.
• Correspondence between lawmaker and constituents.
© 2008 The Patriot-News — Reprinted with permission. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.