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Through public records lawsuits, RCFP’s Local Legal Initiative seeks to improve Pennsylvania’s Right to Know Law

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  1. Freedom of Information
RCFP attorneys hope that successful public records lawsuits could help shape the state’s law in favor of greater transparency.
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Attorneys for the Reporters Committee for Freedom of the Press are currently fighting in court to help Pennsylvania journalists gain access to records that should be released under the state’s Right to Know Law.

If they’re successful, reporters from local news organizations will be able to access records that reveal a forensic audit of a local fire company, the salaries of county court employees, aggregated data about pneumonia and influenza deaths, and pandemic preparedness plans for a county jail.

Beyond helping these journalists access public records, such litigation could go a long way toward helping improve Pennsylvania’s relatively new public records law. With the state’s Right to Know Law less than 12 years old — quite young compared to other states’ public records laws — there is substantial opportunity to create favorable case law for transparency, as well as to address problems in the law, something that the Reporters Committee hopes to achieve through its Local Legal Initiative, led in Pennsylvania by attorney Paula Knudsen Burke.

While Pennsylvania’s current law is certainly better than the law it replaced, Knudsen Burke says there is still lots of room for improvement — both through the courts and the state legislature.

“I would not put us anywhere near the top of the country’s open records laws,” she said. “I would give us maybe a C+.”

The history of Pennsylvania’s Right to Know Law

Before lawmakers passed Pennsylvania’s Right to Know Law in 2008, the state’s open records law was considered one of the worst in the United States. In 2002, for instance, the Better Government Association ranked Pennsylvania’s previous law tied for 47th in the nation.

Under the old law, Knudsen Burke says, secrecy was the norm. Government records were largely presumed not to be publicly accessible.

“There was an attitude that it was a special favor or a special dispensation to give information to requesters,” Knudsen Burke said.

That attitude started to change when Pennsylvania lawmakers, led by former state Sen. Dominic Pileggi, passed the state’s Right to Know Law in 2008. The law, which went into effect the following year, put the burden on government officials to point to valid exemptions to justify withholding records requested by members of the public, including journalists. The new law also created the Office of Open Records, an agency responsible for handling public records appeals.

Terry Mutchler, an attorney at Dilworth Paxson LLP, served for seven years as the founding executive director of the Office of Open Records after being appointed by former Gov. Ed Rendell to create the office.

“I was hired by the government to fight the government to assure citizens got access to public records,” Mutchler said. “I think people saw that we were not political in this. … We had one client and that was the law.”

Knudsen Burke says she views the Office of Open Records as one of the biggest improvements from the old law. She said other improvements include the law’s requirement that the government issue an initial response within five days of receiving a formal public records request and the requirement that government contracts worth more than $5,000 be posted on the state treasurer’s website.

These revisions, among others, represent important progress toward greater transparency in Pennsylvania. But the state’s Right to Know Law still has flaws that need to be addressed.

“When you start at the bottom of the barrel, the only place you can go is up,” Mutchler said, referencing the Pennsylvania law’s former ranking among the worst in the country. “Now, the trick is that these [public records] denials have gotten more sophisticated. You’ve gone from teaching the state its ABCs, but now we’re into heavy-duty calculus.”

The future of transparency and access in Pennsylvania

Knudsen Burke says the courts could soon start addressing some of the Right to Know Law’s flaws, starting with the public records lawsuits in which she is representing two different news outlets: the York Daily Record and the York Dispatch.

In the former case, York Daily Record reporter Dylan Segelbaum is trying to access a forensic audit of the North York Borough Liberty Fire Company. After North York Borough denied his records request, Segelbaum appealed to the Office of Open Records, which granted him access to the audit under Pennsylvania’s Right to Know Law.

But the borough has since appealed to the York County Common Pleas Court, arguing that the Office of Open Records erred when it determined that the requested records were not related to a criminal investigation and thus subject to disclosure under the open records law.

Knudsen Burke says the borough’s appeal should be denied because the Office of Open Records was correct in finding that the records were not exempt from disclosure. She argues that the law’s exemptions for records related to criminal or non-criminal investigations are too broad and have been applied inappropriately over the years.

In the matter involving the York Dispatch, reporter Liz Evans Scolforo is trying to obtain salary records for employees in the York County court system. She submitted separate requests to York County and the York County Court of Common Pleas, but both were rejected. The court claimed that it “has absolutely no authority over, responsibility for, nor access to any personnel record of any employee in the prothonotary’s office.” The county, meanwhile, claimed the records were judicial records not under its purview.

Evans Scolforo appealed to the Office of Open Records, but the office dismissed the appeal for lack of jurisdiction. In the public records lawsuit filed on behalf of Evans Scolforo and the York Dispatch, Reporters Committee attorneys argue that the Office of Open Records erred in concluding that the requested records are judicial records because the judiciary doesn’t pay the salaries of the prothonotary staff — the county does.

“These employees are paid with county funds, supervised by county row officers and as such, the employees’ basic salary and employment records are public under the RTKL,” Knudsen Burke argued on behalf of the newspaper in a court filing. “A holding to the contrary would create a gaping hole in the RTKL for elected county officials and their staff.”

David Martens, president of the York Dispatch, says he has never been involved with anything as egregious as the Evans Scolforo case. He says there’s a reason the case has attracted so much attention from the Reporters Committee, Mutchler and the National Freedom of Information Coalition.

“This is so egregious they don’t want it to spread across the state,” Martens said. “So we’re saying, ‘Look, we have to tackle this head on right now to fix this, to right this wrong, because if we don’t get it fixed, it could spread like a cancer to the rest of the state.’”

The battle for greater transparency in Pennsylvania won’t be limited to the courts. While Knudsen Burke hopes that the public records lawsuits she files on behalf of journalists and news organizations in the state help nudge the Right to Know Law in the right direction, she is also urging for more action in the legislature.

“Open records is a bipartisan issue, and government transparency is something that everyone can get behind,” said Knudsen Burke, noting that she’d like to see a lawmaker emerge as a champion of open records much like Sen. Pileggi proved to be in 2008. “Hopefully, this next session, 10 plus years later, we’ll find ways to fix some of the things that need to be done.”

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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