After complaints, Chester revamps open records process
CHESTER >> The city has taken steps improve its efficiency in handling open records requests following a Dec. 3 final determination from the Pennsylvania Office of Open Records, which found the city to be acting in bad faith. The determination put Chester city government on a shortlist of agencies to receive such a designation by the OOR, preceded only by the City of Reading.
At Monday’s reorganization meeting, city council appointed City Clerk Candice Thompson to also handle the vacant position of Open Records Officer. It is in the process of appointing a member of the Chester Police Department to a new open records officer position for the department, according to city Solicitor Ken Schuster.
“It sounds like taking the issue very seriously, as they should,” state Office of Open Records Executive Director Erik Arneson said Tuesday by phone. “Those seem like they will be positive steps going forward; that sounds like good news.”
The finding of bad faith came in a Dec. 3 final determination on a request for city ordinances first submitted Oct. 19. The request was the eleventh since January 2016 that the city or its police department (on two of the 11 occasions) did respond to an initial request for documents then did not participate in the OOR’s appeal process.
“I believe bad faith is not the proper term,” said Schuster. “I don’t believe that the city intentionally ignored requests, but rather, due to the inordinate amount of requests, was just not humanly possible to answer these in a timely fashion.”
Schuster attributed this to the volume of requests combined with temporary leave periods for former Open Records Officer Janell Brown throughout
2018. Schuster said Brown entered an indefinite leave “about one month” ago.
The December determination listed 10 previous instances since January 2016 in which the city failed to respond to an initial request then failed to participate in the appeal process. Of those cases, one occurred in 2016; three in
2017; and six in 2018. “The majority of (cited cases) fall within the period our open records officer was unavailable,” said Schuster. “We always kept up with everything perfectly … it just all caught up.”
“We feel that having two open records officers will allow us to answer these timely and efficiently,” Schuster said of the decision to give the Chester Police Department a dedicated open records position for department-specific requests.
While the OOR may deem an agency to have acted in bad faith in its adherence to the state Right to Know law, it is up to the courts to determine sanctions against violations. According to Arneson, fines are limited to $1,500, though orders to pay plaintiffs’ legal fees for the plaintiff could result in a greater financial penalty should a requester sue for records after an agency fails to participate in the OOR appeal process. Reading was ordered by a Berks County Common Pleas Court judge in mid-2018 to cover over $12,000 in legal fees to a plaintiff.
Schuster said that, since becoming city solicitor in 2012, he has notified an increase in open records request volume under the state Right to Know Law of 2008. He gave civil litigation discovery and monthly bid information forms from labor unions as two examples of requests that may not fit the popular perception of citizens keeping an eye on government associated with right-to-know laws. “I think it’s a quick, efficient, inexpensive way to get information, rather than rely upon the typical tools of discovery in civil litigation,” he said.
Arneson said that the OOR has heard anecdotal evidence of agencies having issues with the number of litigation-related requests they have received. He said that bills have been introduced in prior legislative sessions that would attempt to address the issue. “In terms of bid-related documents – I don’t know what’s being requested, but as a general comment – those documents are public and typically not very difficult to provide copies of,” he said. I’m less clear what the issue is on that one (compared to the volume of litigation-related requests).”
Arneson said the other issue most often raised by the OOF is a high volume of requests from commercial entities. “Those vary – a lot of times it’s data collection companies trying to get information or tax parcels, or it’s as simple as local dog grooming companies asking a county for residents who filed for dog licenses. I’m sure there will be proposals to deal with that in the state Legislature.”