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