LBFC Report: Recommendations

Open records_logo stackedThe report released today by the Legislative Budget and Finance Committee entitled “Costs to Implement the Right-to-Know Law” includes eight recommendations, four for the General Assembly and four for the OOR.

I support all eight recommendations (one, as noted below, with some reservations). In more detail:

LBFC Recommendations for the General Assembly

Recommendation: Require agencies to provide AORO contact information to include name, telephone number, email address, and physical address to the OOR annually or whenever there is a change in the information.

Response: The OOR currently collects this information on a very informal basis. However, a statutory mandate for agencies to provide AORO contact information to the OOR, combined with technological improvements already in development (i.e., an online AORO database), would allow us to proceed in a far more efficient manner.

Recommendation: Require agencies to prominently post required RTKL information on their websites and specifically define AORO contact information to include the name, telephone number, email address, and physical address of the AORO.

Response: Like LBFC, the OOR has found that it can sometimes be difficult or impossible to locate AORO information on an agency website. In addition to supporting a new statutory requirement that the information be “prominently” posted, the OOR will continue to emphasize this as a best practice in our training.

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LBFC Report: Highlights

Open records_logo stackedHere are highlights from the report released today by the Legislative Budget and Finance Committee entitled “Costs to Implement the Right-to-Know Law.”

The report found that “most of Pennsylvania’s state and local government agencies receive few RTKL requests, most of the requests are easily fulfilled at a relatively low cost, and only a small percentage of the requests are appealed.”

Annual Costs to Agencies

  • Almost 54 percent of agencies reported an annual cost of $500 or less to comply with the Right-to-Know Law (RTKL).
  • About 92 percent of agencies reported an annual cost of $10,000 or less.
  • The total cost of responding to RTKL requests by all agencies in 2016 is estimated at $5.7 million to $9.7 million. With more than 6,000 agencies across the state, that’s an average cost of just $950 to $1,617 per agency.

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Opening Comments to the Legislative Budget and Finance Committee

Open records_logo stackedEarlier today, the Legislative Budget and Finance Committee released a report entitled “Costs to Implement the Right-to-Know Law.” The report was prepared pursuant to House Resolution 50 of the 2017-18 legislative session, sponsored by Rep. Kate Harper.

I was invited to address the committee prior to the report’s release. Here are my opening comments:

Thank you, Mister Chairman, members of the committee, executive director. I appreciate the opportunity to say a few words.

The Right-to-Know Law is for the people. It gives the public the ability to review the actions of their government and to hold those in power accountable for their actions.

The Right-to-Know Law – as demonstrated by this committee’s study, as demonstrated by the Office of Open Records’ own study, as demonstrated by countless stories from all across our great Commonwealth – is working.

The public has far more access to the transactions and activities of government than ever before. That is, indisputably, a good thing.

Some say the Right-to-Know Law is a burden on agencies.

Transparency is not a burden. Transparency breeds trust. And for those of us privileged to hold government positions, transparency is a duty. It is – or should be – as fundamental as anything an agency does.

This is not to say the Right-to-Know Law can’t be improved. It can.

We should restructure the fee schedule for commercial requests. We should eliminate and scale back some of the exceptions. And this report contains several excellent recommendations. I look forward to working with members of this committee and others in the General Assembly on legislation to make improvements.

But the fundamental truth – a truth confirmed by the data in this report – is that the Right-to-Know Law is working for the people, as intended, and it is working very well indeed.

Thank you. I’m happy to answer any questions.

First-Ever Survey of AOROs

Open records_logo stackedThe vast majority of government agencies in Pennsylvania — 87.4% — received 1 or fewer Right-to-Know (RTK) requests per week in 2016.

Similarly, 72.8% of agencies spent 1 hour or less per week (and 91.8% spent 5 hours or less) responding to RTK requests in 2016.

Those are some of the highlights from the first-ever statewide survey of Agency Open Records Officers (AOROs), the people responsible for responding to requests filed under Pennsylvania’s Right-to-Know Law (RTKL). The survey was conducted by the Office of Open Records’ (OOR) in February 2017.

Nearly 1,300 AOROs responded, including Commonwealth agencies and local agencies of all types (i.e., municipalities, school districts, counties, police departments, charter schools, and more). We worked with numerous organizations and the Governor’s office to get as many responses as possible.

The OOR has always had good data on appeals filed under the RTKL (because the vast majority of appeals are filed with the OOR), but this survey was the first large-scale attempt to collect good data about the requests received by agencies.

(As a result of House Resolution 50, the Legislative Budget & Finance Committee has conducted a second statewide survey of AOROs. The OOR provided input to LBFC, and I expect that survey to provide additional insights.)

The OOR’s survey asked five substantive questions:

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Three Recent Home Address Cases

Open records_logo stackedLast month, the Pennsylvania Supreme Court issued one decision and the Commonwealth Court issued two decisions addressing issues related to home addresses, the Right-to-Know Law, and the right to privacy found in Article I, Section 1, of the Pennsylvania Constitution.

In chronological order, the decisions are:

Butler Area School District v. Pennsylvanians for Union Reform (Commonwealth Court, November 2, 2017)

Chester Housing Authority v. Polaha (Commonwealth Court, November 21, 2017)

Reese v. Pennsylvanians for Union Reform (Supreme Court, November 22, 2017: majority opinion, concurring opinion)

PA Supreme Court: District Attorneys Not Judicial Agencies

Open records_logo stackedOn November 22, 2017, the Pennsylvania Supreme Court held that District Attorneys are not judicial agencies under the Right-to-Know Law (RTKL).

In the majority opinion in the case of Stacy Parks Miller v. Centre County, authored by Justice Wecht, the Supreme Court held that: “Examination of the RTKL, the definitional section of the Judicial Code, 42 Pa.C.S. § 102, and the definitions provided in our Rules of Judicial Administration, demonstrate that a district attorney’s office is not a ‘judicial agency’ for purposes of the RTKL.”

The majority opinion was joined by Chief Justice Saylor and Justices Baer, Todd and Mundy. Justice Donohue authored a concurring opinion, joined by Justice Dougherty.

The distinction is significant because the RTKL applies in a very limited fashion to judicial agencies, which are required to provide only financial records. The law’s application to local agencies is much broader.

Requesting Police Video and Audio in Pennsylvania

Open records_logo stackedAct 22 of 2017 (specifically, Chapter 67A of the Act) now governs the process of requesting audio and video recordings in the possession of law enforcement agencies in Pennsylvania.

We’ve added a page to the Office of Open Records website which covers the topic in some detail (although it’s always a good idea to review the law itself). Here are some highlights.

Act 22 applies to “any audio recording or video recording made by a law enforcement agency” — the Right-to-Know Law does not apply to requests for those recordings.

Act 22 defines “law enforcement agency” as:

  • The Office of the Attorney General;
  • A District Attorney’s Office; or
  • An agency that employs a law enforcement officer.

Requests for police recordings must:

  • Be sent within 60 days of the recorded event;
  • Be sent to the law enforcement agency’s Open Records Officer;
  • Include the date and time of the event; and
  • Include the requester’s relationship to the event.

In addition, if the recording was made inside a residence, the request must identify every person present (unless their identities are unknown and not reasonably ascertainable).

After receiving a request, the agency has 30 days to respond. A request may be denied if the recording includes:

  • Potential evidence in a criminal matter; or
  • Information pertaining to an investigation or a matter in which a criminal charge has been filed; or
  • Confidential information; or
  • Victim information; and
  • Reasonable redaction will not safeguard the potential evidence or the information.

If a request is granted, the agency can charge “reasonable fees” (which is undefined in the law) for a copy of the recording.

If a request is denied, the requester has 30 days to file an appeal with the appropriate Court of Common Pleas. There’s a $125 filing fee, and the appeal must include:

  • Copies of the request and any response(s);
  • Proof the agency’s Open Records Officer was served with the appeal; and
  • If the recording was made inside a residence, proof that everyone who was in the residence was served with the appeal (unless their identities are unknown and not reasonably ascertainable).

Act 22 does allow for the discretionary release of police recordings: Nothing in the law precludes a law enforcement agency or a prosecuting attorney with jurisdiction from choosing to release an audio or video recording, with or without a written request. (In certain cases, the law enforcement agency can only release the recording with the written permission of the prosecuting attorney.)