Spending on blocking public records requests is murky
EDITOR’S NOTE — This is the third of four parts on a survey of how local government agencies and school districts in Pennsylvania are responding to requests for public records under the state Right-to-Know Law.
HARRISBURG — How much do Pennsylvania governments and schools spend on outside lawyers to fight access to government records? That’s hard to say. The records they provide on legal billings are often heavily blacked out.
Agencies surveyed in a test of the state’s Right-to-Know Law generally agreed to turn over documents when asked for bills from outside lawyers on work to reject open records requests. But in many cases, redactions made it impossible to glean even what was in dispute.
Employees of 19 newspapers filed requests with 190 agencies for the billing records, and more than 60 produced records of some type. Most of the others said they had not paid any outside lawyers in 2015 for such work.
It is clear, however, that many public agencies are hiring outside lawyers to battle records requests.
Last year, a Pennsylvania School Boards Association survey of 223 open records officers found that 134 districts had paid outside legal fees over the previous two years, including one that shelled out $6,000 to review and redact records from a high school construction project. Another district put its outside lawyer costs for Right-to-Know Law matters at $10,000.
The Right-to-Know survey was conducted by the newspapers in May and coordinated by The Associated Press.
In the survey, some agency officials flatly turned down requests, citing in some cases a provision in the law that says they don’t have to create a record if it doesn’t exist. Others said they didn’t keep legal bills in the form surveyors sought.
Some surveyors were turned down on the grounds that the request was too vague. In several cases agencies either didn’t respond at all or responded within five days — seeking an extra month to reply — and then never got back.
But many others had no difficulty figuring out what records were at issue. Some provided lawyer bills with considerable detail, including the nature of the request that had been denied, the name of the person who had asked for the record, the number of hours the lawyer worked, their hourly rate and their total fees.
Large portions of many of the billing records provided, however, were blacked out.
Emily Leader, a lawyer with the Pennsylvania School Boards Association, said “if it’s redacted, it’s probably subject to a privilege, and the attorney-client privilege is not something that you would lightly waive.”
In Westmoreland County, North Huntingdon Township paid nearly $2,600 over six months to work on five requests, denying them because they involved a criminal investigation, included hiring information before a decision had been made, required redaction of a police report, was considered too vague or involved records they did not have.
Southern York School District didn’t provide any bills but did produce the amount it paid a lawyer for a partly denied request.
Franklin Regional School District in Westmoreland County said it had paid two invoices for three hours of work, a total of $255, but did not provide the invoices or disclose the subject of the legal work.
Decisions by the Office of Open Records can be — and regularly are — appealed to Commonwealth Court. The practical effect is that sometimes people who want records are turned down by the agency, are granted access by the Office of Open Records and then find themselves dragged into court by a government agency, forcing them to decide whether to spend thousands of dollars on their own lawyers or give up the fight.
Former (Allentown) Morning Call editor and publisher David M. Erdman said that the newspaper had up to six challenges going at a time and that some agencies had turned the legal battles into a game of chicken to see how long the newspaper would keep sinking money into fighting for access. Erdman, who helped design the Right-to-Know Law survey, also suggested outside lawyers had an incentive to keep fighting because it allows them to run up their fees.
“With that kind of dynamic, it's easy to see how bureaucrats have perverted the original intent of the Right-to-Know Law," he said.
But Erie lawyer Tim Wachter, who represents several dozen governmental entities on Right-to-Know Law matters, said that the rewrite of the open-records law eight years ago inevitably generated litigation.
“There are sections of the law that are not well-written. There are sections of the law that don’t work practically,” Wachter said. “There are sections that don’t make any sense. Other than getting a legislative amendment, the only way to address that is through the courts.”
As executive director of the state Office of Open Records from 2008 until last year, Terry Mutchler said she regularly heard from government officials who wanted to release records, but their lawyers advised them not to. Mutchler, now a Philadelphia-based attorney, said she believes lawyers need better training.