Sunshine Week: 5 tips to win a Pa. open records fight and overcome secrecy in government

This story first appeared in the Investigator, a weekly newsletter by Spotlight PA featuring the best investigative and accountability journalism from across Pennsylvania. Sign up for free here.

HARRISBURG — You might find yourself in this situation:

You ask a public agency for a record — maybe an email between school board members or details of how a township is spending money.

Then the agency refuses. But you think the agency is wrong.

You have options.

Under Pennsylvania’s Right-to-Know Law, all records from a host of state and local agencies are presumed to be public unless a specific exemption applies.

So if you request a record under that law and the agency denies it, you might win access by appealing to the state’s Office of Open Records. The office handles appeals involving the governor’s administration, school boards, city councils, and many other public agencies. (Some agencies, such as the state House and Senate, have their own appeals officers.)

Success isn’t guaranteed. But in honor of Sunshine Week — an annual celebration of access to public information and open government — here are five tips that can improve your odds and make the process easier to navigate.

Nearly half of the appeals in 2021 were filed by “everyday citizens,” according to the office’s annual report.

“Don’t be intimidated by fancy legal filings made by an agency,” Erik Arneson, a former executive director of the office, told Spotlight PA in an email. “The OOR was designed to work for non-attorneys who do not want to — or cannot afford to — hire an attorney.”

In 2021, people seeking records filed nearly 3,000 appeals with the state’s Office of Open Records. Some cases were withdrawn, dismissed for technical reasons, or processed in some other way. The office denied more than 700 appeals. But it granted or partially granted 557 appeals.

You don’t need an attorney, and there’s no fee to appeal.

You have 15 business days to appeal after a denial. Meeting that deadline is crucial. The burden is on agencies to prove why records shouldn’t be released, so getting your foot in the door allows the office to analyze the law and potentially rule in your favor — even if you don’t submit additional evidence or legal arguments.

The office’s online appeal form helps ensure people’s cases aren’t dismissed on technicalities.

If you and the agency both agree to mediation, it could give the agency a chance to clarify what’s available or you a chance to clarify what you’ll accept. If mediation fails, the appeals process continues normally.

“Anytime you can have a conversation with the agency and they’re open to it, I think that’s a good thing,” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which Spotlight PA is a member. “The Right-to-Know Law and the appeals process is not intended to be adversarial. It’s intended to facilitate access.”

The index, which is continually updated and totaled 138 pages earlier this month, describes the history of important Right-to-Know Law cases, the outcomes, and their significance for similar issues. Look for relevant cases you can cite.

After you file your appeal, the office is responsible for creating a schedule for the parties to submit evidence and legal arguments.

If you want to submit additional information and need more time, ask for an extension. That can be especially useful if you have other commitments or you want to respond to a new argument from an agency.

Separately, appeals officers might ask for more time to make a decision. Melewsky recommends agreeing if you can.

“When you have decisions that are rushed, it’s not always the best decision,” Melewsky told Spotlight PA. “You want to give the appeals officer the time and the information that she needs to make the decision that’s consistent with the law.”

WHILE YOU’RE HERE... If you learned something from this story, pay it forward and become a member of Spotlight PA so someone else can in the future at spotlightpa.org/donate. Spotlight PA is funded by foundations and readers like you who are committed to accountability journalism that gets results.