Pennsylvania’s open records law lacks teeth to discourage government agencies from appealing even if the state Office of Open Records determines that a record should be public, Melissa Melewsky, media law counsel for the Pennsylvania Newsmedia Association, said this week.
Under state law, if an agency or government office declines to provide a record that as a member of the public has requested, the citizen has the right to ask the Office of Open Records to determine whether the document is public or not, Melewsky explained.
But, even if the Office of Open Records determines that the record is public, there’s no real disincentive to prevent the agency from immediately appealing that decision to the county or state appeals court, she said.
Without a realistic threat of having to pay legal fees for the records requester, “if the agency loses” in an Office of Open Records determination, “they get a complete do-over” by appealing, she said.
Access to public information and debates over what is and what is not a public record are part of the focus of this week’s Sunshine Week, an annual news industry drive to stress the importance of open government.
The state news media trade group is seeking to get Pennsylvania law changed so that government agencies here have to pay legal bills when they lose legal fights over government records, Melewsky said. No legislation to do that has been introduced yet, she said.
Judges who hear such appeals can order the government agency to pay the legal fees of the citizen, she said.
The state Supreme Court in December upheld a lower court’s 2018 decision ordering the state Department of Corrections to pay $118,000 in legal fees run up by the Uniontown Herald-Standard during a fight over records about inmate health stemming from concerns about their exposure to pollution from a nearby fly ash dump.
Such rulings are uncommon, though, Melewsky said.
“There have been a handful of Right-to-Know Law cases where fees were awarded, but decades of RTKL jurisprudence shows that PA courts simply do not award RTKL fees on a regular or predictable basis when requesters win,” she said. “Most citizens cannot finance complex public access litigation opposed by teams of taxpayer-funded lawyers, and the RTKL’s discretionary fee provision does nothing to even the playing field, unfortunately.”
In addition, due to previous court decisions, there’s really nothing in Pennsylvania law that gives a great deal of weight to the Office of Open Records determination when the judge decides whether to uphold it or not, she said.
Elizabeth Wagenseller, executive director of the Office of Open Records, said that the vast majority of determinations made by the office stand.
Wagenseller, who in January began a six-year term leading the Office of Open Records, had previously been chief of staff for former Auditor General Eugene DePasquale.
“Of the appeals decided by the OOR, roughly seven to eight percent are appealed to the courts,” she said.
Wagenseller said that the Office of Open Records is on pace to hear about 3,200 appeals this year.
“Another way to look at it – considering all of the scenarios,” including cases where the appeal was dropped or dismissed, “roughly 12% of OOR appeals filed in the Commonwealth Court or Courts of Common Pleas have been reversed,” she said.
That means, though, that in those vast majority of cases in which the Office of Open Records’ determination was upheld, the member of the public seeking a record had to pay legal bills to get the determination of the Office of Open Records enforced, Melewsky said. It also means that the government agency was using tax dollars to fight public access to records.
Other states have provisions requiring government agencies to pay the legal bills of records requesters when the government fights access and loses, Melewsky said. Those include California, Colorado, Michigan, New Jersey, Texas, Washington and Wisconsin, according to the Reporters Committee for Freedom of the Press.
Changing the law to force government agencies to pay the legal bills of citizens who successfully seek access to records not only creates a disincentive for the government agency to waste time and resources fighting transparency, it creates an incentive for lawyers to take on cases defending the rights of the public to get access to those records, Melewsky said.