Thursday, April 16, 2009

Is this what you call reform?

An editorial from Tim Williams, President of the Pennsylvania Newspaper Association

Reform and transparency have been the topic of much discussion in the last few years. There has been a lot of talk, some action, and now a proposal that would be a huge step in the wrong direction.

I'm talking about a push by local governments to take public notices out of newspapers and put them on government Web sites. They claim that it would be cheaper and more convenient for the public. At best, these claims are misguided. At worst, they are misleading and promote government secrecy and cronyism.

Make no mistake about it. This proposal is not about saving money. It’s about limiting access and hiding government action from the public.

Let’s examine the claims used to promote Senate Bill 419.

First, supporters claim that putting public notices on government Web sites would save money. Not so. Public records show that regardless of a municipality’s size – from the City of Philadelphia to the smallest borough – only about 1/2 of 1% of operating expenditures is spent on public notices – and often less. Even advocates of the bill admit that it won’t solve a single fiscal problem.

And don’t forget the cost of creating the government Web sites – which must be secure, archivable, and current. A Department of State Web database site cost over $600,000 initially, with an annual cost of about $60,000. And that’s only one Web site. This bill would invite every local government to create its own.

Of course, those figures don’t even begin to calculate the negative cost to the public – of not having an independent, verifiable repository for public notices. What is the cost of not knowing that your school board is about to raise your taxes, because the meeting notice was hidden on its Web site? What about not getting notice that your neighbor wants to build a garage on the property line you share? Don’t you want to know that a developer has applied to build a new strip mall on the field behind your home?

Those pushing this bill also claim that it will be “easier” for the public to find notices on government Web sites. Again, not true. First, the bill does not establish any standards for how or where these notices must be placed. As a result, the 4,000+ local governments in Pennsylvania would likely put notices on their individual sites. Good luck finding them there, if you even know where to look.

Do the bill’s supporters know that web traffic statistics show that very few people go to government Web sites? If this bill becomes law, public notices will be effectively hidden from public view and could be manipulated to benefit “friendly” contractors or developers. No reform there.

Even more significant, Census figures show that many Pennsylvanians – up to 30% - still do not have Internet access. Those people will be completely cut out of the process. Who are our elected officials serving with this bill? Certainly not those voters.

Finally, newspapers already post notices on the Internet, at no cost to government or the public. In 1999, Pennsylvania newspapers created, a robust,searchable, database of public notices published by newspapers across the state, uploaded daily.

Public notices are important. They are part of the three-legged stool that protects the public’s right to participate in government – including public records, open meetings, and public notices. Allowing governments to control their own Internet notices would eliminate independent, verifiable notices and would be tantamount to the fox building the henhouse and deciding how strong it needs to be—or not. That’s not our idea of reform.

Do newspapers benefit from public notices? Of course. But we all benefit when we know what our government is up to. Newspapers, more than perhaps any other business, serve the public interest by informing the public about government activities and spending. They accomplish this by pushing for greater access to government, studying public records, covering local meetings, and publishing public notices.

Public notices must remain public. Please write, telephone, or e-mail your Senators today and urge them to vote no on Senate Bill 419.

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Tuesday, April 7, 2009

"Draft" policy not a public record

In a disappointing decision, on March 23, 2009, the Office of Open Records found that a draft policy that was distributed to a school board for deliberation at a public meeting - and approved at that meeting - was not a public record. See Meloy v. Blairsville-Saltsburg School District, AP 2009-0094. In that case, Dr. Meloy requested the version of Policy 010: Conflict of Interest/Anti-Influence that was distributed to all nine Board members at a regular,open meeting on February 4, 2009. Copies of the "draft" policy were not provided to the public at the meeting, however, the Board discussed the policy and approved it at that meeting.

The new Right to Know Law makes it clear that records that are presented to a quorum of a Board for public deliberation are public records, unless they are otherwise exempt under the Right to Know Law (section 708(b)(10)). We interpret this to mean that most records in a board packet become public records at the time that they are distributed to a quorum of the board (assuming that they are intended for public discussion). There is, in section 708(b)(9) of the law, an exemption for "drafts," and the Office of Open Records found that this policy was exempt as a draft.

The problem with interpreting "draft" this broadly, however, is that it virtually eliminates the provision in (b)(10) that makes board packets presumptively public. Isn't just about everything in a board packet subject to being called a draft?

The intent behind the "board packet" provision in (b)(10) is to allow the public to follow along with board discussions about issues that affect them, by having access to the documents that are being discussed. In our opinion, the only way to give meaning to both (b)(9) and (b)(10) is to interpret (b)(9) to mean internal, working drafts. Once a document is presented for public deliberation under the Sunshine Act, the public has the right to review and understand it. Access also ensures that interested members of the public have a "reasonable opportunity to comment" on matters that are before a board, as required under the Sunshine Act. In this case, the "draft" policy was presented to the board, discussed at a public meeting, and approved, without any opportunity for the public to review it.

Next post, we intend to review some of the OOR's decisions that are pro-open government - and there are many.


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Wednesday, April 1, 2009

Office of Open Records Issues Damaging Decision

In Ford v. Northampton Area School District, AP 2009-0123, the Office of Open Records (OOR) has dealt a blow to open government, apparently finding that a budget discussion among a quorum of a school board was not "deliberation" for Right to Know Law purposes because it was, in the words of the OOR, an "informal" discussion. If this decision stands, it could have terrible repercussions for the public's right to know.

In Ford v. Northampton Area School District, AP 2009-0123, William Ford, a reporter for The Morning Call (Allentown) requested copies of a budget proposal that the Northampton School Board had discussed at a public meeting. The Board provided the draft budget, but redacted dollar figures from the document. Ford argued that the entire budget proposal was a public record under the new Right to Know Law, and we agree.

The School Board argued that exemption 708(b)(10) of the Right to Know Law allowed it to redact the budget figures. That section allows agencies to withhold certain internal, predecisional, deliberative documents from the public. It provides, however, that the exemption does not apply to documents presented to a quorum of an agency for deliberation at a public meeting. In other words, documents that are in a school board's "board packet" become presumptively public when they are presented to a quorum of the school board for the purpose of public discussion. There are limited exceptions to this rule, but none are relevant here.

The OOR agreed that the Right to Know law does not protect a record that is submitted to a quorum for deliberations at a public meeting. It found, however, that the draft budget was not presented to a quorum for "deliberation." According to the OOR, the budget discussion was informational and therefore the School District could redact the budget figures. In reaching this conclusion, it emphasized that the board did not make any decisions regarding the budget at the meeting in question.

This analysis is not only incorrect as a matter of law, it is damaging to the public's right to know - and threatens to set us back over 20 years, to a time when the Sunshine Act allowed agencies to hold many discussions behind closed doors.

It's worth taking a look at the history of the Sunshine Act. As originally adopted, Pennsylvania's Sunshine Act required government agencies to hold open meetings only when they were voting or taking official action. Not surprisingly, this meant that many agencies held their meaningful discussions and debates behind closed doors, only letting the public in when it was time for the final vote. As a result, the public knew "what" the agency had decided, but nothing about "why" a particular decision was reached.

In 1987, the law was amended to rectify this. As a result, today's Sunshine Act not only requires agencies to take all official action in public, it also requires them to deliberate most matters in public (there are limited exceptions for personnel, litigation, and certain other topics). "Deliberation" is defined as "the discussion of agency business held for the purpose of making a decision."

Since the 1987 amendments, there has been much debate and discussion about what constitutes "deliberation," and the Pennsylvania Courts have weighed in on a number of occasions. One thing is clear, though, that a decision doesn't have to be imminent for an agency discussion to constitute "deliberation." See Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth. 1989), where the Court found that a private conference among three members of a township board of supervisors concerning an amendment to a zoning ordinance was "deliberation" of agency business, even though no official action was expected to be taken.

Agencies sometimes point to language in court decisions to support their argument that board members may informally discuss matters without violating the Sunshine Act. See, e.g., Conners v. West Greene School Dist., 569 A.2d 978 (Pa. Cmwlth. 1989), appeal denied, 581 A.2d 574 (Pa. 1990)(Reference in newspaper that several board members apparently discussed a budget issue during a meeting recess not sufficient to find a Sunshine Act violation). It is important to understand these cases in context, however. In Conners, for example, there was no actual evidence that budget issues were discussed during the recess. Just as significantly, there was no allegation or evidence that a quorum of the board was involved in the alleged discussions.

The Sunshine Act requires agencies to deliberate most issues at an open, advertised meeting. The "Board packet" provision in the Right to Know Law was intended to allow the public to "follow along" with these public discussions, by allowing interested citizens access to records that are being discussed by a board at an open meeting. Having access to records, as well as meetings, is the only way for community members to understand and participate in their government.

In Ford, there is no dispute that a quorum was present, that the budget proposal had been presented to a quorum, and that the proposal was discussed at a public meeting subject to the Sunshine Act. If the OOR intends to redefine "deliberation" to exclude budget discussions that occur prior to a final budget vote, we should all be very concerned. For that "definition," if adopted by local government, could mean that none of the budget discussions (until the final vote) have to occur in public. We've already been down that road. Let's not head that way again.

We recognize that the OOR does not have jurisdiction over Sunshine Act disputes, but we urge it to reconsider its definition of "deliberation" in the Right to Know context, and to protect and preserve the public's right to know.

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