Amendments to the Open Records Bill
Michelle Pokrifka
Amendments to the Open Records Bill
By: Attorney Michelle Pokrifka
The original Pennsylvania Open Records Act was enacted in 1957 and underwent minor changes in 2002. Recent proposed changes to the Act have resulted in competing versions of the Act before the House and Senate. Both versions will result in major reforms to the Act, resulting in more work and oversight by local municipalities.
Of the numerous proposed changes one of the most sweeping changes of the Act is the suggested change in scope of a public record. Both versions of the Act now put forth the presumption that a government record is public unless it meets very limited exceptions as specifically outlined in the suggested amendments. Several items included in the list of exceptions include minutes of an executive session or record of such discussions is an exception and is not a public record, draft minutes of an agency meeting, and some records or information regarding communications between an agency and its insurance carrier.
Initial amendments to the House and Senate Bill would have required a change to the oversight of the open records law from the Department of Community and Economic Development to the Ethics Commission. This amendment would give the Ethics Commission overall regulatory control over the Act and allow the Commission to develop regulations for all aspects of record management and records access. Due to much public comment on this amendment the most recent version of the Senate Bill, presented on February 1, 2008 has reconsidered such oversight and has specifically indicated that The Pennsylvania Public Records Office would be housed in the Department of Community and Economic Development. It further allows that the Office contract with attorneys to act as appeal officers and hold regional hearings when necessary related to appeals. This amendment would make such appeals more convenient for the appealing parties. The House Bill still contains the provision that oversight by the Ethics Commission would be appropriate.
The current system allows appeal to the agency head and then to the local Common Pleas Court for local agency appeals. The suggested system, with the new amendments attempts to keep that in tact, but allows for the initial appeal to the Pennsylvania Public Records Office within 15 business days of the mailing date of the agency's response or within 15 business days of a deemed denial. The first appeal to the Court would be to the Court of Common Pleas and a further appeal to the Commonwealth Court. The present system is a relatively quick process. Removing appeals from the local venue to a state venue can result in more expense and time for both parties to the action. The House Bill allows for a longer appeal period of 30 days to appeal to the Public Records Office and then to the Court of Common Pleas or to a district magistrate. The amendments also authorize the Office of Public Records to hold hearings.
Both the House and Senate Bill include a significant suggested amendment that would reverse the burden of proof in an appeal. The Amendments in both the House and Senate Bills would shift the burden of proof from the requesting party to the government agency to prove that the record is not considered public or is exempt. The House bill would ban agencies from charging for research, redaction and copying time and would further except or allow redaction of home addresses in documents prior to release, although the Senate Bill does not find that home addresses should be exempted from public records.
Further changes address the length of time that a local agency has to respond to a request for records. The Senate Bill requires 5 business days to respond, while the House Bill allows 10 business days to respond.
Additionally, both amendments assess significant civil penalties for failure to provide documents after court order as well as penalties for intentional violations of the Act. Senate bill does not find that home addresses are exempted from public records but the house bill excepts home addresses.
The need to amend the Open Records Act is long overdue in Pennsylvania but the legislature must be careful to not create more burden and expense on already overwhelmed municipalities with limited fiscal resources.
