The Right to Know Law's black hole

  • Feb 22, 2012

Michael Berry, attorney, Levine Sullivan Koch & Schulz, LLP

When the criminal charges against Jerry Sandusky were announced, people scrambled to find out when Penn State officials had learned about the monstrous acts alleged and what they had done about them. The public quickly discovered this information could be hidden forever because the state’s flagship university is exempt from Pennsylvania’s Right to Know Law. Its records are completely outside the public’s reach.

Within days, the discussion of this glaring hole in our open records law spread across the state and made headlines around the country, from the pages of The New York Times to Anderson Cooper’s reports on CNN. State legislators rushed to introduce bills that would add Penn State and other state-related institutions to the law. 

This change cannot come soon enough. But, even if Penn State were bound by the Right to Know Law, the public likely would still not know anything more about the Sandusky scandal because there are even bigger holes in the law – its two exceptions for records of investigations.

The first investigation exception is supposed to serve the common-sense goal of not revealing ongoing criminal investigations. But the law sweeps far more broadly. It shields not only investigative records themselves – like notes taken by a detective and evidence collected by police – but also hides any document "relating to" or "resulting in" a criminal investigation. 
The second investigation exception protects records "relating to" noncriminal investigations.  Again, this exception’s scope far exceeds its laudable purpose. Not surprisingly, the law covers the identity of whistleblowers and auditors' work papers. But, it also seals all complaints submitted to agencies, demands that the "results" of investigations be kept secret, and ensures that “reports” of government investigations remain hidden.

As if this exception were not expansive enough already, the Commonwealth Court has stretched it even further, holding that the law extends not only to formal investigations, but also to routine government inspections and surveys. And, the court has ruled that both investigation exceptions prohibit the public from seeing information not only about active investigations, but also investigations that have been completed and are long over.

These two investigation exceptions are the black hole of our state’s Right to Know Law. And their ramifications reach well beyond the Penn State scandal. They suppress information of critical importance to the public.

Just take a look at how the Office of Open Records has applied these two exceptions:

  • An Erie woman was denied access to a notice of a housing code violation sent to her landlord about the place where she lived;
  • A Montgomery County man was denied access to the results of tests that determined that the water in wells in his area was contaminated; and
  • A lawyer for a middle school student was denied access to the school’s elevator inspection reports after the student was injured in a school elevator.

An appeals court has even held that police incident reports, which were routinely provided under the state’s old more restrictive law, are off limits under the new Right to Know Law. As a result, a Skippack man was denied access to an incident report describing how his 16-month old son died, while citizens throughout the state are unable to find out basic information about crimes committed in their communities.

Under these two exceptions, it makes no difference that the public paid for the investigation or if the investigation was looking into whether the public got fleeced by government employees. So, for example, the Office of Open Records ruled that an East Stroudsburg resident could not review a report on local officials selling school district property at a loss on eBay. And, the office barred a Philadelphia newspaper from seeing a report about a $7.5 million no-bid contract awarded by the Philadelphia School District. Ironically, that report, which was prepared by a private law firm at a cost to taxpayers of more than $200,000, also examined who had publicly leaked information about the contract in the first place.

In these and other cases, the investigation exceptions have been used to close the door to information that is central to citizens’ ability to hold their government accountable and protect the public welfare.

Adding Penn State to the list of agencies covered by the Right to Know Law is necessary. But real reform – and true transparency – will begin to take hold only when the General Assembly reins in the two investigation exceptions. Until then, those exceptions will remain the Right to Know Law’s black hole, ensuring that our government’s most egregious abuses stay out of sight.

Michael Berry is an attorney in the Philadelphia office of Levine Sullivan Koch & Schulz, LLP, where he represents news and entertainment clients in First Amendment matters.  He is also vice president of the Pennsylvania Freedom of Information Coalition.

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