As part of his request to the state Legislature, Attorney General Rob McKenna is proposing a pilot program to allow members of the public an opportunity to settle their public records disputes with government agencies short of proceeding to a protracted and costly court battle.
It’s a solid request from McKenna that merits legislative approval.
There was a time when most public records requests in this state were filed by members of the news media. Gradually, members of the public understood that records kept in government offices belong to the public, and that as citizens they had a right to inspect those records, educate themselves and expose wrongdoing or government waste. As McKenna says, one of the reasons this state is relatively free of corruption is because we have a citizen-mandated open and transparent government, the foundation of which is the 1972 initiative creating open meetings and open records.
Unfortunately, too many government employees see documents as their private records. Trying to pry records out of the hands of some government bureaucrats can be frustrating and costly.
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But on the flip side, some individuals use the state Public Records Act as a sledgehammer. We’ve seen instances of abuse where individuals have requested volumes of information — information that takes a staff member weeks and weeks to assemble — only to have the requester ignore the pile of documents. Talk about a waste of tax resources.
Some prisoners, too, have learned to abuse the law. They inundate government officials with hundreds of requests costing taxpayers thousands of dollars to comply with. In some cases, inmates hope to catch government officials in a mistake, then use that mistake to receive financial rewards. They ruin it for inmates with legitimate requests.
The Legislature responded in 2009 by passing a narrowly drawn bill that gives courts the ability to block the release of documents sought by inmates in certain cases — if the request is for intimidation or if the records release threatens the security of facilities, staff, inmates or families, or assists a criminal action.
That new law addresses one public records problem, but there are others.
McKenna said inmates are still involved in 75 percent of the cases against the state on public record disputes. They have a lot of time on their hands.
He wants legislators to pass a law taking the financial incentive away from inmates. If they sue and win, they get the records, McKenna said, but they should not be allowed to collect damages.
That proposal is dicey, in our opinion. If the state fails to release a legitimate public record, why shouldn’t the inmate collect damages just like a civilian living beyond the prison door?
What has much more merit is McKenna’s renewed proposal to create a place for citizens to go to settle their public record disputes with government officials short of filing a court suit.
Last year, McKenna and state Auditor Brian Sonntag proposed creating an Office of Open Records to resolve public records disputes.
But that can be an expensive proposition. Pennsylvania’s Office of Open Records began in January 2009 with 10 employees, a half-dozen of them lawyers, and a budget of about $1.2 million.
Faced with a $4.6 billion budget shortfall in this state, McKenna knows his chance of getting money for a new Office of Open Records out of the Legislature this year is slim to none.
Instead, he’s scaled back his plan and is proposing a limited pilot program using the state Office of Hearings Examiner and a pay-to-use plan to see whether mediation and dispute resolution at the hearings examiner level can resolve public record disputes. That would save citizens and state taxpayers from going to court, which is an expensive proposition.
Citizens who believe that they have been improperly denied public records, or given incomplete records, by a government office, could pay a small fee and have the dispute heard by an administrative law judge — much as environmental and other issues are resolve short of court.
McKenna believes citizens would be willing to pay a small amount of money up front to resolve their dispute, especially if it could save them the huge costs of hiring an attorney and engaging in a drawn-out, expensive court battle.
Creating an independent office to review public record disputes is the ideal, but given Washington’s budgetary restraints, McKenna’s idea for a pilot, pay-for-service plan using administrative law judges makes sense. Lawmakers should approve and enact McKenna’s proposal.