Pennsylvania’s open records law lacks teeth to discourage government agencies from appealing even if the state Office of Open Records determines that a record should be public, Melissa Melewsky, media law counsel for the Pennsylvania Newsmedia Association said this week.
Under state law, if an agency or government office declines to provide a record that as a member of the public has requested, the citizen has the right to ask the Office of Open Records to determine whether the document is public or not, Melewsky explained.
But, even if the Office of Open Records determines that the record is public, there’s no real disincentive to prevent the agency from immediately appealing that decision to the county or state appeals court, she said.
Without a realistic threat of having to pay legal fees for the records requester, “if the agency loses” in an Office of Open Records determination, “they get a complete do-over” by appealing, she said.
Access to public information and debates over what is and what s not a public record are part of the focus of this week’s Sunshine Week, an annual news industry drive to stress the importance of open government.
The state news media trade group is seeking to get Pennsylvania law changed so that government agencies here have to pay legal bills when they lose legal fights over government records, Melewsky said.
No legislation to do that has been introduced yet, she said.
Judges who hear such appeals can order the government agency to pay the legal fees of the citizen, she said.
The state Supreme Court in December upheld a lower court’s 2018 decision ordering the state Department of Corrections to pay $118,000 in legal fees run up by the Uniontown Herald-Standard during a fight over records about inmate health stemming from concerns about their exposure to pollution from a nearby fly ash dump.
Such rulings are uncommon though, Melewsky said.
“There have been a handful of Right-to-Know Law cases where fees were awarded, but decades of RTKL jurisprudence shows that PA courts simply do not award RTKL fees on a regular or predictable basis when requesters win,” she said.