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Exemptions in open records law block key information from public eye

By   /   August 21, 2012  /   No Comments

By Eric Boehm | PA Independent

HARRISBURG — They say no one wants to see how the sausage is made.

But in Pennsylvania state government, it’s also true that no one is allowed to see how the sausage is made, even if they wanted to.

Making the sausage.

A pair of exemptions in Pennsylvania’s open records law allows the General Assembly to block requests for records that reflect the “internal deliberative processes” used in the crafting of any budget, legislative proposal or amendment.  Members of the General Assembly and their staffs are also specifically exempted from disclosing communication that flows into and out of their taxpayer-funded offices, even though all other state and local public officials in the state are obliged to do so.

Lawmakers maintain that such privacy is necessary for open and frank conversations with constituents and other interests, but open records advocates say the exemptions provide a double-standard of privacy for state lawmakers while blocking the public from seeing how special interests exert influence over legislation.

“On its face, there is a level of hypocrisy to it,” said Ken Bunting, executive director of the National Freedom of Information Coalition, a pro-transparency organization housed at the Missouri School of Journalism. “You have the Legislature making the rules and saying that they apply to everyone else but not to us.”

Bunting said most states have some kind of protection for communication with state lawmakers written into their law, but he is not aware of any problems that arise in states where the public can access those messages.

Sen. Dominic Pileggi, R-Chester

Erik Arneson, spokesman for Senate Majority Leader Dominic Pileggi, R-Chester, who sponsored the 2008 bill that created the state’s open records law and Office of Open Records, said the confidentiality provision was the result of many concerns at the time the law was passed.

“It is widely believed that members of the public do not expect their communications with members of the General Assembly to be made available, and that they should be afforded this level of confidentiality,” he wrote in an email Monday.

Where the sausage gets made

But local governments and state agencies – whose communications fall under the open records law — often raise questions and concerns with the state’s Office of Open Records over that special exemption for lawmakers, said Terry Mutchler, director of that office, which reviews and appeals open records requests on behalf of requesters.

Overall, Pennsylvania’s open records law receives high marks from pro-transparency groups.

Last year, the State Integrity Project, which advocates for more accountable state government, gave the Keystone State a grade of B for its open records policy.

The same study gave Pennsylvania an F for its state budget process – in part because budget information and related records are not covered by the state open records law.

While it may not be perfect, the 2008 passage of the Open Records Law set off a string of victories for open government, including an online database for all state contracts, the creation of an Independent Fiscal Office — a state version of the Congressional Budget Office — and a strengthening of the state law governing public meetings.

Since 2009, the state’s Office of Open Records has decided more than 4,000 appeals – including more than 1,700 in 2011 alone, according to the office’s annual report.

But in certain cases, the law appears to give preferential treatment to public officials, such as allowing them to keep all emails secret even when they might otherwise count as a public record.

Diana Lopez, senior editor for Sunshine Review, a national pro-transparency nonprofit, said Pennsylvania’s blanket ban on correspondence can keep residents in the dark about issues that would be considered public in other states.

In Florida, for example, the content of lawmakers’ emails can be used to determine whether they make themselves available to the public.

Gov. Tom Corbett signs off on fully-made sausage

“The presumption should be on openness,” Lopez said. “The burden of proof to keep something secret should fall on the government.”

Without access to communication from legislative offices – and in part because of a second exemption that blocks access to any “pre-decisional” information related to any bill or amendment – it’s impossible for the public to get an understanding of how special interests and lobbyists shape the Legislature, Lopez said.

If an enterprising member of the general public wants to know how much influence, say, the natural gas industry had over the drafting and the editing of Act 13 – the omnibus tax and regulatory bill for natural gas drilling in Pennsylvania approved last year – there’s no way to know for sure because the potential smoking gun is hidden from the law.

Most states have some protections for “pre-decisional” documents and memos, which is intended to allow lawmakers to openly debate issues with constituents and other interests without fear of having the issues politicized.

Even so, the exemption blocking “pre-decisional information” is one of the most frequently cited in rejected right-to-know requests, said Melissa Melewsky, media law counsel for the Pennsylvania Newspaper Association, which represents media in the state.

It’s a provision that the association would like to see narrowed if the state law is ever revised, she said.

“It’s very broad, and the agencies have consistently interpreted it broadly, even though the courts say the law should be narrowly construed,” she said.

Mutchler said the exemption for “pre-decisionary” content is designed to give lawmakers “breathability when making a decision to really get to the core of a discussion without worrying about editing themselves as they go through the decision-making process.”

Arneson said the importance of keeping behind-the-scenes negotiations a secret has long been recognized, as even the meetings of the Constitutional Convention in 1787 were conducted in complete privacy.

Pileggi is the lead sponsor of SB 247, which could be a vehicle for making some changes to how the law operates.  The bill is expected to move during the upcoming fall session, which begins in mid-September.

This story was updated to correct the spelling of Terry Mutchler’s name.

Contact Eric at [email protected] or follow @PAIndependent on Twitter