Courts Get Greater Role in Open Records Cases

By Eric Boehm | PA Independent

HARRISBURG — A state Supreme Court ruling will give courts more authority in dealing with the state's open records law, but not everyone is convinced that's a good thing.

At the top of the list is Chief Justice Ron Castille, who issued a scathing dissenting opinion attached to the court's 4-2 ruling that upheld a lower court's establishment of "broad powers" of review in open records cases.

The chief justice says expanding the role of the judiciary in open records cases will add costs to the state and taxpayers who are seeking records. He also slammed the General Assembly for failing to address the problems with the right-to-know law.

The situation has created "the worst of worlds," said Castille. "An incomplete or unsatisfactory administrative process that all-too-often forces unready and fact-bound merits disputes into the court system."

The case, Bowling v. Pennsylvania Emergency Management Agency, started with a right-to-know request from a reporter at the Pittsburgh Tribune-Review who sought information about millions of dollars in grants from the Department of Homeland Security to the state. The request initially was denied.

When a right-to-know request is denied by a government agency, the first stop is the state's Office of Open Records, created by the General Assembly in 2008 when the state's open records law was rewritten.

The OOR collects information and makes a ruling on whether the records sought are covered by the open records law. But the office's decision can be appealed to the Commonwealth Court if both parties are not satisfied with the outcome.

The question before the Supreme Court in the Bowling case was whether the Commonwealth Court is allowed to use "broad powers" to collect more information about a particular case, or if it must be limited to the information provided by the OOR on an appeal.

In Bowling, the Commonwealth Court decided it had the power to seek more information about right-to-know cases that are brought on appeal. The Supreme Court affirmed that ruling in the 4-2 decision.

Writing for the majority, Justice Seamus McCaffery said the OOR was doing a good job of limiting how many cases end up in the court system.

Since the OOR was created, it has handled about 7,000 cases. Of those, around 500 have been appealed to the court.

"Clearly, these statistics, if accurate, erase any doubt that the General Assembly has created a superfluous review regime," McCaffery wrote.

But Castille said he was worried the courts will get bogged down by right-to-know cases if they take it upon themselves to go beyond the existing record, adding time and expenses to the cases.

Castille said it should fall to the General Assembly to improve parts of the state right-to-know law to limit the number of cases that come before the court, or at least better define the powers of the OOR and the Commonwealth Court in such cases.

Castille said he could not recall any other issue that "so quickly generated so much litigation involving seemingly overlooked foundational matters."

"What is plain beyond question is that the statute is in need of significant revision and refinement," he said.

As it turns out, the Legislature is in the process of trying to do exactly that. Several hearings on the open records law have been held in the past year, with some legislative leaders eyeing the fall session for major work on changes.

Senate Majority Leader Dominic Pileggi, R-Chester, who authored much of the previous rewrite of the open records law in 2008, said the Bowling case reinforces the need for procedural changes in how the law is applied by the Office of Open Records.

"The challenge remains to appropriately balance the need for due process with the law's goal of providing speedy access to public records," Pileggi said.

He expects the state Senate to tackle the issue this fall, and has introduced a bill to give the Office of Open Records greater flexibility in handling cases, including the ability to hold hearings.

Kim DeBourbon, executive director of the Pennsylvania Freedom of Information Coalition, said she is concerned that agencies are using the appeals process deliberately to drag out requests for information. She said she worries that a rewrite of the law will make that appeals process even more difficult for citizens to navigate.

"If agencies with taxpayer-funded solicitors can appeal and appeal again, that's not how the law was supposed to work," she said. "Once it gets to court, you have to be able to afford legal counsel and who knows how long the case will take."

DeBourbon said state lawmakers should address those concerns by empowering the OOR to enforce their own rulings, rather than allowing the government to "waste time" with appeals.

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