Open Records Law a good start, but needs to be stronger

Pennsylvanians have something to celebrate during the national observance of Sunshine Week, which continues through Saturday. The state's new Open Records Law has proved to be a vast improvement though not the perfect solution over its predecessor.

During 2009, the law's first year, the new Office of Open Records, which handles initial appeals of local governments' denials of records requests, handled 1,159 cases.

That volume alone indicates that Pennsylvanians want open access to government records. Some of the requests were by media organizations but, according to the Pennsylvania Freedom of Information Coalition, a substantial majority of appeals came from individuals.

Rulings by the Office of Open Records, and in some cases supporting decisions by courts, firmly have established the fundamental premise of the new law: almost all government records are presumed to be public records and the burden is on government agencies to prove otherwise when denying access. That is 180 degrees from the previous standard, when only a few records were defined as being public and the party seeking access had the burden of proving that a sought record was a public record.

And the process has dispelled some myths about open records. In a case brought by The Scranton Times-Tribune, for example, the Office of Open Records and Lackawanna County Judge Terrence Nealon found that a private company hired as a management contractor for a government agency has the same disclosure responsibilities as the government.

Nevertheless, the law also has proved to be far from perfect.

One of its key objectives was to minimize the costs inherent in challenging denied access to public records, by creating the Office of Open Records to handle appeals. But many governments have discovered that they can impose those same costs on people seeking denied records by appealing the Office of Open Records' decisions in the courts.

According to the Office of Open Records, 209 of its decisions, more than 18 percent, are under appeal.

In order to prevent that tactic, the law should be amended to impose the costs of appeals on the government, when a court upholds the Open Records Office's decisions.

Another shortcoming is the loophole that allows government activities conducted by public officials to be defined by the legislature as not a record, which permits the official to prevent disclosure to escape scrutiny. President Judge Jeffrey Smith's non-judicial time recorded on his official computer - found to have contaminated the county's computer network - being one example that failed to interest the Office of Open Records, even on appeal.

There is no doubt that the new Open Records Law has indeed let in some sunshine in Pennsylvania. But that is a cause for aggressive pursuit of public information, rather than complacency.