Transparency and Accountability: Upholding the Spirit of Pennsylvania’s Right to Know Law

Transparency Delayed is Transparency Denied

In an age where access to information is both a tool and a testament to democratic values, Pennsylvania’s Right to Know Law (RTKL) stands as a beacon of transparency and public engagement. Designed to ensure that the citizens of Pennsylvania can access public records, this law underscores the foundational belief that transparency fosters trust between the government and the people it serves.

However, recent observations and experiences have brought to light a concerning trend that threatens to undermine the very principles the Right to Know Law is meant to uphold. Specifically, the employment of the “maximum delay” tactic whereby routine, uncomplicated RTKL requests are nearly always automatically issued a 30-day extension on the 5th business day of the request by the Agency Open Records Officer (AORO). The evidence shows that is for nearly every request, regardless of its nature or complexity. This raises significant concerns.

Transparency delayed is transparency denied.

In the wake of the very unpopular midnight, hidden pay raise that the lead to a “cleaning of the legislature in Pennsylvania in 2005, after nearly a year’s worth of debate, the RTKL was passed unanimously in both the Pennsylvania House and the Pennsylvania Senate. See Few Pennsylvania lawmakers remain from infamous 2005 pay increases. The crux of the bill was that the public has the right to know. In the words of then Representative Mahoney as well as then Senators Mellow, Pileggi and many others, the purpose of the RTKL changes was to INCREASE the speed of disclose as the prior law allowed for a 10 day response time and the new RTKL was reduced to 5 days. In fact, multiple members of the legislature during committee debates and on the floors stated that the 30 day extension should be exceedingly rarely invoked.

According to the data, it can be argued that Dauphin County does not agree with this at all.

In fact, I have. I have filed a lawsuit against Dauphin County regarding a particular non-controversial, non-complex matter that was denied by operation of law because Dauphin County AORO did not respond within 5 days as the statute commands and then after the deadline replied with a 30 day extension with a blanket assertion that the entire of Dauphin County was understaffed to provide the records and also it required legal review. This is a perfect test case for review of the “maximum delay tactic.” You can read the lawsuit here: McShane v. Dauphin County 2024 CV 2580

[N..B., the lawsuit asks for damages in the form of the civil statutory damages as well as legal fees and costs. As has been my policy and past practice, any such award, if issued, will go to my firm and then dollar-for-dollar be donated to a charity. The charity I designate for these purposes is Carolyn’s House of Harrisburg, PA which is a 501(c)(3) non-profit that provides space for 24-hour hospice care to individuals who are unable to remain at the place they call home as they die. It is a wonderful place that is underfunded and provides a core community need to allow those who die to do so with dignity.]

To address this issue head-on and to bring full light to it, I delivered a statement to the Dauphin County Commissioners during their public meeting on April 10, 2024, outlining the legislative intent behind the Right to Know Law and highlighting the circumstances under which a 30-calendar day extension is legally permissible. The extension can only be enacted under very rare circumstances. It emphasizes that these extensions should not be the norm but an exception, reserved for instances that genuinely require additional time for compliance due to legitimate reasons such as off-site location of records, staffing limitations (the agency cannot purposefully staff itself to be short staffed), legal review necessities (due to complex or novel issues), the complexity of requests, or procedural non-compliance by the requester.

This speech, aimed at rallying for adherence to both the letter and spirit of the law, has been recorded and shared for public viewing. We invite you to watch the delivery of this important message on our YouTube channel, bringing to light the critical need for transparency and the proper application of the RTKL’s provisions.

[As a spoiler alert, the Commissioners said nothing.]

The goal of this address, and our broader effort, is not just to critique but to constructively engage with policymakers and the public alike, encouraging practices that enhance rapid transparency, accountability, and trust. As stewards of the public interest, it is incumbent upon our politicians and all involved public parties to ensure that the Right to Know Law serves its intended purpose, facilitating rather than hindering the public’s access to information and providing that access swiftly with no delay.

It is the public’s records.

Not state secrets.

I hope this speech sparks further dialogue and action towards more transparent governance practices in Dauphin County. Join us in advocating for a future where the Right to Know Law is upheld in both letter and spirit, ensuring that all citizens have timely and unencumbered access to the information that underpins our democracy.

Come back to this blog space next week for the next iteration of my addresses to the Dauphin County Board of Commissioners.

Here is the text of the speech.

—-#####—–

Gentlemen of the Board of Commissioners, good day.

I sit before you today as a “mere citizen” but a concerned citizen who prides himself on ensuring justice and transparency within our government.

My name is Justin James McShane. I live in Lower Paxton Township in the County of Dauphin.

 

Today, I wish to address an essential cornerstone of our democracy and legal framework: the Right to Know Law in Pennsylvania.

This law is not merely a statutory obligation but a profound commitment to rapid transparency, accountability, and the public’s right to access information. Its legislative intent is clear—to empower citizens by granting them quick access to public records, thereby fostering an environment of openness and trust between the government and the people it serves.

However, it has come to my attention that there appears to be a systemic issue with the application of the Dauphin County’s Agency Open Records Officer’s (AORO) policy, particularly concerning the routine issuance of 30-calendar day extensions for nearly every Right to Know request on the 5th day (or after that). This is a “maximum delay” tactic where under the color of law, Dauphin County seeks to delay the release of information.

As you know prior to January 10, 2024, it was the practice of the AORO to generally and with few exceptions routinely issue a 30-day extension letter on the 5^th day of the request. Such routine and habit were automatic to a degree and not at all in true consideration of the law or reality. A spreadsheet maintained by the AORO gives evidence of years of this practice. It is proof positive of this behavior. If you have not done a statistical analysis of it yet, I will… once it is released… that is if it is released as it sits now in day 4 of my Right to Know request with no response. I hold out hope that I will get the record without a 30-day extension. While hope springs eternal, the statistics are not in favor of my hopes.

The “maximum delay” practice was abolished beginning January 10, 2024, until March 22, 2024.

It appears now to be back in full effect.

This practice, while seemingly benign at first glance, deviates from both the spirit and the letter of the law.

As codified in the law, the AORO SHALL reply within 5 business days of the request.

In the wake of the very unpopular 2005 midnight, hidden pay raise that led to a “cleaning” of the legislature in Pennsylvania, and after nearly a year’s worth of debate, the RTKL was passed unanimously in both the Pennsylvania House and the Pennsylvania Senate. See the Patriot News article Few Pennsylvania lawmakers remain from infamous 2005 pay increases. The crux of the bill was that the public has the right to know. In the words of then Representative Mahoney as well as then Senators Mellow, Pileggi and many others, the purpose of the RTKL changes was to INCREASE the speed of disclose as the prior law allowed for a 10-day response time and the new RTKL was reduced to 5 days. In fact, multiple members of the legislature during committee debates and on the floors stated that the 30-day extension should be exceedingly rarely invoked.

A 30-calendar day extension is not a blanket provision to be applied indiscriminately or automatically. It is reserved for very specific circumstances of very limited scope and application. The only exceptions are for:

1. off-site location of records,
2. staffing limitations,
3. the need for legal review or redaction,
4. the complexity of the request, or
5. the failure of the requester to comply with necessary fees or agency policy.

It is a measure designed to ensure due diligence and thoroughness, not to hinder or delay the public’s access to information.

Let me be clear:

These are the public’s records.

They are not state secrets.

Transparency delayed is transparency denied.

The routine application of this extension, regardless of the request’s nature or the actual need for additional time, undermines the law’s purpose. It not only delays justice but erodes trust.

Again, transparency delayed is transparency denied.

All that is required is for two of you here, now and today, to order the AORO to stop this practice. Again, hope springs eternal in my heart.

As advocates for justice and champions of the public’s right to know, it is our collective responsibility to uphold the integrity of this law. Of this, I am sure you agree.

We must ensure that its provisions are not merely followed to the letter but embraced in spirit. The indiscriminate and unwarranted use of 30-day extensions not only contravenes the specific guidelines set forth by the legislature but also impedes the fundamental right of our citizens to timely access public information.

Therefore, I urge the Dauphin County Commissioners to review and address this policy with the AORO. The law is not optional. Who among us can disagree with that? It is imperative that we adhere to the law’s intended use of extensions, applying them only when truly justified and not as a matter of routine.

In doing so, you reaffirm your legal duty and moral duty of commitment to transparency, accountability, the law and the trust placed in you by the public that you serve.

I am hopeful for a response here, now and today on this video that you expressly reject the “maximum delay” tactic, and you will instruct the AORO to abandon this tactic. You may, as is your choice, say that no such tactic exists and it never existed or that if it existed it was without your knowledge or approval, but I remind you that the spreadsheet shows otherwise. You may, as is your choice, say nothing. I am however prepared for no comment and the people can draw whatever inferences they may from that silence.

You are each individually and collectively good human beings. There is a lot of goodness here even if you can’t see it in each other. But here, with this, you can do better.

Thank you for your attention to this matter, and I look forward to seeing the steps we will take together to ensure the Right to Know Law fulfills its noble purpose.

—-#####—–

 

 

Merely a citizen, I am

 

 

 

Justin James McShane, Esquire, F-AIC, F-AAFS

 

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