The right to know, or the right to no?

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In 2012, the Office of Open Records dismissed 41 percent of appeals, mostly for incomplete documentation. In the same year, it denied 22 percent of appeals, granting only 11 percent.

And even if a person gets a favorable OOR ruling, they may still run into hurdles.

OOR has no authority to enforce its rulings, so the only recourse for a citizen or the media is appealing to Pennsylvania’s Commonwealth Court and Supreme Court. But it’s an expensive and time-consuming option for average people, who make 87 percent of OOR appeals. Eight percent are from companies and one percent from government officials.

While many believe members of the media are the main requestors of records, only four percent of the OOR’s appeals come from the media. Reporters often use public records to investigate and produce stories about how government works — or doesn’t.

“The larger media entities are the ones that have resources to file the appeals,” said Philadelphia attorney Gayle Sproul, who is currently representing an Associated Press reporter in an open-records case before the state Supreme Court.

While the cost in time and money is onerous, the right to appeal to the OOR and to the courts allows citizens more opportunities to get the records they seek. Unfortunately, said de Bourbon, government agencies also appeal as a way to further delay disclosing information.

In 2009, the first year under Pennsylvania’s revised Right-to-Know law, the Pennsylvania Gaming Control Board failed to respond to an email information request. When the citizen appealed to the OOR, the board told him it didn’t have to respond because he didn’t use the board’s official form, didn’t address the request to the appropriate person and did not mention the Right-to-Know law in his request.

When the board appealed to the Pennsylvania Supreme Court after the OOR ruled against it, the court supported the office’s contention that the Gaming Control Board “cannot simply choose to ignore a citizen’s written request for records because it does not conform with its policies and/or procedures.”

Sproul said that allowing government agencies the right to appeal OOR decisions is a major flaw in the Right-to-Know Law.

“I don’t think agencies should have the right to appeal,” she said. “They didn’t under the old law, but they do under the new law.”

The law’s flaws

Simon Campbell, a futures trader and Pennsbury school board member, discovered another problem with the law. In November, he requested salary and benefits information for employees of Pennsylvania’s 14 public universities. The schools were ready to give him the information when the Association of Pennsylvania State College and University Faculties (APSCUF), a university employees union, sued to block its release. The Commonwealth Court agreed with Campbell, but he withdrew his request as it headed for the Supreme Court.

“I can’t afford it,” said Campbell. “Although I’ve withdrawn, it’s still going to come to about $20,000 total by the time it’s all over,” he said of the legal bills for the case.

He said that, after the union intervened, he paid about $250 an hour in attorney fees to get records the state had already agreed to give him. He said that the union should not have had a voice.

He would have had an even harder time getting similar information from Penn State University, the University of Pittsburgh, Temple University or Lincoln University, which the law calls “state-related institutions.”

This became an issue after the conviction of Penn State assistant football coach Jerry Sandusky on child sex-abuse charges. State-related institutions are only required to submit annual reports to the Governor’s Office, the General Assembly, the Auditor General and the State Library. They do not have to provide them in response to Right-to-Know requests.

And requestors can forget about asking the Corbett administration for those reports, said Campbell.

“The executive branch hates requestors,” he said.

But Nils Hagen-Frederiksen, press secretary for the Governor’s Office General Counsel, said that Corbett’s office grants most of the information requests it receives.

“The Go
vernor is a strong advocate of the open flow of information,” he said. “By far, the majority of requests are granted in full and some granted in part and denied in part.”

The Associated Press appealed to the OOR after Corbett’s office redacted what it called “non-public information” from e-mail messages and schedules a reporter had requested.

With the dispute now in the Pennsylvania Supreme Court, Sproul is representing the AP. The case involves exemptions to the Right-to-Know Law, most of which which are meant to protect individual privacy and security.

“There are 30-plus exemptions, and agencies are vigorous in asserting them,” Sproul said.

A major cause of the tug-of-war between the government agencies that have the information and the citizens who seek it, said Mutchler, is that those who use the Right-to-Know Law have misconceptions and unrealistic expectations.

“The public and the press feel that public officials are criminals and are hiding things in a big vault,” said Mutchler, a former Associated Press investigative reporter. “And they think that the law is going to throw open every filing cabinet in the state.”

In addition, “public officials forget that they are not their office,” Mutchler added. “I’ve had some agencies respond to requests with, ‘It’s none of your business.’”

“I’ve been accused of either being too pro-citizen or being in cahoots with state agencies,” Mutchler added. “But I’m an advocate of the law, not for one side or the other.”

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