(Susquehanna Valley Policy Institute, by David Atkinson) Pennsylvania’s updated open records law was a monumental upgrade and a major win for advocates of more accessible and accountable state government. At ten years of age and counting, the law occupies a high position on the list of certifiable legislative accomplishments. The reform measure was spearheaded by then Senate Majority Leader Dominic Pileggi, and supplanted decades of failed efforts and a couple of modest improvements. The cornerstone provision of this reform was making public access to records the presumption in most instances.
No matter how well written, a state law is not self-enforcing. Somebody has to police the daily functioning to make sure practice conforms with spirit. Good intentions in law are frequently sandbagged by inconsistent enforcement. Even agencies led by generally conceded good guys can suffer inadvertent or negligent shortfalls in compliance.
The open records law does not have any immunity on that count. The Caucus recently did a revelatory inquiry into the flaws in the website, administered by the state Treasury, created to post state contracts of more than $5,000.
Several agencies appeared indifferent to this responsibility. One large agency was faulted for withholding contracts involving trash hauling, tree trimming, and window washing. The average citizen might have trouble detecting the state security issues involved in those activities. Others apparently used a paintbrush for their heavy redactions of key contract numbers.
There is big money in the universe of state contracts. There is substantial cost in the bidding procedures meant to ensure contracts are fairly awarded. So it makes absolutely no sense to tolerate wink-and-nod compliance or to nickel and dime enforcement.
The conclusion of the review by The Caucus is that, under the current structure, no one is in charge. That does not seem so difficult to fix, and several possibilities are already surfacing. The first impulse is to rewrite the law and toughen penalties. But relying on penalties alone makes it an interagency food-fight played out with taxpayer dollars. Another suggested solution is withholding agency funding until they come into compliance. While that seems a suitable club to wield, it does have an uncomfortable parallel to the frustrating federal shutdown.
Call the cops then? A notable problem with farming out violations of good government precepts to law enforcement agencies is they are busy chasing murderers, abusers, drug dealers, robbers, fraudsters, and other miscreants. Those accused of violating open government requirements tend to rank low on the urgency list.
What about the simpler approach of putting someone clearly in charge? Worth a look.
There is an existing office arguably suited for the job. The Office of Open Records is set up to be an independent operation. It is invested with authority sufficient to do its job without political interference. It has drawn widespread plaudits for its judgments. So why not vest it with a bit more authority that could have a large payoff for the public interest? Add a position that has as its chief responsibility compliance in contract posting. This individual would regularly review the records of agencies large and small to see that the required contracts are posted in a timely fashion. They would reject attempts to heavily redact contracts and diminish their informational value. The directing legislation could determine who applies sanctions on the congenitally noncompliant. The operation could well pay for itself by reducing the volume of right-to-know records requests filed.
Of course, there are a couple of concerns. The office fundamentally plays arbiter on disputes over open records between requesters and custodians. So doing the quasi enforcement outreach posited here would be a different role. But it is not entirely incompatible with seeing to proper compliance with the open records law. Plus, having one agency maintaining the website and another responsible for rounding up the content is not the smoothest setup. Yet, these do not seem insurmountable hurdles if a viable alternative fails to materialize.
Check out any article about open meetings and open records requirements and you find complaints from various officials about the cost of compliance. The story is different when actual numbers are cited. A portal that cost $400,000 to develop and under $10,000 to maintain each year is not a budget-busting item in the sprawling $32 billion enterprise of state government. Whichever method of enforcement is eventually adopted, it is not going to be an extravagance.
There is more than enough wrongdoing across state government to make taxpayers grind their teeth down to the gumline. Thus, baffling insufficiencies in making state operations open and accountable are really head-shaking. As taxpayers see the costs of extended investigations and high profile trials, they undoubtedly wonder why more is not being spent on preventing secrecy. They have a valid point – it is always cheaper to prevent problems.
Truly responsive state government has a two-fold obligation – to shape laws to safeguard the public interest and to ensure that reform purposes are realized through meaningful implementation. Making agencies across state government fully compliant with the open records law will be a significant contribution to transparency and accountability, and a welcome demonstration of leadership by example.
David A. Atkinson is an Associate of the Susquehanna Valley Center’s Edward H. Arnold Institute for Policy Studies