Protect your right to know
Pennsylvania’s Right-To-Know Law, which ensures citizen access to public records, is under assault in Harrisburg, explains government-transparency attorney TERRY MUTCHLER
Last week, tennis pro Tim Smyczek missed the opportunity to play at Wimbledon because he didn’t read his email carefully. He ended up in Winnetka, Ill., instead of Britain.
Pennsylvanians will get the same sinking feeling Smyczek experienced if they don’t read the fine print in some bills rattling around Harrisburg that would alter the state’s Right-To-Know Law — the law that enables citizens to hold their elected officials accountable by guaranteeing public access to government records.
The Right-To-Know Law allows citizens to know, for example, how much the school superintendent gets paid, why a police officer was fired, how much the city pays for attorneys who contribute to the campaigns of council members. A perfect example: The Office of Open Records recently ruled that the Right-To-Know Law requires public disclosure of the tax or other incentives Gov. Tom Wolf’s administration has promised Amazon to set up its second headquarters in Pittsburgh.
The Right-To-Know Law is critical to the health of our commonwealth and was strengthened 10 years ago with a sweeping rewrite. Under the current law, all government records are presumed public, and when citizens are denied access, they can appeal to the independent Office of Open Records, which I started in 2008.
At first, it was just me sitting in a cubicle with a copy of the law. Now, the office has 20 employees and a $2 million budget, and hundreds of thousands of public records have been released that, under the old law, would have stayed locked in government cabinets.
For instance, Right-To-Know Law requests revealed a government agency that kept three workers on the payroll for months after they had been fired, a school that served food to students that was past its expiration date and where off-duty members of the state police were moonlighting. There are thousands and thousands of such examples.
In 2008, Pennsylvania was ranked the 49th worst state for government transparency by the national Freedom of Information Coalition. After the rewrite of the law and the slow building of open-government case law, Pennsylvania climbed up the ranks. By 2014, Pennsylvania was ranked No. 14.
Much of the current right-toknow legislation being considered in Harrisburg would widen the scope of the law and improve procedures. But the fine print spells trouble, both in what the bills say and in what they don’t say.
The most important issue the bills don’t address is the criminal investigation exception in current law. In most states, once an investigation is closed, citizens can access limited information. But Pennsylvanians are handcuffed. The commonwealth is one of the few state
that seal these records for eternity.
The Pennsylvania Supreme Court has held that the Right-To-Know Law is “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions.” If records are sealed forever, how can a citizen scrutinize the actions of public officials, much less hold them accountable?
Perhaps the worst aspect of these bills, though, are provisions related to “third-party records.”
Now, if a government agency contracts with a private company to perform governmental work, records related to that work are accessible. Pennsylvania has the most aggressive reach of any state when it comes to these types of records. This stems from a case involving allegations that an official at East Stroudsburg University was trading sex for scholarships.
A reporter for the Pocono Record attempted to get records from the university, which is covered by the Right-To-Know Law as a state-owned institution. Because the records were held by the university’s foundation, a private entity, the university said they were not public. The Office of Open Records held that the records indeed were public because the foundation was performing governmental work under contract to the university.
The courts went on to uphold that seminal decision so that today, when private companies do government business, the records of their work must be made accessible to the public. But, if pending legislation in Harrisburg is adopted, only the contract between private and government parties would be considered a public record, leaving citizens in the dark as to how that contract was carried out.
We Pennsylvanians must jealously guard our right to know what our elected officials and their appointees are up to. We must insist that our legislators do not dilute the Right-To-Know Law. We must not wake up one day to discover that we, like Tim Smyczek, did not pay close enough attention and ended up in a place we do not want to be.