There’s a big hole in the state Right-to-Know Law

The Morning Call - - TOWN SQUARE - Paul Muschick Morn­ing Call colum­nist Paul Muschick can be reached at 610-820-6582 or [email protected]

When gov­ern­ments don’t take the state public records law se­ri­ously, they should have to pay a price.

The city of Scran­ton re­cently did, al­beit a small price, and other gov­ern­ments should learn from what hap­pened there.

So should state law­mak­ers.

They should toughen the law to try to pre­vent what oc­curred.

The Times-Tri­bune news­pa­per sought video sur­veil­lance footage from Scran­ton

City Hall but by the time it won its case, the city had recorded over the footage.

Oops. Sorry.

The city ar­gued that was un­in­ten­tional. And it could ar­gue that it hadn’t vi­o­lated the Right-to-Know Law be­cause the law does not spec­ify that a gov­ern­ment must pre­serve or re­tain a record af­ter it’s been re­quested by the public un­til any lit­i­ga­tion over ac­cess to it is re­solved.

So I can un­der­stand why the judge de­clined to fine the city and only awarded the news­pa­per roughly $3,500 in re­im­burse­ment for le­gal fees.

The dis­pute started in Jan­uary when FBI agents raided Scran­ton City Hall as part of a public cor­rup­tion probe that ul­ti­mately re­sulted in Mayor Bill Cour­tright re­sign­ing and plead­ing guilty to bribery, ex­tor­tion and con­spir­acy.

Jim Lockwood, a re­porter at The Times-Tri­bune, used the Right-toKnow Law to re­quest the sur­veil­lance video from the day of the raid.

The city de­nied his re­quest. The news­pa­per ap­pealed to the state Of­fice of Open Records, which ruled the video

was a public record and must be turned over.

The city didn’t pre­serve the video dur­ing the le­gal wran­glings, and the City Hall sys­tem recorded over it af­ter 30 days, ac­cord­ing to an ar­ti­cle in The Cit­i­zens’ Voice news­pa­per. The city tried to re­trieve the footage but was un­able to re­cover all of it.

The Times-Tri­bune sued. It sought sanc­tions against the city, ar­gu­ing it acted in bad faith or frivolousl­y if it didn’t pro­tect the video af­ter it was sought.

The news­pa­per asked the court to or­der the city to pro­vide the en­tire footage, to pay the news­pa­per’s le­gal costs and for “other re­lief as is just and ap­pro­pri­ate un­der the cir­cum­stances.”

The city con­tended it had pro­vided all of the re­quested video, but later ac­knowl­edged it hadn’t prop­erly pre­served it, ac­cord­ing to court records.

“Con­se­quently, the qual­ity and value of the video­tape was sig­nif­i­cantly di­min­ished at the time it was pro­duced,” Lack­awanna County Judge James Gib­bons wrote in his Aug. 13 opin­ion that awarded le­gal fees.

He de­clined to fine the city, say­ing that award­ing the fees was “suf­fi­cient in this con­text.”

He wrote that while fail­ing to pre­serve the video may not have been in­ten­tional, “there need be consequenc­es, even for be­nign ne­glect.”

The Right-to-Know Law al­lows fines of up to $1,500 if a gov­ern­ment agency blocks ac­cess to a public record in “bad faith.”

It’s easy for the city to ar­gue that record­ing over the footage was ac­ci­den­tal be­cause it’s pretty much im­pos­si­ble to prove oth­er­wise. Gib­bons noted that bad faith does not re­quire a de­ter­mi­na­tion of fraud or cor­rup­tion.

And while the Right-to-Know Law doesn’t con­tain lan­guage re­quir­ing dis­puted records to be re­tained dur­ing pend­ing ap­peals, ar­gu­ments could be raised, as they were in this case, that not re­tain­ing them shows bad faith.

Gib­bons in­ter­preted the law to mean that there was a “manda­tory duty” to pre­serve the video, ac­cord­ing to his opin­ion.

I’m glad he saw it that way.

The law shouldn’t be sub­ject to in­ter­pre­ta­tion, though. It should be amended to make it clear that re­quested records must be kept un­til a case is re­solved. A few bills are pend­ing in the Leg­is­la­ture to ad­dress such sit­u­a­tions.

Se­nate Bill 783 by Sen. John Blake, D-Lack­awanna, would re­quire agen­cies to main­tain all records in­volved in a Right-to-Know re­quest un­til the re­quest has been re­sponded to and any ap­peals have been ex­hausted.

The leg­is­la­tion calls for a fine of up to $25,000 if an agency or public of­fi­cial dis­poses of a po­ten­tially public record in bad faith.

State Rep. Cris Dush, R-Jef­fer­son, has in­tro­duced leg­is­la­tion that would make it a crime to de­stroy or al­ter a record that is sub­ject to a Right-to-Know re­quest. House Bill 1601 would make that a third-de­gree felony.

Penn­syl­va­nia’s Right-to-Know Law is pretty strong. It was rewrit­ten 10 years ago to greatly in­crease public ac­cess to gov­ern­ment records by pre­sum­ing that all records are public un­less they are specif­i­cally ex­empted, such as if their re­lease could en­dan­ger some­one’s safety, de­rail an on­go­ing in­ves­ti­ga­tion or dis­close a trade se­cret.

The law could be im­proved, though, and this is one big area.

I haven’t heard of many cases where agen­cies de­stroyed records, ei­ther in­ten­tion­ally or ac­ci­den­tally, af­ter some­one asked for them. But the law needs to ac­count for that pos­si­bil­ity, and in­clude harsh enough penal­ties to make it clear that such sub­terfuge won’t be tol­er­ated.

ASSOCIATED PRESS

Scran­ton re­cently was or­dered to pay le­gal fees to The Times-Tri­bune news­pa­per stem­ming from a le­gal dis­pute over ac­cess to City Hall sur­veil­lance video on the day of an FBI raid in Jan­uary.

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