Posted on Fri, Feb. 15, 2008

Pa.'s new open-records law praised

Signed into law yesterday, it allows the state to shed an image of having one of the worst documents laws.

By Angela Couloumbis

Inquirer Harrisburg Bureau

HARRISBURG - Pennsylvania may still not be among the best, but it certainly is no longer one of the worst.

That, at least, was the assessment of experts on open-records legislation following the Pennsylvania legislature's passage of such a bill earlier this week. Gov. Rendell signed the legislation in a ceremony yesterday outside his office.

With his signature, the state will finally be able to shed the unflattering distinction of having one of the worst records in the nation - many believe it is the worst - on providing access to government documents.

The new law, which goes into effect in January, will put Pennsylvania on par with other states long considered progressive on the issue of public access.

"There is nothing in the bill that is unusually open or exotic - but it does call for good, solid, mainstream, ordinary transparency," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, a nonprofit organization that tracks open-records laws around the country.

Rendell yesterday put it this way: "Is it a perfect bill? No. Is it a good bill? Absolutely. Is it a step on the road to reform? Without a doubt."

In essence, the new law declares that all state and local government records will be public unless specifically exempted. That is a far cry from the state's current Right to Know Act, which was written in 1957 and has a very narrow definition for what constitutes a public record.

The new law also shifts the burden onto a government agency to prove why a record should be shielded from public view. And for the first time, the legislature will be subject to the open-records law.

Any disputes between the public and a government agency will be handled by a new Office of Open Records that will have its own independent director and staff.

Sen. Dominic Pileggi (R., Delaware), the law's prime sponsor, called the it "a turning point in the relationship between citizens and their government."

"For the first time in over 50 years, we have a modern, responsive open-records law in Pennsylvania and one that should substantially change the dynamic between citizens and their government," Pileggi said.

Still, for open-records advocates, the law is not perfect. There are a series of exceptions for records that in other states are routinely free for the asking.

For instance, 911 tapes in Pennsylvania, in most circumstances, will be closed to the public. The law states that those tapes (or transcripts of the tapes) are exempt from disclosure unless an agency or a court determines that the public interest in making them public outweighs the interest in keeping them private.

Other states, however, routinely allow access to 911 transcripts or tapes, among them, Arizona, Arkansas, Colorado, California, New Mexico, New York, Ohio, Virginia and Texas.

Another exemption in Pennsylvania's law: autopsy reports (with the exception of the deceased's name, and cause and manner of death).

Many other states generally permit access to such reports - or portions of the reports - including Alabama, Colorado, Georgia, Hawaii, Kansas and Louisiana.

"That is one aspect of the law that really concerns us," Larry Frankel, legislative director for the ACLU of Pennsylvania, said earlier this week. "We've learned that good investigative reporters have been able to use such reports as key elements in their investigations of wrongful convictions."

And under Pennsylvania's law, written records of internal deliberations of an agency, its members, employees or officials, or deliberations between two or more agencies will be off-limits to the public.

Other states, like Florida (considered the gold standard for public access), routinely permit residents to inspect written correspondence involving government employees if its part of the public discourse.

Still, even with it's shortcomings, the new law is a major improvement. And it will change the culture at all levels of government, said Michael Baughman, a partner with Pepper Hamilton and an expert in media law.

"It's a great step forward, and it brings us into the more progressive community of states," said Baughman, who has represented newspapers and television stations, including The Inquirer.

Others pointed out that the legislature can always come back and make the law stronger.

"You can always go back in and amend it," said Robert Richards, a Penn State professor of journalism and law and the founding codirector of the Pennsylvania Center for the First Amendment at Penn State.

"What is momentous is that the [legislature] passed it," he said. "I never thought I would see any type of open-records legislation in my career here."