Pennsylvania legislators are fed up with not being able to get information through the state's Open Records process. Representative Seth Grove has proposed a bill that would require state agents to respond to requests for information even during a pandemic. I get it! I'm frustrated too. Here's why...
I'm still waiting for an official response to a Right-to-Know request sent to the Department of Community and Economic Development (DCED) on January 30, 2020. This is what happened:
> February 7: Counsel for the DCED sent me the an interim response required on February 7, 2020 stating the department required "up to an additional 30 days, i.e., until March 9, 2020 (March 8, 2020 is a Sunday)".
> March 9: Counsel for the DCED asked via email for me to grant them and extension to the end of the week (March 13) to produce the data. I agreed. (What choice did I have? I want the data.)
The pandemic closures hit in March; yet as of June 5 all counties were reopening under yellow or green guidelines and all agencies were expected to fulfill Right-to-Know requests under normal guidelines.
> June 8: I emailed Counsel to check on the status of my request. No response.
> June 15: I emailed the DCED Director to check on the status of my request; he referred me back to Counsel. No response.
> June 22: I spoke to Counsel by phone and was told they needed until the "end of the week" (Friday would be June 26) to generate half of the information, and would need more time to produce the rest. No response by June 26.
> June 30: Counsel emailed data files for half of the request - in PDF format. (The data is produced from Excel, so it takes an extra step to save it in .pdf format.)
> July 1: When I saw the .pdf files, I requested the Excel versions to be sent.
[Note: over the past 4 years I have received similar data for different program years as Excel files. The difference is that .pdf files are static; Excel files are needed for analysis and sorting.]
> July 2: Counsel responded by saying, "... Under the RTKL an agency may provide responsive documents in PDF format. ..."
> July 2: I left voice and email messages for Counsel, the agency Director, and emailed the general mailbox for DCED Right-to-Know requests asking for the Excel files.
> As of July 15: No response.
I have a Right-to-Know the information that I requested. The process in place should ensure that I receive the information. However, the agency that holds the information wields tremendous power and uses many tools to provide or prevent meaningful access to the data.
First, the legal timeline was not followed. The good-faith extension was not followed. Some agencies appear to delay the process until the requestor follows up or gives up.
Next, the agency deliberately changed the data format from one that is useful for analysis and sorting; to one that is static, rendering it exponentially less useful. Rather than sending the Excel version when asked, Counsel opted to stand behind a legal justification for creating this obstacle.
The agency has not provided the data in the second half of the original request.
Readers might be wondering why I haven't just filed an appeal of some sort to force the process along. The final determination letter lays out the appeals process; I have yet to receive the final determination letter.
The public is often at the mercy of state agencies to do what is right.
My experience using the Right-to-Know process over the past four years to request information from the DCED about a dozen times generally followed the same pattern.
> I email the request.
> The law allows the agent 5 work days to acknowledge the request, plus an additional 30 calendar days to send the information. It is not uncommon to wait 37 days for a response, because agents typically respond on the last day allowable by law. At the end of the 30 calendar days, they can grant, deny, partially deny or dismiss the request. I experienced all of these. Sometimes they ask for more time.
In one case I believe I was wrongfully denied public data. I appealed the DCED's decision to withhold the information. I believe the ruling would have been in my favor. I suspect the agency did too, because during the appeal period the agency decided to provide me with some of the denied data and they asked me to cancel the appeal. When I did not cancel, the Appeals Board ruling was: the issue became moot when the agency provided some of the data.
So, were they within the law to deny access in the first place?
Or, were they within the law to give access?
Despite several attempts to find out, I never got an answer.
Another time, I believe I was wrongly denied access to public information and I appealed the decision. The timelines for the appeals process are very strict. With a second denial pending, I was forced to appeal it prior to receiving a response to the first appeal. The Appeals Board upheld the information request denial then used my own appeal to argue against me in the second one.
The public needs a better mechanism to hold state agencies accountable for responding in a timely, fair and meaningful manner to requests for information. It is uncommon in today's political climate for legislators from all parties to agree, yet Rep. Grove's bill moved forward in the House by a vote of 201 - 0, and yesterday from the Senate by a vote of 50-0.
Prompted by delays due to the pandemic, if the bill becomes law, there is a provision in the current version (PN3713) that states:
I hope the attention forces agencies to uphold their responsibility to provide information to the public. Remember, I sent my request on January 30, 2020 - and I am still waiting.
Referenced links:
Office of Open Records Appeals Process. Retrieved from https://www.openrecords.pa.gov/Appeals/HowToFile.cfm
Regular Session 2019-2020, House Bill 2463. Retrieved from https://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2019&sind=0&body=H&type=B&bn=2463
Right-to-Know process. https://www.openrecords.pa.gov/Documents/RTKL/RTKL_Flowchart.pdf
Turner, Ford. July 15, 2020. Bill to compel Wolf administration to answer Right-to-Know requests makes progress. The Morning Call. Retrieved from
Update to Open Records Guidelines based on Covid status. June 5, 2020. Retrieved from https://openrecordspennsylvania.com/2020/03/12/the-rtkl-and-covid-19/