The (Uniontown) Herald-Standard, Dec. 19

Mahoney drafts open records reform bill

By Alison Hawkes
Of the Herald-Standard

Fayette County's representative-elect Tim Mahoney has drafted a bill requiring state government, including the long-exempt Legislature, to open its records to public inspection within 10 business days of a request.

The language, which he intends to introduce as a bill in the first week of the new session in January, has several elements that would radically change the way Harrisburg handles public records requests.

According to a draft of Mahoney's bill, the public would have a presumed right to internal government documents and the government agency would have to prove why a record should remain secret.

That turns the tables on existing law, in which the presumption is on citizens to prove a record should be made public.

Also, the draft bill would establish an "Office of Access to Public Records" where citizens could appeal a government agency's denial of a public records request.

The independent administrative agency, whose executive director would be appointed by the governor, would review and rule on the appeals. Afterward, either aggrieved party could take the issue to court. Currently, the only avenue for citizens to complain about a denied request is a lawsuit.

Mahoney, a Democrat, said his bill, which he is sending out for co-sponsorship to the entire House Dec. 20, has already generated interest.

"I think I'm going to get a good reception," he said. "I have had calls from veteran legislators and freshman wanting to know when it will be done. There are people wanting to sign onto it."

Mahoney said he based the bill off Florida, Kentucky, and Ohio open records laws. Pennsylvania, which is known to have one of the weaker open records laws in the nation, missed out on the chance for meaningful reform in the 2002 update to the 50-year old law, said Barry Kauffman, executive director of the Pennsylvania chapter of Common Cause.

The Legislature tinkered with administrative issues, such as a 10-day timeframe for government agencies to respond as well as copy fees, without taking on the real issue of access, he said.

"Any time you're trying to make a major reform of government that opens it up to public observation it's going to be a difficult fight," Kauffman said. "But I think lawmakers are on the defensive now. They know the public has higher expectations and there does seem to be a willingness to address open records in a meaningful manner."

Kauffman said a presumption that records are public would bring Pennsylvania up to the standards of the federal Freedom of Information Act governing federal agencies.

"It's just a sign of respect that citizens have a role in overseeing the operations of government, and they need a broad range of information to do that job correctly," he said.

Kauffman added that some information should reasonably be kept private, such as the identity of undercover drug enforcement officers or locations of safe houses for abused women and children.

Mahoney's bill carves out a number of public records exemptions: the part of a record listing Social Security numbers and other personal information or medical histories, records that if disclosed would endanger public safety (except security policies), records pertaining to strategy and negotiations in a legal or collective bargaining dispute, corporate trade secrets, and records that would reveal a governor's policies or courses of action before they are made public.

The bill also explicitly states that a requester cannot be denied access due to their intended use, although it does provide limitations for commercial uses of public records with the exception of media.

Agencies must respond to a written request within 10 business days, unless under specified circumstances, or the request is presumed to be denied. Agencies violating the law could be subject to as much as $1,000 in civil penalty by the court.

Included are state-aided colleges and universities, authorities and inter-governmental agencies, and any organization or board that derives at least 25 percent of its fund from public money. Mahoney said he plans to have the Office of Access to Public Records also fulfill all records requests for state government agencies, although that provision has not yet made it into the draft bill he provided Dec. 18.

The bill also expands the current definition of public record beyond financial transactions and meeting minutes to include "all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, database, data or other material .... made or received in connection with or relating to the work of an agency, except those documents exempt or prohibited from disclosure under state or federal law."

Mahoney said he hopes his bill prompts agencies to place more government records on the Internet and in other electronic formats, giving the public a chance to receive documents without coming to Harrisburg.

"I learned one thing in Harrisburg," said Mahoney, who's been an elected state representative for just over a month. "I have to walk softly and carry a big stick. You gotta shake the trees to let people know you're here."

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