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Important momentum is building for reforming Pa. open records law

State lawmakers in Harrisburg are this week debating how much access citizens of Pennsylvania should have to government records.

Some lawmakers seem to believe that the less the public knows about what government does, the better. Clearly, many of the lawmakers caught up in the 2005 pay-raise vote and more-recent legislative bonus controversy would prefer to keep the public in the dark.

But the cause of the reformers hoping to expand the state's Right-to-Know Law, which is considered one of the weakest in the nation, got a boost early this week.

On Monday, Senate Majority Leader Dominic Pileggi, R-Delware, said he would amend his bill to align with reformers hoping to dramatically expand the public's right to know.

A key provision sought by supporters of right-to-know reform would "flip the presumption" from assuming a record is private to one that starts with the assumption that a governmental agency's records are public.

According to the state's current law on this issue, written in 1957, the burden of proof to receive a government record rests with the person seeking the record, who must prove it should be made available to the public. By flipping the presumption, the burden of proof would be on the governmental agency to prove the record should not be made public. Even if the presumption is flipped, it is expected there will be a list of exceptions such as private medical records, ongoing police investigations and Social Security numbers.

Following a hearing on Right-to-Know, Pileggi said he would change his bill to flip the presumption, which is the basis for two other pending bills and also is the essential change supported by Gov. Ed Rendell.

The resumption of government records being public is the foundation for right-to-know laws in most other states and the federal government. But, as is often the case, Pennsylvania is out of the mainstream.

It's not surprising that some state lawmakers would want to make it as difficult as possible for the public to know what they are doing — and how they are spending taxpayer dollars.

Consider the case of the Pennsylvania Higher Education Assistance Agency, with a board of directors dominated by state legislators, which fought the release of spending documents related to board retreats and travel. After an 18-month legal battle, PHEAA was forced by the courts to reveal how it spent $862,000 on board retreats at luxury resorts. The legal battle waged by PHEAAto keep its spending records secret cost more than $400,000 in legal fees.

Another example of a right-to-know weakness in the state listed by the Pennsylvania Newspaper Association notes that most people would like to know which roadways and intersections the state Department of Transportation ranks as the most dangerous. Yet, PennDOTrefuses to release the accident statistics.

In the General Assembly, the $3.6 million in year-end bonuses paid to top legislative staffers following the 2006 election was only brought to light by someone talking to the media. Pennsylvania's state legislature exempted itself from the open records law and did not release the information until public pressure from the initial reports forced lawmakers to reveal the big bonuses paid to legislative staffers, many of whom also did political work for party leaders.

An opinion piece by Terri Henning, general counsel for PNA, defines "open government" as the "difference between knowing what elected officials and public employees are doing versus trusting blindly that they will do the right thing."

Even where documents have been judged to be public, current law makes access difficult. One example is the legislative bonuses, where prior to public pressure forcing the release of all the bonuses, journalists had to submit requests in writing to an office in Harrisburg. Then they had to wait several weeks for the requested information. And then, when retrieving the reports in person, only records for a handful of staffers could be handled as part of a written request. Additional information beyond the first few required another written request, submitted in person.

Making access to public records easy has clearly not been the intent of lawmakers.

This week's hearings were expected to reveal the prospects for reforming and expanding Pennsylvania's open-records law. Pileggi's promise to amend his bill to align with others that "flip the presumption" is an encouraging sign.

Developing the list of exemptions for the expanded law will no doubt be contentious, but the presumption that a public agency's records are public is a good place to start.

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