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10/28/2007 3:34 AM

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It appears more likely than ever that Pennsylvania is on its way to having a new open records law. The fear now is that we'll get something labeled "reform" that won't change anything at all.

In fact, we might actually go backwards. The bill now before the Legislature has been amended to the point that, according to Tim Williams of the Pennsylvania Newspaper Association, it would make access to public records more difficult!

As originally proposed by Rep. Tim Mahoney, D-Fayette, House Bill 443 was a good bill. It created the presumption of access to agency records but contained a list of exemptions for medical records, documents that would disclose ongoing police investigations and documents related to homeland security.

That was before the House State Government Committee got hold of it. The committee replaced Mahoney's bill with language that would close much of Pennsylvania government and rushed it through in less than a day. The amendment was not available to the public until hours before the committee met, and significant amendments were added without public input. The committee even suspended procedural rules to rush the bill through.

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Let us mention one ironic aspect of the finished product. A flaw in the present law is that it was written with 1950s technology in mind - when records were created using pen, paper and manual typewriter. This bill would bring us into the computer age all right, but only as an excuse to keep more things closed - by preventing public access to all agency e-mail. As Williams said, that's an invitation to officials who want to keep something secret to just send it by e-mail. Pennsylvania, by the way, would become the only state in the nation with that kind of exception.

The bill contains a blanket exemption for "all communications between a legislator and constituent and all document related to that communication." Certainly there are matters that would warrant confidentiality - a problem with medical assistance, for example - but why exempt everything? This could prevent access to even financial records or agency decisions affecting the public if they related in some way to constituent correspondence.

Then there is a blanket exemption for "correspondence and related records by and among a public official, a public official's staff and an agency?" What in the world is the justification for this?

Also exempt would be internal performance audits. So, if an audit found inefficiency, financial waste or even outright fraud in a state or local government agency the public would be forbidden by law to learn about it.

The bill would allow agencies to deny access to records if they found it "burdensome." That's a loophole big enough to drive a truck through.

Then, there is a grandfather clause. The "presumption of access" that is crucial to any records reform would not apply to records created prior to the new law. They would continue to be governed by the old, restrictive standard, resulting in a two-tiered system of evaluating records requests.

So, you could walk into the township office and ask to see a document that ordinarily would be public under the new law, only find out that it is covered by the old statute.

As Tim Potts, of Democracy Rising PA put it, the new standard is "what is the least we can get away with" rather than "what's the best we can do." Sorry, this isn't reform.

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