Thomas Jefferson once wrote that “an enlightened citizenry is indispensable for the proper functioning of a republic.” Pennsylvanians have clearly taken those words to heart.
For instance, last year, in a case interpreting Pennsylvania’s Right to Know Law, the Commonwealth Court ordered the State Police to release dash cam footage. The issue of access to these recordings in Pennsylvania has been closely watched by transparency advocates, as these records are increasingly sought out in an era where video has redefined the debate over police use of force.
While the ruling in Pennsylvania State Police v. Grove has been appealed to the state Supreme Court, it symbolizes the progress Pennsylvania has made in opening government records to the public. Until 2008, when Pennsylvania overhauled its open records statute, law enforcement in the state was not even arguably required to disclose these records.
Pennsylvania’s original Right to Know Law was enacted in 1957 during a time of ferment in the open government community, which sought to increase access to government records so the public could hold its institutions accountable.
The Freedom of Information Committee of the American Society of Newspaper Editors was pushing for stronger laws regarding access to government records, and in 1953, Harold L. Cross published “The People’s Right to Know: Legal Access to Public Records and Proceedings,” exposing the inadequacy of transparency provisions across the country at the time.
In keeping with those nationwide developments, state Rep. Stanley G. Stroup described the state’s proposed Right to Know Law as “legislation that strikes at the tap roots of the liberties of the people” during a 1957 debate on the Pennsylvania House floor.
Echoing the arguments of Cross and the Freedom of Information Committee, Stroup claimed that the Right to Know Law was necessary in an increasingly bureaucratic state “because certain agencies, departments, bureaus and commissions have become little isolated mountains of power in their own right and are no longer responsible to our people.”
Despite Stroup’s sweeping language, the original Right to Know Law was quite limited. If an agency declined to release records, a requester could appeal to court, but the burden would be on the requester to prove that the records requested were covered by the law.
This could prove challenging. According to Erik Arneson, who helped write the current Right to Know Law as policy director for then-state Sen. Dominic Pileggi, “basically all that an agency was required to release were financial records.”
For instance, in 1999, the state Supreme Court ruled in North Hills News Record v. Town of McCandless that 911 calls were not covered by the old law, noting that “the provisions of the Pennsylvania Right to Know Law establish a narrower framework … than has been established by a number of other state legislatures.”
According to Arneson, the 2008 update to the Right to Know Law “flipped the presumptions” of the old statute, defining all agency records as presumably public and placing the entire burden of proof on the government.
Those interviewed for this article also agreed on the importance of the second feature of the updated Right to Know Law: the creation of the state’s Office of Open Records (OOR), an independent agency that hears appeals from requesters who believe they have wrongfully been denied records, which Arneson now leads.
Terry Mutchler is an attorney who represents and advocates for records requesters. She was also the first person appointed to head the OOR. According to Mutchler, Pennsylvania is one of just three states that have a truly independent records agency.
Having an independent agency can make a big difference in accessing government records. The OOR estimates that in 2015, half of requesters received some or all of the records sought as a direct result of filing an appeal, either because agencies released records after an appeal was filed or because the requester won the case.
Contrast this to the experience requesters often have when filing appeals with the same agency that originally denied their request. Under the federal Freedom of Information Act, such appeals are required before a requester can go to court, but are commonly perceived as a rubber stamp for records denials.
Case in point: In 2015, internal appeals filed with the Department of Justice directly resulted in the release of some or all requested records less than 15 percent of the time.
The independent nature of the OOR was affirmed in 2015. Arneson was appointed to head the office by then-Gov. Tom Corbett at the end of his term. Upon taking office, Gov. Tom Wolf fired Arneson, triggering a court battle. Last September, the state Supreme Court affirmed that the OOR is “a unique and sui generis independent body” and that its head can only be fired with good cause.
According to Arneson, the increased availability of records and the ability to appeal to an independent tribunal “are powerful tools.” Mutchler agreed, stating that “eight years in, there are hundreds of thousands of records that were put in citizens’ hands because of the rewrites to the Right to Know Law.”
The numbers bear Mutchler’s assertion out. In 2009, the first year of the OOR’s existence, the agency received 1,155 appeals. By 2015, that number had more than doubled to 2,926. While the press has used the new law to shine light on government operations, the vast majority of those who file appeals to the OOR are regular citizens seeking to better understand their government.
As Mutchler told City & State PA, “I think it’s important to recognize that, while most people think this law is driven by the media, statistics say something completely (different). It is a citizen-driven law.”
Pileggi, who is now a Delaware County Court of Common Pleas Judge, also praised the law for “eliminating what I saw as needless time and money spent fighting over what citizens should have access to and what
was off limits.”
Notwithstanding the unanimous praise for these key elements of the Right to Know Law, Pileggi, Arneson and Mutchler all agreed that there are changes still to be made.
One aspect consistently identified as needing improvement is the scope of public access to government investigation records. According to Pileggi, “one area that continues to be sensitive and continues to evolve is where law enforcement is involved.”
The problem of access to government investigative records is multifaceted. Mutchler summed up the most prominent: “In most states, you can’t get information during an investigation, but once the investigation is closed, there is material that the public can see to judge the agency’s performance of its duties. However, in the commonwealth, investigative records are off the table forever.”
Second, if a municipal or county agency claims that records are exempt because they relate to a criminal investigation, the Office of Open Records does not assess that claim – the corresponding county’s district attorney hears the appeal, potentially using procedures that are substandard compared to those of the OOR.
According to Arneson, this was the result of pressure from the Pennsylvania District Attorneys Association, which was concerned that “local police investigations could be impacted” by an untested OOR.
Finally, even if the criminal investigation exemption were to be amended and appeals could be heard by the OOR, a final barrier stands in the way: Pennsylvania’s Criminal History Record Information Act. Arneson explained that the act “says that law enforcement records can only be shared with other law enforcement agencies,” banning release of criminal investigation records to requesters.
Many of the issues with the release of investigative records, including the inability to obtain them, can be traced to caution exercised by legislators initially averse to drastically changing the state’s transparency law. Arneson described the overhaul as a “sea change,” but says he believes that “now that we’re closing in on a decade of experience, it’s time to take another look at investigation records.”
Other discussed improvements seem to be a corrective for a lack of aggression on the part of legislators involved with passing the 2008 revamp.
Pileggi, for instance, said that agencies should be required to post more records online for easy public access. “We didn’t really compel agencies to make information available digitally,” he said, “but some agencies governed by the law have chosen to use technology to make information available, and now there’s an uneven utilization of that technology.”
Arneson also described a natural period of confusion as agencies, requesters and courts struggled to figure out the meaning of the act in the years following its passage.
Take the issue of redaction. Highlighted by those ubiquitous black boxes covering sections of government documents, redaction is a process for obscuring sensitive information to make a record releasable to the public.
However, in an early court decision interpreting the updated Right to Know Law, the Commonwealth Court ruled in 2010 that a quirk in the law’s language meant that agencies could only be required to redact a small percentage of documents for public release, limiting public access to the remainder.
Nevertheless, Arneson said, as courts have grown more familiar with the law, they have embraced a wider role for redaction – a role he views as the correct one. Last summer, in Pennsylvania State Police v. Grove, the Commonwealth Court ruled that exempt portions of the dash cam videos in question must be redacted to permit the release of the remainder.
Arneson said he is also committed to making sure that the thousands of opinions issued annually by his agency are consistent in their application of the law to all requesters. To facilitate consistency, he said, “We have a system in place where all final determinations go through review by our chief counsel and, if particularly notable, are also reviewed by the deputy director and I.”
While the overhauled Right to Know Law has helped to standardize the process of obtaining government documents across Pennsylvania, there is one notable exception: the state court system, which goes largely unmentioned in the open records law.
Currently, the availability of court records can vary greatly from county to county. As an example, David Price, an attorney for the Administrative Office of Pennsylvania Courts, cited divorce records. “There are some counties,” he said, “where the courts do not allow access to divorce filings. There are other counties that post all of their divorce records online.”
This state of affairs may be changing soon, however. The Public Access Working Group of the AOPC has already created uniform policies on access to electronic case information, such as the information available through the state’s online docket service, and to the court records of magisterial district judges.
The working group recently proposed a statewide policy to standardize access to records of appellate courts, the county Courts of Common Pleas and the Philadelphia Municipal Court.
According to Price, while there is no set date for the official adoption of this policy by the state Supreme Court, which sets rules regulating all state courts, “the proposed policy is definitely before the court.”
As the Supreme Court weighs the proposed public access policy, potential changes to the Right to Know Law are also on the horizon. Both Arneson and Mutchler praised Senate Bill 411, which was introduced in 2015 by then-Sen. Pileggi and which would substantially revise the law for the first time since it was updated in 2008.
Among other changes, SB 411 would make clear that the Right to Know Law applies to certain independent government authorities, such as economic development authorities, and to the police departments of state-related universities like Temple.
It would also codify the right of the Office of Open Records to examine disputed records directly and authorize it to defend its decisions in court if necessary.
Arneson doesn’t believe that “this year is quite the right time” for reforming some of the larger issues with the law, such as the investigative exemption, because of the need for careful study of the problem and solutions. It’s clear, however, that these changes are on the minds of officials and advocates alike going forward. ■