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Pa.’s open secret

First the good news.

Pennsylvania does not have the worst open records laws in America. Not even next to worst. It’s third.

And there are bills pending in the General Assembly that would allow greater public access to public records.

But it’s downhill from there.

That might change soon. Or not.

Pennsylvania’s Open Records Law is based on the Orwellian assumption that public records are not automatically considered public.

“Everything’s presumed to be secret and closed, other than vaguely defined things as public record,” says Kim McNally de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition. The agency — composed of lawyers, people in the media and others who care about the public’s right to know — was founded shortly after the 2005 state pay-jacking fiasco.

“You have to prove that a public document is public record,” Ms. McNally says of the current law. “The court expense keeps a lot of records in the hands of government only. We want the law to say that the government and records belong to people, with limited exceptions.”

The Integrity Index comparing state governments by the Chicago-based Better Government Association ranks Alabama and South Dakota as the most secretive about public documents, according to general counsel Craig J. Staudenmaier.

“The coalition is trying to get out the word that those aren’t the government’s records; those are (the public’s) records,” Mr. Staudenmaier said, adding that public access is a fundamental right and just as important as taxes and health care and everything else.

People have a right to know about what decisions are based on and the effects of those decisions, he added. “The government is just a custodian of these records. My clients have to spend tens of thousands of dollars. The average citizen can’t afford that and shouldn’t have to.”

Why has the Pennsylvania Legislature been so closed-minded about open records?

“They don’t want us to know what they are doing. It’s that simple,” says Tim Potts, co-founder of Democracy Rising PA, a good-government group in Harrisburg. “They don’t want to legitimize our right to know.”

“Open records laws are a litmus test of the reformers,” he says. “If it’s not passed it says clearly and distinctly that the General Assembly has not gotten the message. It has not even been put on the floor for a vote.”

But that could change soon, says Rep. Tim Mahoney, D-Fayette.

He’s the sponsor of House Bill 443, which includes the presumption that virtually all documents are public and that the onus should be on the government to prove the documents must remain private.

“I give it pretty good odds. I think everyone is on board,” says Mr. Mahoney. “This is the first component for putting trust back into government.” He predicts a floor vote by September.

Senate Majority Leader Dominic Pileggi, R-Chester, is the sponsor of Senate Bill 1, similar to HB 443. Mr. Pileggi believes it will be mid-December before the Senate passes his bill.

The Mahoney and Pileggi bills also include steep fines for government entities that do not comply. They also propose ombudsmen-type advocates.

Tim Potts remains skeptical that the Legislature will pass meaningful open records legislation.

“I’ll believe it when I see it,” he says. “And not one minute before.”


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