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  • ** ADVANCE FOR TUESDAY DEC. 23 ** Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition, is photographed at Delaware Water Gap, Pa., home on Thursday, Dec. 17, 2009. A new test of how government agencies respond to records requests shows that a year after Pennsylvania's revamped Right-to-Know Law took effect, it may be transforming attitudes among public officials about the public documents and information under their control. (AP Photo/David Kidwell)
Tuesday, March 16, 2010

Open records law still a work in progress

Sunshine Week

It’s a pretty good law. But having a good law and having a universally good “open government” attitude across the state are two different things.

Pennsylvania’s new “Right to Know Law” took effect Jan. 1, 2009, more than a year ago. Has it been successful? It depends whom you ask and how you measure success when it comes to citizens being able to keep track of what their government is doing.

The new law gives everyone the right to see and copy records held by all local and state governments and agencies across the state. That’s thousands of municipalities, counties, school districts, universities, bureaus, departments, commissions, boards and other public entities. There is no way to track how many requests for records have been submitted under the new law or how many of those requests have been granted or denied.

All we can measure is the number of appeals that have been made under the new law to the state Office of Open Records – the new state agency charged with deciding who is right when those asking to see government records believe they have been denied for no good reason.

The OOR received 1,159 appeals in its first year, the vast majority from citizens trying to get information from their town or county government or school district. The new law created this office, and that is reason enough to celebrate, as now people have somewhere to turn when they are told they have no right to know what their government is up to.

But it’s far from a perfect system. One of the biggest problems is that when the OOR sides with citizens and grants access to records, the government agency may fight that decision by going to court, forcing the citizens to defend themselves against taxpayer-funded government attorneys.

It’s to be expected, of course, that any new law must be tested and refined through the courts. There are many provisions of the Right to Know Law that do need interpretation and clarification.

But the state judicial system must find a way to make it easier for people who, by simply following the law and exercising their right to know, find themselves in court, going head to head with the government on public records issues.

It’s also frustrating that local government compliance with the new law still is so spotty. The Pennsylvania Freedom of Information Coalition’s online forum handles more than 300 inquiries a year from people – citizens and elected officials alike – who have questions about the state’s open records and open meetings laws.

And it’s clear from the questions and problems being posted that the new law has done little in some parts of Pennsylvania to open up official attitudes and understanding.

Another clear indicator that the message has not yet gotten out to all is our online audit of every county in the state. The new law requires all public agencies to post right-to-know information on their Web sites, if they have one.

It’s very disheartening that more than a year after the law took effect, less than half of Pennsylvania’s counties are in full compliance with this requirement. Out of the 66 counties with Web sites, only 27 (41 percent) are obeying the law by making it easy for people to find out how to get government records.

Fifteen counties (24 percent) have absolutely no right-to-know information online, at least not that we could find after a reasonable amount of searching.

Even more disturbing is the number of counties posting information that is clearly wrong or outdated. Centre County offers a form that asks if the requester is a resident of Pennsylvania, which is no longer a requirement for open records requests. Clearfield County states there is a $7 fee for each 15 minutes it takes to retrieve or redact records, a fee that is not permitted under an Office of Open Records directive.

Three counties – Delaware, Fulton and Mercer – state that they issue their own decisions on appeals, although under the new law only the Office of Open Records has the authority to hear appeals when people disagree with a local agency’s denial of records.

So, there is still much to be done. Although our law is much improved, and in many ways provides a model of public access, it will be years before open-government thinking becomes second nature to all of our public servants.

While judges, and perhaps the Legislature, continue to work out some of the kinks in the law, citizens can help the cause by learning about their rights to access under the new law and holding their government agencies accountable for following through.

Kim de Bourbon is executive director of the Pennsylvania Freedom of Information Coalition, a nonprofit group that helps citizens understand and use the state’s open records and open meetings laws through its Web site at www.pafoic.org. She can be reached at info@openrecordspa.org.