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Craig J.
Staudenmaier, Managing Partner, Nauman Smith
Shissler & Hall and general counsel to the
Pennsylvania Freedom of Information Coalition. A recent example involved the 19-month battle with PHEAA to gain access to the financial records of its spending on Board retreats and other matters. Also, last week the Pennsylvania Supreme Court ordered the release of Penn State employees' salary information for those who are members of the State Employees Retirement System (SERS). SERS agreed with the The Patriot News and its reporter, Jan Murphy, in November 2004 that the salary records requested were public and ordered their release. SERS routinely releases this information for every other member of the System. The Treasury also guarantees these benefits should the System's income be insufficient to do so, including benefits payable to Penn State employee members, and the University uses a portion of its state appropriation each year ($348 million in 2007-08) to fund those benefits. However, another 3 years would elapse, with each appellate court upholding the public nature of these records, before they are finally released. Our opponents often say our clients' efforts are just to "sell newspapers" and cause public employees to "waste time and precious funds" opposing the requests, or responding to requests when they could be doing other "more important" things. When you read or hear about these cases in the news you may ask yourself, "Why is it important to me?" Pennsylvania has had a "Right to Know Law" (RTKL) since 1957. However, it is consistently rated as one of the worst in the nation, third from the bottom to be exact. The reason for this: the government's records are presumed secret unless you, the citizen, can prove they fit into two narrow, limited categories. Even if you can, you then must additionally overcome a variety of exceptions in the law against their release. In other words, you, as a citizen, must prove you have a right to see the records your government keeps at your expense. What if it were you asking to see your local township's budget or check ledger or the employment contract of your school district's superintendent, and you were told "no"? Would you have the resources to mount a years-long legal battle to obtain what is clearly a public record? These are not made up or far out scenarios, but are real life examples of what courts have held are clearly public records, which are being denied to citizens daily right now. The right of a citizen to see government in action and to see how it spends taxpayer money, to whom it awards contracts, or who its officials are entertaining would seem to be unquestionable considering the principles upon which our system of government is built. However, such is not the case currently with many government records in Pennsylvania. These are your records. If I were to tell you that you could not see a copy of your own check ledger or your own employment contract, you would be rightfully upset. The government's records are no different, because they are maintained for you at your expense. More importantly, they provide you the ability to be informed and to monitor the actions and spending of your government-a fundamental principle of our democracy and this Commonwealth. As Justice Fitzgerald stated in the Court's opinion in the Penn State case: "As stated in the Pennsylvania Constitution, "[a]ll power is inherent in the people, and all free governments are founded on their authority and instituted for their peace, safety and happiness"...Our government exists for the people, and this Court must interpret all legislation accordingly.... [T]ransparency has been the responsibility of this government since its inception. The RTKA is merely a codification of principles already deeply imbedded in Commonwealth policy." Public records are created by public bodies using material and personnel paid for with public funds. These records affect your daily life and you have a right to see them. When they are improperly hidden from you, your ability to judge whether public officials and agencies are properly fulfilling their duties to the public with the money and trust which you have given them is substantially impaired. You as an individual normally cannot wage the fights to insure your rights of access. Nor should you have to if the RTKL was what it should be and as Justice Fitzgerald recently affirmed it is meant to be in Pennsylvania. News organizations and reporters fortunately fight those battles when the average citizen would be unable to do so because of the tremendous investment of time and money necessary. Knowing average citizens do not have the resources to wage these battles, some agencies and officials simply deny access to public records when they want to keep something hidden from public view. They hide behind the currently inadequate law, knowing their actions likely will not be reviewed by a court. I think there would be even more routine denials without the few stalwart citizens and news organizations willing to wage these important appeals. Right now there are bills pending in both the Senate and House which would make fundamental, much needed changes to the RTKL. On the plus side, they would create a presumption of openness for all government records unless they fall under a defined exception, would include certain records of the legislature which are currently exempt from RTKL disclosure and create a central "clearing house" for open records review. On the negative side, there are roughly 28 exceptions in both versions. There are also provisions for fees which could prove an impediment to average citizens obtaining public records. The Senate passed its version, Senate Bill 1-2007, on November 27 and the House is slated to consider its version when it reconvenes next week . Familiarize yourself with them. They are available on the General Assembly's website at www.legis.state.pa.us or on the Pennsylvania Freedom of Information Coalition website at www.openrecordspa.org. Contact your senator and representative. Push for the broadest possible access with reasonable limited exceptions. It is vitally important to you and those generations of Pennsylvanians who will follow us. So, the next time you read one of these stories in the newspaper, and you ask yourself, "Why is open records reform important to me?", pause and also ask yourself, "Who do I want to decide what I can and cannot know about my government-it or me? For more information, visit here www.nssh.com. For more information please contact Craig Staudenmaier, Managing Partner, Nauman Smith Shissler & Hall, LLP at cstaudenmaier@nssh.com or by phone at 717.236.3010, or Jamie Fulginiti, Hershey Philbin Associates at jfulginiti@hersheyphilbin.com or by phone at 717.975.2148. |
