Right to Know requests could come under fire if a bill gets through the PA General Assembly

October 27 – An amendment to the Right to Know law has passed the PA Senate and it will include a part on vexatious requesters.

State Senator Judy Ward, attorney Clint Barkdoll, Pat Ryan and Michele Jansen took a hard look at this bill this morning on First News.

First up, what the heck is a vexatious requester? 

Jansen said, “My criticism of it will continue to be the vagueness by which they define. I mean, what does the word vexatious mean to you? Could this be a way for certain entities to prevent or delay getting information out to the public, which is what the Right to Know law was about?”

Barkdoll said, “Vexatious is an interesting word legally because that’s a word that appears throughout rules of procedure and even statutes and it typically would mean if you’re doing something that’s just being filed to cause annoyance to someone and there can actually be remedies in the law for that. If someone is filing what are called vexatious lawsuits, if they’re being filed against you, you may be able to recover damages against the vexatious filer. It seems like the Senate is adopting the same theory in the context of Right to Know requests. That if a body believes that someone is filing these in a vexatious fashion, no legitimate reason, they’re just doing it to annoy the municipal or public body, they can be blackballed, essentially. They would be banned for a year from making any more Right to Know requests, but the problem with this is, who defines that in a Right to Know realm. Someone in a public office may think it’s vexatious, but the person may have a very legitimate reason for wanting to know this information, so I think it is a very slippery slope for the state government to go down. I’m still surprised that it passed the Senate as easily as it did. We still don’t know where it’s going to go in the House. I think it could have a real chilling effect on people that want to file these Right to Know requests and then I still think there’s this wildcard of could people, some people, that are frequent filers of these things, might they try to get the vexatious label because they would wear it as a badge of honor?”

Jansen said, “I think that’s an aspect we should talk to the legislators about. It’ll be Jesse Topper who happens to be the sponsor of the House version of this bill who will be with us on Friday. I really want to ask him if they even thought about that aspect of it, but here’s also something that bothered me. I really thank the person who directed my attention towards this. When you look at the memorandum that Senator Cris Dush put out about this, it starts out with numerous entities such as state agencies, municipalities and school boards – I’ll say that again, and school boards – frequently report that they are overwhelmed by burdensome Right to Know law requests. It says while most of these requests come from valid requesters, some of these have been identified to be vexatious intent and then they talk about money and time that’s then spent on that. But what really bothered me here is they said this is the legislative priority of the Pennsylvania School Board Association, the Pennsylvania State Association of Township Supervisors, the Pennsylvania Municipal League. These associations are non-elected officials that in my opinion are starting to wield way too much power. We see a lot of activism among these groups, especially the School Board Association. And this is their legislative priority? Why are we rushing to give them what they want when we see so much abuse lately of ideology being enforced on these different entities by these associations and they’re the ones that want this.”

Barkdoll pointed out, “Pretty much every municipal association in Pennsylvania is endorsing this bill. Not only the School Boards Association, but the Township Supervisors Association, the Boroughs Association, CCAP (the County Commissioners Association). They are all backing this and they’re using the argument that they’re spending a lot of resources, both in hours and time fulfilling these what they’re believing to be vexatious requests, but the other oddity about this law is the determination of whether it’s vexatious or not sounds like it goes to the Office of Open Records in Harrisburg and then the executive director there or someone that they designate, they are the ones that would determine, are these filings vexatious? And then they’re the ones that would issue the ruling on whether this person is banned for a year from making any more filings. This is I think maybe another loophole in this. I’d be curious to hear what our Reps say because let’s say you get put on the banned list, well, certainly you’re going to have a friend or an associate that you could give your Right to Know request to and then they could keep making the filing, essentially on your behalf. So it doesn’t seem like a very foolproof system if that’s what the intention to it was.”

Jansen said, “The value of that, the Right to Know, is to not allow entities to get away with hiding things. So they made this law when you do a Right to Know, you can get emails, you can get documents, I’ve used it at the county, I’ve used it at the borough, I’ve used it at the LIU. We know some that just do it, though, to be troublesome. And it also does cost money, which I think it’s fine for that money to be spent if it’s legitimate. For private citizens, my concern reading over the bill, I feel like the criteria for filing a vexatious requester look at something it’s too vague. I feel like anyone could say anyone’s a vexatious requester because it’s left to the individual getting the request to decide whether it’s too many or too broad of a scope. I know there’s a process then you go through, but it seems like then the process just slows everything down and may delay somebody getting a Right to Know even if it’s legitimate. I worry this could be abused by those who are trying to keep information from getting to the public.”

Ward said, “There’s a saying that says sunshine is the best disinfectant and I have believed that to be true. I’ve always been supportive of the Right to Know law. I certainly believe that it is very, very important, but as legislators, we hear on a regular basis from township supervisors, municipalities, counties, school superintendents about the abuse of Right to Know requests and what this piece of legislation that you’re speaking of it would allow an agency to petition the Office of Open Records if they feel that the requester is being vexatious and asking many, many numbers of requests. Requests filed for more information when they don’t have the first information. Copious amounts of paperwork that little townships have to do to satisfy these requests and if you have the same requester and they have explained it to me that often times there’s a township supervisor who loses a race and he just decides he’s going to clog that township up with Right to Know requests. Well think about some of these small boroughs and townships. They have one person working in the office, maybe not even full time and they are responsible for putting together this information over and over and over and copious amounts of information. So what this does is allow that agency to petition the Office of Open Records if they feel that it is unwarranted and it’s vexatious. So the executive director of the Office of Open Records or their designee will determine if further proceedings are warranted and the executive director has to pursue a resolution to this through mediation or a hearing. And quite honestly, the job of the Office of Open Records is to make sure that the Right to Know law is enforced and that people get the information that they need and so often they actually do side with the petitioner, but if the outcome is in favor of the agency, the agency would not have to comply with those requests from that requester for no more than a year. And then if you don’t agree with that, it can be appealed in commonwealth court. I feel like there is a process there that is reasonable.”

Ryan said, “I’ve got to ask you here to walk away from this. And I’ll make my case why to walk away from this. Why this is bad. So every municipality won’t want to do the work. They already have a pressure valve. The pressure valve is you get 30 days in which to put things together. It’s not like they’re being nailed every, single day with this amount of paperwork. You can ask for a little bit more time. Hell, they do it in the borough. We’ve already been at the receiving end of that before. But leaving this to bureaucrats on a Harrisburg level and then who’s in that office?”

Jansen pointed out, “It’s a governor appointed position.”

Ryan continued, “So great. I’ve got a governor appointed position here and we all know how Tom Wolf thinks of the folks on the right hand side of the aisle. What am I going to slow things down when I want to get an answer out of the borough if I go to the borough manager and I want to see an email trail between the borough council president and the borough manager? They don’t like my request. That thing gets passed off and gets passed off and gets passed off and I’m looking at a year here? I don’t think this is a good idea at all please.”

Ward said, “I think you’re thinking about it too much because this isn’t for someone who asks for a reasonable Right to Know request.”

Pat asked, “But, Judy, what’s reasonable?”

Ward said, “That’s for the Office of Open Records to determine. The agency has to prove to the Office of Open Records that it’s vexatious. That it’s unreasonable.”

Jansen said, “To me it’s very subjective, though, and we do know the MO right now of people on the far left, I don’t see any reasonable person standard being applied. We just had a (former) borough council president accused of something that when you looked at the data there was no reasonable reason for them to accuse him of committing a racial discrimination. So I just don’t see that reasonable standard being applied lately and I worry when it’s the expertocracy we’re talking about. When we’re talking about these bureaus and agencies, we see a lot of abuse of the so-called reasonable standard lately. I just feel like this is a very dangerous time to hand a tool like this to those and again, I’m agreeing with you, there are these people that would abuse the system. This just feels like the wrong way to go about trying to fix that. Because I think even if it’s just the process of slowing things down. Even if they know they’re going to lose, like, oh, it’s not really vexatious, but if we put it through this process, that’s going to slow it down some more. I just feel like there’s so much potential for abuse of it.”

Ryan added, “Why don’t we tighten this thing down a little bit more? I see what you’re trying to get at here, but remember after Jerry Sandusky then we’re going to shut everything down and everybody’s got to go through checks and all the rest of this stuff here and that became a real problem for guys and gals that are in Rotary that want to go read to kids and they had to go through all these checks. It was overreach. Then we have to redo it because we didn’t get it right the first time. I got the whole Sandusky thing. I understand that you want to make sure that you vetted out people before they read to kids, then it turned into a nightmare for service organizations. What I’m asking you for is before this thing gets rammed through here, can we tighten this thing down a little bit?”

Jansen said, “It went through the Senate and they voted for it. Couldn’t somebody even do this on purpose now and get a vexation requester label and wear it as a badge of honor and try to use it for political purposes? I just wonder if all this stuff was thought about and then maybe could we bring this up now that it’s going to the House and going through some committees there. Have some more conversation to see if there’s a way we could tighten this down and make it less vague.”

Ward said, “Sure and the House may decide to do hearings on it. That’s why we have the process we do. The committee chair may decide to do a hearing on it and that’s what the process is about. Bringing out all these issues before you have the vote on it. They may have an amendment. They may decide not to run it. There’s all sorts of things that can happen.”

Jansen asked, “How much debate did happen on this particular bill. Was there a significant amount of debate?”

Ward confirmed, “There was some debate in caucus, but I think everybody has heard the same thing that small little boroughs are being bogged down by people who just want to bog the system down.”

Jansen said, “Then it’s good. See? Now this is the good thing about it. It’s come out and there’s some of us with a different point of view who want to get that point of view heard. And that’s great.”

Ryan said, “To the other side here, small little boroughs and small little school districts have been running on autopilot for a very long time. You look at Quincy Township or you look at the Chambersburg School District and all of a sudden, oh, some people are asking questions and some people are getting uncomfortable. Perhaps, maybe we need some people that can move paper a little bit faster here.”

Ward asked, “How would you feel if they had to hire two or three additional people to keep up with the Right to Know requests?”

Ryan said, “I think there’s already plenty of money and I think there’s plenty of waste and I see some of the activity that’s happening on a borough level. I see enough waste happening out there that maybe we get a little bit more efficient because that’s what we can do in small business. There’s efficiency. I’m stripped down running my business here. I’m certain there are plenty of people that are not rising to the level of their role here. You know what we do in business is we reposition people to fill gaps there. Oh, you’re not being challenged enough? You don’t have enough time? Let’s retrain you and retool you to do other things here. Why don’t we treat it like a small business? How about that? Instead of hiring more people, why don’t we work with the money we’ve got here?”

Jansen said, “I think the money is well-spent if it brings transparency where transparency is needed. I agree we don’t want it wasted by people who don’t have a real purpose. I think there’s a better way we could go about that, but honestly, spend the money. If it means bringing Quincy Township to light, which should have been brought to light 15 years ago or 10 years ago, however long they’ve been struggling with somebody who was corrupt, I think it’s well worth that money spent.”