Ten years ago this month the state rolled out an updated and much-hyped Right-to-Know Law that included the creation of the first Office of Open Records. The open-records law, among other things, required state agencies to post contracts of more than $5,000 on a website maintained by the Treasury Department and accessible to the public.
It was supposed to be a giant step toward transparency, a one-stop portal to state spending.
But a decade into its existence, the taxpayerfunded service has fallen woefully short of that mission, a Caucus analysis shows. Some contracts are missing. Others are heavily redacted, even when they shouldn’t be.
The website “is a great tool, a powerful tool for transparency, but it’s broken,” said Terry Mutchler, a Harrisburg attorney who served as Pennsylvania’s first open records officer under Gov. Ed Rendell.
Case in point: A Caucus search for contracts held by the attorney general’s office in 2018 found a mere seven results.
Could that be right?
It turns out, no, it wasn’t.
Joe Grace, a spokesman for Attorney General Josh Shapiro, said there was an “oversight” in the agency and that his staff worked on identifying documents that should have been posted.
“You brought it to our attention,” he said. “It was an oversight on our part.”
The attorney general’s office posted 14 more contracts to the Treasury e-Library after The Caucus’ inquiry.
The Right-to-Know Law, though, is devoid of any enforcement mechanism to ensure agencies post contracts.
At least one legislator has suggested a bill to give it teeth.
“The problem is Treasury doesn’t have the teeth to make anyone send their contracts over,” said Rep. Seth Grove, R-York County. “I think it’s ripe for legislative change.”
That change could be allowing Treasury to withhold state funds until an agency uploads a complete contract into the portal, or e-Library, as it’s called, Grove said.
A legislative fix might work. But the best approach, Mutchler said, would be for the Treasury Department to take responsibility for the site and send letters to every agency each year telling them they are required to post the contracts.
“It would appear to me the buck would stop with Treasury,” she said. “It’s within their purview.”
A Treasury spokesman, however, said the Right-to-Know Law does not grant the agency such power.
“Treasury’s responsibility to operate and maintain the site does not include the authority to enforce the compliance of other independent offices or separate agencies to submit contracts,” said Michael Connolly, the spokesman for Treasurer Joe Torsella.
The cost to taxpayers of developing and launching the portal was about $400,000, a department spokeswoman told The Caucus in 2017. Maintaining the site every year costs taxpayers less than $10,000, she said.
REDACTIONS ARE THE NORM
Many of the contracts that are posted on the portal come are saturated with black ink. Redactions, for example, are the norm with rental agreements for the Farm Show Complex in Harrisburg.
While many Pennsylvanians think only of the building’s iconic weeklong celebration of agriculture, currently underway in Harrisburg, the Farm Show is home to revenue-generating meetings, events and conferences throughout the year.
Organizations ranging from the Donald J. Trump for President Campaign to the Mid-Atlantic Rabbit & Cavy Shows have rented the Farm Show Complex in recent years (a cavy is “any of several short-tailed, rough-haired South American rodents,” according to Merriam-Webster).
Exactly how much money these organizations paid to use the space was not disclosed publicly until two weeks ago, when The Caucus inquired about contract payments between renters and the state Department of Agriculture, which oversees the Farm Show Complex. Those redactions prevented taxpayers from being able to see details of the transactions.
Department of Agriculture Press Secretary Shannon Powers told The Caucus the practice of Farm Show Complex staff was to redact prices on the amounts of all contracts and then upload them to the system. Following The Caucus’ inquiry, “agency legal counsel has instructed the Farm Show Complex staff to upload contracts in the future without redacting the contract amounts,” she said. As of Friday, the contract amounts for past rental agreements were still not posted on the Treasury’s website.
The newly disclosed information shows: — Donald J. Trump for President Inc. paid more than $31,000 to use the Farm Show for two rallies. At the first, in April 2016, then-candidate Trump spoke to about 6,000 supporters, according to LNP, the daily newspaper in Lancaster. The Trump campaign paid $13,043 to hold that event.
Trump returned to the Farm Show Complex in April 2017, on his 100th day in office. According to the Department of Agriculture, the Trump campaign paid $18,267.56 for the event.
The Department of Agriculture isn’t the only agency that’s wrongly hidden such financial information from the public. The Pennsylvania Higher Education Assistance Agency withheld details about how much it spent on trash-hauling, tree-trimming and window washing.
The agency reversed course after being contacted by The Caucus. It also launched a review of 1,500 contracts posted on the Treasury website, with a team of employees examining past redactions and determining if information was inappropriately withheld, the agency’s spokesman said.
The agency eventually reposted contacts — with the full price listed — for hundreds of contracts within a matter of days.
“It’s extremely difficult to imagine a scenario where the amount of the contract can be legally redacted,” Office of Open Records Director Erik Arneson said. The amount of a contract “is the most fundamental public portion of public records,” he said. “It’s for people to know what taxpayers’ money is being spent on.”
MAKING PA TRANSPARENT
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, the statewide trade association for news organizations, said the Treasury contracts database is based on the concept of proactive public access, a provision the association has long supported.
“The law recognizes that providing public access without the need for the formal mechanisms of the law increases transparency and accountability by removing barriers to access and the public resources used to address formal requests,” Melewsky said.
“Enforcement of this provision is worthwhile since compliance is truly key to attaining the goals and benefits of proactive public access,” she said. “If the public isn’t confident that the information provided is complete and accurate, it would discourage public use of the contract system, defeating its purpose.”
Enforcing compliance would benefit both the public and government agencies, she said. Posting more contracts online results in fewer Right-to-Know Law requests, freeing up public resources for other work, Melewsky and Mutchler agreed.
The state auditor general has authority to audit the Treasury system. Auditor General Eugene De-Pasquale’s spokesman said he had none planned but would take a look at it.
Connolly, Torsella’s communications director, said the treasurer is committed to transparency as an essential component of government.
“When someone gives a dollar over to their state government, they aren’t just giving us their money, they’re sacrificing every other thing they could do with that dollar,” Connolly said. “We should be treating that as something precious and delivering the information to citizens to enable them to hold us accountable.”
Connolly said Treasury is “open to a study on the issue of redactions in state contracts and levels of contract submission to the contracts database. Treasury is also open to the idea of requesting a summary to be submitted with each contract.”
He declined comment on legislation such as the bill proposed by Grove.
J.J. Abbott, a spokesman for Gov. Tom Wolf, said the governor would be open to Right-to-Know Law amendments, given Wolf’s commitment to other ethics reforms.