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Open records costly to pursue

HARRISBURG — Giving Pennsylvanians the widest possible access to the official records of its government agencies? Some would call it priceless.

But it may prove too expensive for most people.

Advocates for greater openness in government say pending legislation that would overhaul Pennsylvania's open records law should do more to stack the deck against government agencies that choose to fight such requests.

Specifically, they argue that agencies that lose open records lawsuits should have to pay the requester's legal fees, particularly because such lawsuits can cost tens of thousands of dollars to pursue and take years to resolve. With taxpayer dollars at their fingertips, government agencies are far better prepared to withstand an expensive court battle.

So far, legislators have rebuffed the idea.

"It's going to result in people not pursuing their rights under the law because they can't afford it and it will reward agencies that say, 'We'll just wait them out,"' said Craig Staudenmaier, a Harrisburg lawyer who is also general counsel for the Pennsylvania Freedom of Information Coalition.

For now, the bills say a court can force a government agency to pay a person's legal fees only if it finds that the agency "willfully or with wanton disregard" refused access to a public record, acted in bad faith or argued for an unreasonable interpretation of the law.

That language represents an improvement over current law because it gives judges more leeway to award attorneys' fees in open-records cases, said Erik Arneson, a spokesman for the bill's sponsor, Senate Majority Leader Dominic Pileggi, R-Delaware.

Awarding attorneys fees in all cases would unfairly punish a government agency that loses a court decision despite having a legitimate argument, Arneson said.

However, open government advocates point out that most state and federal civil rights laws dictate that a losing defendant must pay the legal costs of the plaintiff — a potential penalty that can speed a settlement. The point is, they say, a person should not have to pay legal costs to secure a right they already had.

Beverly Schenck has waged a $10,000, four-year battle against her Butler County municipality, Center Township, to see invoices submitted by the town solicitor. She is awaiting a Supreme Court decision after losing in county court and in a state appellate court.

Her lawyers' bills probably would have reached $25,000, she said, but for the money she saved putting to work her skills as a paralegal.

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