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The pendulum has swung from some public agencies abusing Pennsylvania’s Right To Know Law, to some individuals abusing it.

Before February 14, 2008, a requester of information from a public agency had to prove the information they sought was a public record. Some public agencies were recognized as being uncooperative in releasing information.

Hoping to remedy that situation, Gov. Rendell took a 180 degree turn on Pennsylvania’s Right To Know Law (RTKL). Now, the burden is on the agency, to prove information sought is not a public record.

When the change took place, the public hailed it as a positive step toward transparency and it was, but the law anticipated those who sought information would be rational in their requests and not abuse the law with excessive onerous requests of information, or to use it as weapon.

What is a public record?

A record is defined by the Right to Know Law to be “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received, or retained pursuant to law or in connection with a transaction, business or activity of the agency.” A record can take many forms. A record can be a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.

Under the law, a record is considered public if it:

1. Is not protected by a privilege;

2. Is not exempt from disclosure under a different federal or state law, regulation, or judicial order; or

3. Is not exempt under one of the thirty exemptions of Section 708 of the RTKL.

 

In short, any agency record that does not fit into any of these three categories is considered a public record and is accessible under the law.

However, there are residents in communities throughout Pennsylvania that have realized the RTKL can be used for more than just promoting transparency and keeping a public agency honest.

It can be used to harass or overburden a public agency by having them expend time providing information requested, and run up costs in meeting or denying the multiple requests they submit.

There is little a public agency can do to prevent the onslaught of RTKs submitted by a vexatious requester. There is no limit to the amount of requests that can be submitted by an individual and the public agency need not be told why the information is sought.

While the Office of Open Records (OOR) states, “citizens should use good judgment in seeking records from the public body and not use this law to harass or overburden a public body from performing its job,” it provides no recourse when citizens do exactly that.

If a citizen wants copies of receipts for purchases of toilet paper for the last 7 years, someone at the agency, who has more important things to do in their regular job, has to be assigned the task and do a search for those records.

Some vexatious requesters have been identified through news stories that report the alleged abuse of the law, but other than informing the general public they have a serial requester in their midst, costing their communities tens of thousands of dollars in lost man-hours and legal fees, the public agency can do nothing to stop the abuse.

For some communities the result can be a budget shortfall and the loss of staff who are overwhelmed by the amount of RTK requests submitted by one individual. For others, it’s the need to hire additional staff to deal with the onslaught of RTK requests.

Vexatious requesters now have blogs and Facebook pages in which they gather. Not surprisingly, these “advocates of transparency” keep these pages closed to the public. Membership must be applied for and the potential member is “vetted” before being allowed to join.

Until the State Legislature amends the current RTKL, to address residents who abuse the law, communities throughout Pennsylvania will continue to pay the price for those with personal vendettas, seek retribution from failed elections, or retaliate for government decisions unfavorable to them.