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Lawmakers say open-records bill better, but flawed
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Article RatingA bill created in the state House last week aimed at reforming Pennsylvania’s much-criticized open-records law has an array of loopholes, inconsistencies and mistakes, according to Cumberland County state lawmakers.
Harsh criticism, but open-record advocates go a step farther — they say the bill could actually further restrict the public’s access to government records.
Legislators debated nearly 100 amendments for 13 hours Tuesday before finishing changes to House Bill 443, which would overhaul the 50-year-old open-records law.
Lawmakers agree the biggest change would be the so-called “flip of presumption,” which would make all government records public unless specifically exempted.
The amendments also removed language that would allow state agencies to deny any requests that are “burdensome” and mandated that a panel resolving public-record disputes would be appointed by the state ethics commission.
But the bill still contains exemptions for all e-mail communications, correspondence between legislators and other public officials and would not apply to records.
The exemption for all e-mail, in particular, has angered some area lawmakers.
“It’s a Mack Truck loophole,” said state Rep. William Gabig, R-199.
Officials could use the loophole to hide records in e-mail, he said. If government officials send official records via e-mail, Gabig said, they should be public.
All area Cumberland County House members — Gabig, Glen Grell, R-87, Rob Kauffman, R-89, and Jerry Nailor, R-88 — voted to make e-mails public, except Scott Perry, R-92
Not all e-mail should be private, Perry said, but the law needs to make sure it does not make public e-mails between elected officials and their constituents. Those e-mails can contain very sensitive information, he said.
Kauffman voted to make the e-mails public, but he said he did so only to serve the will of his constituents, who want them open. He personally opposes the idea because he thinks sorting through each e-mail to decide if it’s a public record or spam, for instance, would be impossible.
“I’d take my computer off my desk and throw it away (if e-mail was public),” Kauffman said.
All other area House members agreed that the law needs to protect some form of e-mail communication between their constituents and themselves. The measure was defeated 127 to 69.
The Pennsylvania Newspaper Association, in a press release, said Pennsylvania would be the only state in the country to exempt all e-mail from public access.
Process concerns
Many legislators expressed more concern over the process used to create the bill than the final product.
The bill, originally introduced by Tim Mahoney, D-Fayette County, was almost completely rewritten in the State Government Committee before being reported to the floor. Grell, who’s a committee member, said amendments added to the bill received little consideration because, in some cases, members hadn’t seen them until halfway through the meeting. He called the process “disgraceful” and said the bill was clearly “not ready for prime-time.”
The problems in committee sparked nearly 100 amendments when the bill appeared before the House floor, Grell said.
The steady march of amendments over a 13-hour period left some legislators still trying to decipher what happened.
“After 13 hours and 77 amendments, nobody can tell me what’s in there,” Nailor said. “I don’t care how knowledgeable you are, you don’t know what’s in there.”
Republicans attempted to recommit the bill to committee during the debate, but Democrats blocked the move.
The confusion has caused some lawmakers, including Gabig and Kauffman, to hold off on judgment of the bill.
Some lawmakers have differing interpretations on the bill would and make public. Most legislators thought walking around money, or WAMs, would not be made public under the bill. WAMs are money controlled by party leadership that can be distributed to various projects across the state at the lawmakers’ discretion.
“We need to be able to tell people where their taxpayer money is being spent ... this is a big one,” Gabig said.
But Grell thinks WAMs were covered in the bill under a separate amendment. Regardless, he said, anything that documents how tax money is being spent should be available for public inspection.
Advocates upset
Advocates for open records, however, are not waiting to share their criticism of the bill.
“The amended bill is a significant step in the wrong direction and would result in less access than the public has today,” the Pennsylvania Newspaper Association said in a statement.
Tim Potts, co-founder of the advocacy group Democracy Rising PA, said if sent to the governor’s desk, he would have to consider asking him to veto it.
Pennsylvania deserves the best open-records law in the country, he said, and this bill does not provide that.
Besides the e-mail exemption, Potts is also concerned the bill does not apply to the judiciary and that it sets back the date it would take effect, protecting all legislators from releasing information this term.
The House has pushed back on completely reforming the government’s records’ policy because it’s too entrenched in its old ways, Potts said.
“The corruption in the Legislature is so systemic, if they truly opened things up, they wouldn’t know how to operate,” he said.
The Newspaper Association cited concerns over exemptions for older records, e-mail, inter-agency correspondence and internal performance audits.
“This bill is not reform,” the Association said.
Step forward
But despite the criticism and uncertainty, some legislators said the bill represented a step forward for Pennsylvania.
“The bill is much, much better than what we have now,” Nailor said.
Grell wasn’t happy with the bill after it emerged from committee, but he said Tuesday’s marathon session significantly improved it.
Perry said the bill is poor, but still better than the current law.
But Gabig and other legislators said whatever bill the house passes probably won’t matter — the Senate will likely reject it in favor of its own bill. The House will likely do vice versa to the Senate bill, leading to a conference committee to decide what will reach the governor’s desk.
