New open-records law to go into effect in Pennsylvania

By Jeanne Starmack

The law presumes all records, with noted exemptions, are public.

Proponents of a stronger Pennsylvania open-records law got a nice Valentine’s Day present this year.

Gov. Ed Rendell signed Act 3, the new law that is supposed to reinforce what’s largely considered one of the weakest open-records laws in the nation, on Feb. 14.

Now the last year under the old law is ending. A new office of open records has been setting training sessions throughout the state for representatives of government agencies.

What will change? The new right-to-know law presumes all government records, with noted exceptions, are public.

If a government agency wants to refuse access to a record, the burden of proving the record should not be public is the agency’s. That’s a total reversal of presumption from the current law, said Melissa Melewsky, media legal counsel for the Pennsylvania Newspaper Association.

There was nothing in the old law, she said, that specified the burden was on the requester. “But that’s the way the law worked.”

Other big changes, she said, are that now the records of the state General Assembly will be open. So will financial records of all Pennsylvania courts.

People who couldn’t get access to a teacher’s contract before will now be able to do so, she said. Packets about school board meeting agenda items, routinely given to board members before meetings, are now public as well.

There are provisions in the law for fines up to $1,500 and $500 a day if an agency doesn’t comply with a court order to provide a record.

Courts would impose the fines, but one of the best features of the new law, Melewsky said, is the open-records office. People will be able to seek help from the office without filing a costly lawsuit, which was the only way to force a record into the open before. The office has the power, Melewsky said, to help people access records.

For governments that already had an open attitude toward providing records, there shouldn’t be much change from “business as usual,” said Jim Gagliano, Lawrence County chief clerk and administrator. Gagliano attended an Oct. 28 training session on the law.

“It hasn’t been a major issue here,” he said. “It was pretty much an open process for most departments.”

The law requires each agency to have an open-records officer, and the state open-records office provides forms for records requests. The law allows five business days for the agency to respond to a request and a 30-day extension if the agency can show under the law that more review is needed.

Gagliano said if the county is consistent with a policy on records requests by requiring everyone to fill out a form and taking up to five days to answer, accessing records could actually be more difficult for the public.

Melewsky said, however, that making access more difficult goes against the intent of the law and would make more work for the agency.

The law, she said, does not routinely require a written request.

“You can make a verbal request,” she said, and if the document is readily available, the agency should provide it.

The only time someone has to make a written request, the law says, is when they plan to seek the legal remedies available to get a record.

Terry Mutchler, who will head the open records office, also said that if a more-open system has been in place at a government agency, there’s no reason to change it.

The new law doesn’t change access to court case information, Melewsky said, and the broad protection that criminal investigative records enjoy under the current law.

For police records, which are governed under a different law called the Criminal History Record Information Act, there won’t be much change, she said.

The new law does make 911 response times and most traffic report information public. Otherwise, the basic information of an arrest report, which includes who was arrested, where, when, and for what, always has been and will continue to remain public, she added.

starmack@vindy.com