The McShane Firm, LLC - Law Offices

Records agency establishes precedents

In its first year, the Office of Open Records has settled a variety of requests, but it seeks relief from excessive court appearances.

The Patriot News

Sunday September 27, 2009

Back in 2008, attorney Justin McShane often met resistance when he’d seek records from state and local government. He’d get every excuse in the book, he said.

That changed after the Right to Know Law of 2008, which made the presumption that records are public unless government can prove otherwise. The law took effect at the start of this year. People have requested a variety of documents from local governments and state agencies, most commonly financial records.

In questioning whether witnesses to an alleged murder could have seen what they claimed, McShane successfully got records from the city of Harrisburg regarding light fixtures in the area.

When a prosecutor claimed a police officer’s actions were justified because it was a high-crime area, he obtained crime data to prove it wasn’t, he said.

With the presumption now that records are open, more records are available to use in defense, he said.

“Without that presumption, it was difficult because there was no uniform presumption in favor of openness,” said McShane, who also is a Central Dauphin School Board member. “It was a hodgepodge of different cases that really didn’t have any sort of uniformity whatsoever.”

Some of McShane’s requests have been handled immediately, but in some instances the records he wanted were withheld.

When that happens, the state’s Office of Open Records steps in. Intended as a mediator between people and their government, the office has handled 807 cases since Jan. 1.

If the person or government agency disagrees with the office’s decision, they can appeal to Commonwealth Court or the Court of Common Pleas. That’s led to an unintended and time-consuming wrinkle: The office’s nine-person staff often has to defend their decisions in court, instead of the person making the request and government agencies.

“We’re basically turning into a small litigation firm, which I don’t believe was the intent of this law,” Executive Director Terry Mutchler said.

That courtroom time has taken time away from the core mission of the office: settling disputes and educating residents and government on how the law works, Mutchler said.

How to apply the law becomes clearer after every case. With more precedents established, and continued education on the law, more right-to-know requests could be accurately denied or granted initially, instead of being appealed to the state’s office, Mutchler said.

She plans to gather all the data after one year, “kick the tires” and re-evaluate what changes might be necessary, she said.

“If it needs revisions, I’ll go back to the Legislature and say, ‘If this is the result you want, here’s the things you need to do,’” she said.

Sen. Dominic Pileggi, R-Delaware, agreed that the office shouldn’t be forced to defend itself in court. If it’s not fixed through the courts, it could get attention in the Legislature, he said.

“They certainly could intervene, but I don’t think they should be a necessary party to every such appeal,” Pileggi said.

Otherwise, Pileggi has been pleased with the new law.

“The acceptance of such a dramatic change in the way citizens interact with their government, the smoothness of that transition, has been remarkable,” Pileggi said.

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