Pennsylvania citizens won more access to government records and meetings this year in what legal experts describe as modest improvements to transparency. They got better access to ski safety inspection reports, video from police body cameras, details of the state’s medical marijuana industry, the names of people seeking vacant judgeships, and custody records of a prominent U.S. Senate candidate accused of abusing his estranged wife and children.
The changes came because of a bill updating the state’s open meetings law, decisions by the Office of Open Records and court rulings.
Paula Knudsen Burke, a transparency lawyer who deals with these issues on a daily basis, rates the state’s openness statutes a “B-minus — up from a “C-plus.”
“It shouldn’t take a treasure hunt to find public documents,” said Knudsen Burke, the Pennsylvania-based attorney for the Reporters Committee for Freedom of the Press and a former investigative reporter for The Caucus.
The effectiveness of the public-records law, a decade after it went through a major overhaul, is still problematic in some respects, Knudsen said.
— There is often a 35-day wait for documents. The waiting period is supposed to be five days, with an additional 30 days if legal review is necessary. State and local agencies have routinely claimed the 30-day extension for legal review, meaning the fulfillment of most requests takes 35 days.
— The Office of Open Records sometimes rules in favor of requester appeals, and the government agency “sits on” the ruling and refuses to provide the records, Knudsen said. That can effectively quash the appeal, she said, because the citizen chooses not to spend the money to hire a lawyer.
— A survey of 135 local government agencies by the open records office found that half failed to post complete information about how to file a Right-to-Know-Law request. The survey, conducted earlier this year, found five of the agencies had no website and 12 that provided no information on the Right-to-Know Law whatsoever. Ideally, those local governments should publicize how to contact the Right-to-Know Law officer, the name and location of the appeal agency, and a records request form.
— Most of the 1,518 government entities — counties, school boards and authorities — that received Right-to-Know Law requests from the Commonwealth Foundation “ignored the request entirely or denied the request outright,” said spokesman John Bouder. The Libertarian-leaning think tank had been conducting a study of taxpayer-funded lobbying and got responses to only 40% of its requests. Sixty percent were ignored entirely, a figure senior vice president Nathan Benefield called “abysmal.”
The basic flaws of the law can be aggravating, said Eric Epstein, a frequent requester and co-founder of Rock the Capital, a state reform group.
“It’s been a very long path toward openness and transparency,” Epstein said.
Melissa Melewsky, media law counselor for the Pennsylvania NewsMedia Association, said she is “cautiously optimistic that the transparency pendulum has begun to swing toward openness.”
The changes this year include requiring agendas 24 hours in advance of a government meeting, with some exceptions.
In an unexpected development, the state Senate voluntarily decided to post its lawmaker expenses online.
The move came after a series of investigative stories by The Caucus and Spotlight PA revealed excessive and highly questionable House and Senate spending with little accountability.
The lack of House action to disclose expenses regularly and independently online “is disappointing,” Epstein said.
“All in all, I think considering all the strain, agencies, requesters, courts and OOR were under due to the pandemic, transparency progressed through 2021,” said Craig Staudenmaier, a First Amendment lawyer in Harrisburg.
“There were some initial stumbles by many of the commonwealth agencies and local ones as well initially, but as time progressed, this eased somewhat.”
An ongoing concern, Staudenmaier said, is the increasingly frequent claim by agencies that many records requests aren’t specific enough. The open records office and courts may be growing sympathetic to that reason for denial, he said.
Epstein said he expects progress on open records to be “incremental.”
Jenn Topper, a spokesperson for the Reporters Committee for Freedom of the Press, said Pennsylvania was one of five states selected in 2019 to have a full-time transparency lawyer.
“With the state’s Right-to-Know Law only a decade old, there is substantial opportunity to create favorable case law for transparency, as well as to address the problems in the law,” Topper said.
The committee’s work by Knudsen Burke, and at times other lawyers, included helping LNP | LancasterOnline, whose parent company LNP Media Group publishes The Caucus, secure the release of more than a dozen hours of body-camera footage from the evening of Sept. 13, 2020, when protesters clashed with law enforcement officers outside of the Lancaster City Bureau of Police during demonstrations demanding police reform and accountability, Topper said.
The committee successfully defended The Caucus after former top Senate Republican Joe Scarnati sued two reporters for copying costs of campaign expense records.
A positive example and win for transparency occurred after The Morning Call of Allentown obtained ski safety inspection records, Melewsky said.
“After that decision was handed down by the OOR, the Department of Labor announced that it would begin posting the records on its website,” she said. “A great result in that it spurred the department to make records it had once denied affirmatively available to everyone.”
When Office of Open Records decisions are appealed to courts, the results can be positive — or not — for transparency.
A Common Pleas Court judge’s ruling to protect the public’s access in a Butler County custody case upended the race to replace the retiring U.S. Sen. Pat Toomey, one of the most closely watched and consequential races of the 2022 midterms.
Sean Parnell, the former candidate endorsed by former President Donald Trump, had asked Judge James Arner to close the case to reporters and seal public documents. Parnell ultimately lost the case to his estranged wife, Laurie Parnell, to whom the judge awarded custody of their three children.
But it was testimony during the trial that forced Parnell to abandon his campaign. Laurie Parnell claimed Sean Parnell choked her, angrily demanded that she get an abortion, struck their son so hard he left a handprint through the boy’s shirt and once hit a closet door causing it to swung into one of their children.
Parnell denied the allegations.
Potential voters learned of the accusations because the Pittsburgh Tribune-Review and The Philadelphia Inquirer in October opposed Parnell’s motion. The Inquirer, in a brief filed by the Reporters Committee for Freedom of the Press, argued Parnell’s “personal conduct is of significant interest to the public as he campaigns for a six-year Senate term.”
Parnell’s departure upended the race.
Parnell, a decorated combat veteran and frequent guest on conservative talk news shows, “was a favorite, though not necessarily the favorite” in the Republican Primary, said G. Terry Madonna, a longtime political analyst, professor and public speaker.
“Could he return? He could. Is it likely? No,” Madonna said. “It’s just too damaging.”
Voters who would have followed Trump’s direction and supported Parnell are now up for grabs, leaving room for new candidates, including Mehmet Oz, a cardiothoracic surgeon and TV personality who entered the race the following week.
Setback in court
The transparency some courts giveth, others taketh away.
Commonwealth Court dealt a blow to the public’s right to know in June, when it ruled that Allegheny County District Attorney Stephen A. Zappala Jr. didn’t have to disclose key details about a sprawling surveillance network he built in western Pennsylvania.
The Caucus learned in 2019 that Zappala’s five-county camera network used cameras made by Chinese manufacturers Dahua Technology Co. and Hangzhou Hikvision Digital Technology Co. The cameras are so vulnerable to cyberattacks that the U.S. Congress declared them to be threats to national security and barred their use in federal facilities.
Hikvision has ties to China’s military, and both companies supplied equipment that the Chinese government uses to track ethnic minorities. Like those cameras, the ones they supplied to Zappala have facial-recognition capability. What’s more, Zappala hired a private contractor to monitor the network, awarded him a no-bid contract and fought to keep his identity secret.
A legal team from the University of Virginia Law School First Amendment Clinic and the Reporters Committee for Freedom of the Press represented The Caucus in a two-year legal battle over records that could illuminate the extent of the cybersecurity risk posed by the network, which is connected to several law enforcement agencies in the region.
A panel of three Commonwealth Court judges upheld a lower-court ruling that disclosing the types of cameras and the identity of the private monitoring company would increase the risk of cyberattacks. Documents independently obtained by The Caucus showed the contractor hired by Zappala was Security Consulting Solutions Inc., owned by John Hudson.
Operators of other government-run camera networks disclose details of their camera equipment and who has access to it. In some cases, such as the City of Lancaster, operators even publish maps of the camera locations.
“2021 was a further example,” Staudenmaier said, “of the baby steps the commonwealth continues to take toward greater openness and transparency, but baby steps are better than no steps.”
The courts did deliver a winner, though.
Clarity on judges
In November, the culmination of a nearly two-year legal battle by The Caucus and LNP | LancasterOnline shattered some of the secrecy that typically surrounds the appointment of state appellate court judges.
A successful Right-to-Know Act appeal supported by a Commonwealth Court decision earlier this year was a breakthrough for transparency advocates. It resulted in the release of documents by the governor’s office showing what the public wasn’t told when Gov. Tom Wolf appointed Republican lawyer Drew Crompton to the Commonwealth Court in 2019.
Wolf’s office, following a decades-long tradition of keeping judicial applicants’ names out of public view, had refused to provide copies of applications, the names of applicants and even the total number of lawyers who sought an appointment to an open seat on the court.
What the public didn’t know when Crompton was appointed: 17 others asked the governor to review their applications, including two law school professors, two top deputies in the attorney general’s office and experienced litigators from Pittsburgh and Harrisburg.
Crompton ran for the seat and lost in the November election.
There should be no less transparency in a judicial appointment than in an election, when the names, background and bar ratings are provided to the public, Melewsky said.
Katie Townsend, legal director for the Reporters Committee for Freedom of the Press, which represented The Caucus in its lawsuit, said the organization hopes “the Commonwealth Court’s decision in this case and the final disclosure of documents this week will improve transparency into this process.”