Tim Mahoney, a state representative in Pennsylvania, has drafted a top-to-bottom revision of the state's so-called Freedom of Information Act.
I interviewed Tim when I was working in Uniontown a few years back. I was suprised to find out that he's behind the new bill, which has attracted a lot of co-sponsors in Harrisburg. I didn't get the sunshine and accountability vibe from him, but then, I never asked. Maybe things have changed since I left Fayette County.
The draft proposal is a breath of fresh-air. It expands the definition of public records and specifically and painstakingly details multiple categories -- outlining exactly what should be available and what shouldn't. That helps, because from my own experience and estimation, a lot of FOIA litigation occurs because the laws don't clearly define what's public. I caution them on being too specific, however. There should be a presumption of openess and if they're not careful, the bill might tie the hands of the court in situations the legislature didn't anticipate.
The new draft also irradicates the rediculous and unconstitutional citizenship requirement in Pennsylvania's law (the Third Circuit struck down a similar provision in Deleware last year).
Clearly, this is like turning a halogen work lamp on in a dark room.
But, I have detected a few problems in this draft. It leads me to believe that it was written by attorneys with little to no experience in filing requests and using the law on a daily basis -- the kind of expereince that, say, a reporter would have.
Oral, anonymous and electronic requests
There are some areas that the new draft doesn't modify -- the oral requests section being one. As the language stands right now, it allows an agency to accept anonymous or oral requests for documents -- but doesn't require the agency to do so.
(b) Requests. Agencies may fulfi ll verbal requests for access to records and anonymous requests for access to records. In the event that the requester wishes to pursue the relief and remedies provided for in this act, the requester must initiate such relief with a written request.
This has a potentially chilling effect on less-informed citizens. If they come into an agency asking for a public record, they should be given the same access as someone who writes a request. Some agencies deny oral requests as a matter of policy. Ahem, State Police. The required acceptance of elctronic requests sent by fax and e-mail needs to be more explicit as well. Again, see the state police for agencies denying requests that aren't mail. Clearly, this section of the bill needs addressed.
The ombudsman
The creation of an administrative agency to handle FOIA appeals is necessary. I'm ecstatic to see its inclusion in this bill.
The Office of Access to Public Records is hereby established as an independent administrative agency. The Governor shall, subject to the advice and consent of the Senate, appoint an executive director of the office who shall hire such other staff as necessary to operate the office.But, Mahoney needs to look at other states to see how this is working. The ombudsman needs to be given some teeth. This office seems to have no enforcement authority of its decisions. The relief this office provides by allowing citizens to try disputes out of court (namely, saving their pocket books) will be nullified if they have to drag the agency in to court anyway.
Also, the bill requires an administrative appeal before court action can be filed.
(1) A party aggrieved by the decision of the Office may, within 30 days after formally being served notice of the Office’s ruling, appeal to the court having jurisdiction.
That's not acceptable. A citizen's right to petition the government for a redress of wrongs shouldn't be taken a way in this manner. Indiana, for example, only allows a plaintiff to seek attorney fees from an agency in court if they first sought an advisory opinion from the Public Access Counselor. You can still go to court any time you wish. Something similar should be employed here.
Also, I didn't catch this on my first read-through, but this language also allows the agency to initiate court action if it doesn't like the ombudsman's decision. It makes sense, being that the ombudsman's decision is binding. But, this will have a far-reaching, chilling effect. Who will seek an appeal at the administrative level if they might later be sued by the agency they were trying to get information from? Again, the bill provides a much-needed benefit to citizens by establishing this office, but then tears those benefits down by putting the public behind the eight-ball. This seems inconsistent with the stated public policy of the act.
The language needs to be changed to allow the public to file a binding appeal of an agency decision, or get a non-binding advisory opinion on an agency decision -- of which the government can't then sue for judicial review.
It doesn't stop there, though, the bill then hits us with filing fees.
(c) Fees. — (1) The office may impose a reasonable filing fee for an appeal made under section 11, and any fees collected under this subsection shall be deposited in a restricted account in the General Fund which is hereby established for the office. The money from this account shall be appropriated as necessary for the operation of the office. (2) The agency may waive the filing fee if the person requesting access to the public record is unable to afford the fee based on guidelines established by the office.
I don't like that, but I'm okay with this idea if 1) the fee is nominal (ie, much less than the filing fee for an action in civil court) 2) and the bill is modified to require, not simply allow, the ombudsman to waive the filling fee if it presents a financial hardship. The bill should also be modified to force the ombudsman to refund the filling fee if they fail to issue an advisory opinion or other required action within the 20 day time limit. That's often the case with agencies like this -- they become deluged with requests and have no incentive to comply with statutory timelines.
(d) Record on appeal. The record before a court shall consist of the request, the agency’s response, the record before the Offi ce of Access, including the hearing transcript, if any, and the Offi ce of Access decision. A court may take additional testimony and accept additional evidence as appropriate.
I'm conflicted about this, and unsure why it's included in this bill. The standard of review in court should be de novo, not limited to the administrative record. The language here makes the issue fuzzy. If the bill is not seeking to limit the court's review, then, the rules of evidence will apply and all those things will be allowed regardless of statutory requirements.
The federal FOIA limits court review to the administrative record, and it places an undue hardship on the public. To make a request, to negotiate access with the agency or file an appeal of an agency decision, the requester suddenly has to become a legal expert. Because if they miss raising some important legal issue in the appeal process, an attorney will be unable to raise it later in court.
Also, unless the administrative appeal is heard by the equivalent of an administrative law judge, well, I place little faith in their decisions. Ombudsman haven't always ruled correctly in other states, and their opinions have been frequently overturned by courts because they interpreted the law incorrectly. This language might place undue emphasis on the ombudsman's decision.
Fees
I understand the need to not state fees explicitly in a statute that might not be altered for years. Howver, fee waivers need to be addressed. They should be provided for those that can also get waivers from the ombudsman. The bill should allow for media waviers, as the federal FOIA does -- and it should also prohibit charging duplication fees for the first 100 pages to anyone. After all, our taxes pay those costs anyway. Why should we be charged again?
Also, I think that if an agency fails to respond within the statutory time-limit, they should be prohibited from charging any fees at all. That will be some incentive for speeding things up and complying with the law's provision.
On top of all that, we need to be explicit about what can be charged when the records are electronic. The Morgantown Parking Authority is trying to charge me $350 to export their ticket database. That's outrageous. There's clearly opportunity for agency abuse.
Overall though, if this bill is passed despite the problems I've mentioned above, everyone will be well served. But why go through the effort to fix the law, if you're not going to do it right? I hope someone listens.
A judge in Kansas blocked the publication of the article that I've reprinted below. It's about a public utility's tricky legal problems. I'm obviously not subject to that court order, so here it is. See what the power company doesn't want you to see.
Breaking News: BPU Could Face Thousands in Fines
A confidential report reveals the utility didn't follow federal pollution regulations when upgrading its plants.Justin Kendall
Published: March 1, 2007
The Board of Public Utilities in Kansas City, Kansas, may be liable for thousands of dollars in fines for failing to comply with anti-pollution regulations, according to a confidential document obtained by the Pitch.
The document was prepared November 16, 2004, by lawyer Stanley A. Reigel. It weighs the pros and cons of admitting to the Environmental Protection Agency that upgrades at BPU power plants did not comply with the federal Clean Air Act.
The report was hand-delivered to Marc Conklin, BPU general counsel and human resources director. The report is stamped “CONFIDENTIAL” and warns against duplication without Conklin’s approval. Conklin did not return a call from the Pitch.
BPU spokeswoman Susan Allen also declined to comment and instead sent an e-mail that read: “BPU cannot comment on a BPU confidential report. The Pitch should be aware that it possesses a confidential, legally protected document. The document should be returned to BPU.”
Mary Gonzales, president of the board of directors that oversees the utility, said Thursday that she was unaware of the report. Reigel did not immediately return a phone call on Friday to his office at the law firm of Stinson Morrison Hecker in Kansas City, Missouri.
When Reigel’s report was written, the EPA was auditing utility companies to see whether upgrades and repairs made after 1980 at coal-powered power plants followed federal guidelines. The letter indicates that the BPU was preparing to respond if audited by the EPA. However, it’s unclear what action, if any, the BPU took after Reigel delivered his letter.
Kim Olson, an EPA spokeswoman in Kansas City, tells the Pitch that the BPU has not contacted the agency to disclose its failure to seek repair permits and follow regulations when making upgrades.
According to Reigel’s letter, his report was spurred by a November 14, 2003, analysis of BPU’s coal-fired power plants by Burns & McDonnell Engineers. The engineering firm estimated that upgrades to the plants to make them comply with federal regulations would cost the utility nearly $160 million.
Reigel’s 15-page document identifies 73 repairs or upgrades that may not have followed EPA rules. The work was done at the utility’s three power plants: Nearman Creek Power Station, Quindaro Power Station and the now-closed Kaw Power Station. The work was completed between January 1980 and November 2004. Reigel determined that 15 of those repairs and upgrades were “questionable” and another 15 projects would be “probably not defensible” if the EPA conducted an audit.
Any one of those projects “puts BPU at risk” for an audit by the EPA, Reigel warned. Fines for utility companies in similar cases amounted to $1,000 for each megawatt of energy produced by the plant. Together, the Nearman and Quindaro plants produce 631 megawatts.
The audits Reigel refers to in his letter fall under an EPA initiative called New Source Review. The program was established by Congress in 1977 as part of the Clean Air act. It requires permits before construction on new power plants. It also calls for modifications at plants to be “as clean as possible,” according to the EPA’s Web site.
Reigel’s report indicates that the BPU did not get the permits “for any of the projects.”
“Thus, failure to conduct pre-project NSR and failure to monitor post-project emission constitutes a violation itself, unless the project is exempt, even if the project does not increase actual emissions above the allowable increment,” the report says.
Friday afternoon, the BPU threatened to file a temporary injunction against the Pitch and The Kansas City Star to keep the papers from publishing information about Reigel’s letter. Attorney R. Dennis Wright, also with Stinson, sent the Pitch a court motion for a temporary restraining order, which lacked a judge’s signature.
Here's the Kansas City Star version -- the judge also ordered it removed:
BPU document details possible clean-air violationsAt least 15 projects and upgrades at power plants operated by the Board of Public Utilities of Kansas City, Kan., may have violated federal clean air laws, according to a confidential BPU document.
The document, obtained from an anonymous source by The Kansas City Star, was prepared in 2004 by an attorney to lay out the odds for the BPU of the risks of penalties by the Environmental Protection Agency. It examined 73 projects that may not have followed regulations.
Of those, 15 were “probably not defensible” and another 15 were “questionable,” it said.
The document, which calls itself a “liability analysis,” says that the utility could be subject to thousands of dollars in fines. It also says the BPU has the choice of approaching the EPA to reach a settlement or waiting for the EPA to initiate action.
It is unclear which course the BPU took.
EPA and Kansas Department of Health and Environment officials said they did not know anything about possible violations. BPU officials could not be reached for comment Friday afternoon.
| Karen Dillon, kdillon@kcstar.com
Now, if anyone's got that memo, let me know: justin@fifteen-minutes.net.
I won a first place award in this year's Better Newspapers Contest this year. Here are the judge's comments: (pdf file, pg 9).
"In a category that can be predictable and dry, Justin McLaughlin's work sparkles. He gets right to the subject and moves along swiftly, focusing on subjects both big and small -- from high gasoline prices to challenging babysitting jobs. His turn of thought can be surprising and insightful. The light touch he brings to a very heavy subject - the impending death of his grandmother -- is inspiring. What a special writer."
:-D
A FOIA request to the attorney general's office for transcripts of depositions taken in Allen Ash's lawsuit against the state was passed off to attorneys in the Division of Corrections. This, even though the AG himself is the true and actual custodian by law, regardless of what physical office the records may lie in. That all wouldn't be bad, per se, except they're telling me I have to file another request. That, is, well, illegal.
My old employer, The Times West Virginian, shut-down its community forums after a post was made praising me several days after I left the paper. It's surely a shame, because there were people in the community actually using the forum. Sources inside the newsroom tell me it's generally believed I made the post about myself. All I can say is, naive.
AP (link coming). Oh jeeze. "BUCKHANNON, W.Va. (AP) - A letter written by Sago Mine survivor Randal McCloy Jr. says at least four air packs issued to the trapped miners did not work."
Slate, Romensko. "Never meet a sensitive source at a location where you must sign in or show an ID. How stupid are you? Try underground parking garages at night." Welcome to my world.
Boston.com, AP. "A man who spent five hours naked and stuck in the chimney of his stepmother's home was arrested on suspicion of being under the influence of drugs, police said." All I want to know is if there's an AP photo pursuing. Ha.