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Open-records proposal is better, but far from 'best-in-the-nation'

Lawmakers on the House State Government Committee have approved a revision to the state's open-records law, considered by many to be the worst in the nation. Last week, the committee passed a bill laden with amendments that is a good example of one step forward, and two — in this case, maybe five or six — steps backward.

Harrisburg officials still clearly prefer to operate behind closed doors and without bothersome inquiries from the public about how they are spending the public's money.

A good example of this preference is found in the legislative bonuses that have triggered an investigation by the state attorney general and key staffers testifying before a grand jury. Indictments are expected to follow, for Democratic leaders using taxpayer dollars to pay for purely political, re-election work. In late 2006, House Democrats paid $1.9 million in year-end bonuses, four times the amount paid in 2005, a non-election year. Bonus recipients were warned in a letter from House leadership not to discuss the bonuses with anyone.

Once the bonus scandal was made public, lawmakers moved to end them. But if they had not become public, clearly Harrisburg's party leaders would have continued the illegal practice.

To some legislative leaders, public access is viewed a threat and a nuisance to business as usual. And that is why the latest proposed change to the state's weak open-records law must be viewed with great skepticism. It is an improvement, but it does not go nearly far enough.

The revised open-records proposal advanced by the House committee last week accomplishes one significant change. It flips the presumption, meaning that government records would be assumed to be public, unless officials could prove they should remain secret. The current law is the opposite, with all government documents presumed to be secret, unless it can be proven that they should be made public.

The backward steps include the fact that the bill advanced last week would apply only to records created after the law is enacted. No records that existed prior to the passage of the law would be presumed to be public. That would place an unnecessary shield covering pre-existing records, to thwart future revelations such as the legislative bonus scandal or the outrageous travel expenses and bonus payments at the Pennsylvania Higher Education Assistance Agency (PHEAA).

Another backward step found in last week's House committee effort is the exclusion of e-mails. In today's world, e-mail has replaced much traditional correspondence. And with an e-mail exemption, it would seem obvious that any state lawmaker wanting to shield activity from public scrutiny would opt for e-mail.

Tim Potts, co-founder of Democracy Rising Pennsylvania, compared the e-mail exemption to lawmakers in the 1960s passing an open-records law that exempted correspondence on paper.

In general, Potts called the House committee's efforts "a disaster" and said it should be scrapped.

Harrisburg lawmakers are not being asked to invent the wheel; they have a model to copy. Nebraska's open-records law is considered to be the best in the nation, according to Potts and others. Lawmakers in Harrisburg can simply start with the Nebraska law — and then try to make it better.

Potts also noted that the committee offered no details about penalties for violations of the new law. He worries that a minimal penalty will simply cause governmental agencies to budget for violations, with the expectation that that will be more convenient than full compliance. Penalties for violations have to be significant, otherwise the new law will be meaningless.

Given Harrisburg's often-revealed desire to keep the public in the dark about how tax dollars are spent and how laws are passed, passage of a model law, like Nebraska's, is not likely. Instead, to achieve serious reform in the open-records law and other legislative areas, voters across the state will need to send another shock wave from the voting booths — and remove another 50 or so entrenched incumbents in next year's elections.

There might be some lawmakers who want to do the right thing and create an open-records law that can be seen as best-in-the-nation, but those people are not in charge in Harrisburg. Reform-minded lawmakers are still in the minority and are still at risk of being intimidated by leadership wanting to preserve the status quo.

Despite the evidence of abuse of power and corruption in Harrisburg, the same mind-set prevails. Even after some long-entrenched leaders were replaced in the 2006 election, the culture of entitlement and preference for secrecy remains.

The step toward a new open-records law taken last week reveals a lack of sincerity on the part of lawmakers when it comes to transparency and accountability. Voters should watch carefully to see how the open-records effort proceeds.

So far, it doesn't look good.

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