With advocates and lawmakers lining up against him, Gov. Tom Wolf is facing a test of his commitment to transparency.
The Pennsylvania state House voted unanimously to rebuke a current Wolf administration policy on Tuesday, when it passed a bill requiring state agencies to respond to Right to Know requests during emergencies.
“Transparency should never be delayed, and it should be emphasized during times of emergency disaster,” the bill’s sponsor, Rep. Seth Grove, R-York, said on the House floor Tuesday.
Pennsylvania’s Right to Know Law allows members of the public to request records from any government agency, from a school board to the Governor’s Office. Agencies usually have five days to respond to those requests.
But the Wolf administration has allowed executive branch agencies to seemingly indefinitely postpone processing the requests while state offices are closed for the pandemic.
Wolf, who said he opposes the House bill, defended that policy in a call with reporters on Tuesday.
He acknowledged that handling public record requests “has been put off, to a certain extent” during the crisis, and suggested that might be the case as long as Pennsylvania is weathering the pandemic.
“As soon as this emergency passes,” Wolf said, the processing of public records requests “will get back to the way it always has been.”
Wolf ordered state offices to close to the public on March 16, and for many state employees to work from home. Since then, not all state agencies have taken the same license in deferring Right to Know requests.
State Attorney General Josh Shapiro, Auditor General Eugene DePasquale and Treasurer Joe Torsella – independently elected officials who don’t answer to Wolf – have continued to process requests for public records, according to PA Post.
The state House has also continued to process requests.
But Wolf’s spokeswoman, Lyndsay Kensinger, pointed out Tuesday that the Legislature is not subject to the same terms as the Executive branch under the Right to Know Law. Legislative emails, for example, are largely shielded from public view.
“It’s disappointing that some members of the General Assembly seem to be only focused on grandstanding instead of collaborating to combat the pandemic in a meaningful way,” Kensinger said in an email explaining Wolf’s opposition to the House bill.
‘A good will gesture’
Wolf’s policy drew criticism last month when multiple media outlets, including the Capital-Star, filed public records requests for the list of the 42,000 companies that have reportedly sought waivers from Wolf’s March order closing non-essential businesses.
Though the Department of Community and Economic Development has processed those waivers and developed a reopening plan for the state, the agency said it can’t release information about which businesses did and did not receive waivers until state offices reopen.
State Office of Open Records Director Erik Arneson told the Capital-Star last month the justification was legally sound. The Right to Know law doesn’t require open record officers to process requests on days their offices are closed, including holidays.
But the bill the House passed Tuesday would ban a Governor from suspending open records deadlines during a disaster declaration.
It would also allow requesters to petition the Commonwealth Court if officials ignored their request in a time of crisis, and designate pandemic-related data and disease modeling projections as public records subject to the Right to Know Law.
The bill has the support of the state chapter of the American Civil Liberties Union, which argued, in a memo to lawmakers, that it “strikes the right balance between flexibility regarding operational challenges and the public’s right to oversee the work of its government.”
When it passed out of committee last week without any support from Democrats, it seemed the proposal would be another partisan wedge over Wolf’s coronavirus response.
But on Tuesday, all 93 House Democrats joined their Republican colleagues in supporting the legislation.
Democratic leaders told the Capital-Star that the bill has been amended to assuage their caucus’s concerns. Rep. Pam DeLissio, D-Philadelphia, said that she wanted to see protections if the administration used proprietary modeling data.
“Today’s vote was more of a good will gesture,” DeLissio said.
The legislation still has to be approved by the Senate. Wolf must decide to sign it, veto it, or allow it to lapse into law without his signature.
If Wolf does sign it, the clock would start ticking on all the Right to Know requests his administration has deferred to date.
A distinction without a difference?
Arneson told the Capital-Star in an email Tuesday that some backlog in public records requests is to be expected, since many state offices are adapting to new working arrangements and diverting resources to the COVID emergency.
He said officials should process record requests as soon as they’re able, since “transparency builds trust, especially in times of crisis.”
Speaking to the press Tuesday, Wolf claimed that his administration has operated transparently even as it’s faced limitations in processing open records requests.
“I draw a distinction between transparency and following certain rules … that we might not have the capacity to do during this pandemic,” Wolf said.
But press advocates said that open record laws are the bedrock of transparent government.
“The approach Pennsylvania is taking is absolutely backwards,” said Gunita Singh, legal fellow at Reporters Committee for Freedom of the Press, a nonprofit that provides legal services to journalists. “They are weakening the open records law in a time of crisis and anxiety, which is precisely the time we need to be strengthening these laws.”
A leading media law expert in Pennsylvania agreed.
“Transparency is a critical function of government, and the main facilitator of transparency is the Right to Know law,” Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, told the Capital-Star.
Pennsylvania isn’t alone in limiting access to public records during the pandemic.
The Reporters Committee for Freedom of the Press has found that dozens of state and local entities across the United States expect records requests to be delayed while employees are working remotely.
But the group has also found that some states have maintained, or even strengthened, public access to government records during the pandemic.
In Minnesota, for example, state officials have said that government agencies must still fulfill open records requests, and even encouraged them to waive fees for photocopying, Singh said.
With two dozen counties in Pennsylvania slated to start reopening businesses and public spaces this Friday, Melewsky said there’s some flexibility for agencies to revisit the public records policies they’ve been following for the past two months.
“This emergency may continue for an indefinite amount of time,” Melewsky said. “But government transparency can’t be put on hold indefinitely.”