Dec 1, 2016 4 min read

An editorial opinion from the York Daily Record:

Among the many ironies contained in Pennsylvania’s open records law, or at least how the law is interpreted by local officials and their lawyers, is that government entities believe that the amount of money they spend on legal fees in resisting the release of information can be kept from public view.

Look at it this way: Say you want to find out, for instance, how much your township spent on consultants for a certain project, and the township declines to release the information. So you file a request under the Right To Know Law, and the township hires a lawyer to fight it. Then, if you want to know how much the township spent to keep that information from you, the township says you can’t have it.

So, what you have here is your local government declining to tell you how it spent your tax dollars and using your money to prevent you from finding out, and then, not telling you how much of your money it spent preventing you from learning how it spent your money.

It’s beyond ridiculous.

Yet, in Pennsylvania, many municipalities believe you should not be privy to that information.

In May, reporters from 19 newspapers across the state asked 190 different government bodies for records detailing the amount of money they spent resisting public record requests. Only slightly more than 60 responded.

Those that did respond weren’t much help. The amounts paid to outside lawyers were often blacked out – redacted, in legal parlance – and in many cases, it was impossible to figure out what was even the source of the legal dispute that resulted in the billings.

Some officials flatly denied requests, saying they were not under any legal obligation to create a record that they said did not exist. Others responded that they did not keep such records in the format that was sought. Some didn’t even respond.

Unbelievable.

And it’s even more unbelievable when you consider that some government bodies did provide legal bills that contained considerable detail. Those entities apparently had no trouble finding the records and releasing them. How do you explain others not being able to produce such records? You can’t.

This is something so basic to the operation of good government, being accountable for how tax dollars are spent, and it’s nearly impossible to get that information in any kind of detail.

Maybe there is a reason for it. Emily Leader, a lawyer for the Pennsylvania School Board Association, told the Associated Press that perhaps redacted information was “probably subject to privilege, and the attorney-client privilege is not something that you would lightly waive.”

All due respect, but how is how much a government agency spent on a public records case, and what that case even entailed, considered “privileged”?

It would make sense that if such records included information about legal strategies, or admissions by public officials. But legal bills?

It makes no sense.

Yet, when it comes to Pennsylvania’s public records law, a lot doesn’t make sense. It effectively places the onus on those seeking information – taxpayers seeking information about how government is representing their interests – to prove their case.

In many cases, those seeking public records don’t have the resources for a protracted battle. In many instances, decisions by the state’s Office of Open Records to release information are appealed to Commonwealth Court. Those asking for the information then have to decide whether to spend a significant amount of money on legal fees to fight the appeal.

It has turned into, as one former newspaper editor and publisher put it, “a game of chicken,” the AP reported.

The problem is that the law is poorly written. Sections of it, one lawyer said, simply don’t make sense. It will take an act of the Legislature to clean it up, but don’t hold your breath. The Legislature is traditionally resistant to opening up government.