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Herkert supporters want information about Sunshine, Right to Know laws

October 7, 2008
By Heather Goodwin Henline, Sentinel managing editor, hhenline@lewistownsentinel

LEWISTOWN - Frustration grows amid lack of information about the future employment status of Mifflin County Regional Police Chief William Herkert.

Members of the community held a meeting Monday evening to support Herkert, who was placed on paid administrative leave by the Mifflin County Regional Police Department Board of Directors on Sept. 18. Nearly 50 community leaders and citizens gathered at Brooklyn Fire Co. Monday to discuss why the public is being kept in the dark by the board about an investigation into the chief's conduct and performance as head of the department.

Those in attendance said they wanted to know what they could do about it and what type of action they, as citizens, could take to exert their rights under state and federal law.

"Where there is no justice, there is no peace," said the evening's moderator, Bethel AME Pastor Bernard Carpenter. "We deserve some answers, and we are determined to get some."

Many of those who spoke at Monday's open forum also attended a special public meeting that was held by the board on Thursday at police headquarters in Yeagertown. They questioned the protocol used by the board to place Herkert on leave and to initiate an investigation in the first place. They also questioned whether the board followed Pennsylvania's Sunshine Act, a law requiring public agencies, such as the board, to hold certain meetings and hearings open to the public. A copy of the law is posted on The Sentinel's Web site, www.lewistownsentinel.com.

In addition, the Pennsylvania Newspaper Association offers a comprehensive list of resources about the Sunshine Act on its Web site, www.pa-newspaper.org, a link to which is posted on The Sentinel's site.

Teri Henning, general counsel for PNA, wrote in an editorial that she often is asked about the state's open meetings law, or the Sunshine Act.

"The real problem with the act - and this probably won't surprise anyone - is that public officials ignore it," Henning wrote. "The purpose of the Sunshine Act is to allow the public to witness agency decisions and, with limited exceptions, the discussions leading up to those decisions."

She wrote that some agencies routinely conduct the public's business in private. They hold "informational sessions" and claim that because they are not making any decisions, they can conduct them in private. They bring in outside consultants to talk about school or government policy, but claim that because they are "gathering information" or conducting a "question and answer session" with the consultant, and not discussing the matter among themselves, they can hold the meeting behind closed doors. They pass out secret "board packets," and then vote on items without identifying or describing them to the public in attendance. They engage in "serial" phone calls or group e-mails, or take "phone polls" on issues.

Some attending Monday's meeting said they wanted to learn more about the state's Sunshine Act and how it applied to the board. They asked for education and clarification on the law in preparation for the board's next special meeting, which - for now- is slated for 5:30 p.m. Thursday at police headquarters.

It is anticipated that the board will discuss Herkert's status and could vote on the future of his employment at that time.

In addition, other forum attendees wanted to know how to access public documents and to request supporting records in regard to the board's investigation into Herkert.

The Right to Know Law is Pennsylvania's legislation that guarantees citizens' rights to access and obtain copies of public records held by government agencies. A copy of that law is available on The Sentinel's and PNA's Web sites.

Don Chapman Jr., one of three individuals who is slated to represent Monday's group at this Thursday's meeting, said he respects the difficult job the board is trying to do. However, he questioned how the board members could have engaged in this investigation or initiated a paid leave without a solicitor present. He said the public's questioning about state and federal laws makes it all the more apparent why a solicitor is needed whenever a public body votes or takes action on any matter.

"I do not believe this meeting Thursday should happen without an attorney present," Chapman said. "People's rights have been violated."

For more information and additional resources about public meetings and accessing public documents, log onto The Sentinel's Web site.

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Article Photos

Sentinel photo by BRADLEY KREITZER
The Rev. Bernard Carpenter delivers opening remarks at the start of the town hall meeting Monday in Lewistown.

 
 
 
 

Fact Box

Isn't there a new Right to Know Law in Pennsylvania?

Yes. On February 14, 2008, Governor Rendell signed Act 3 of 2008 into law, which is a complete overhaul of the Right to Know Law. Although some provisions take effect immediately (those establishing an Open Records Office) and others take effect on July 1, 2008 (requiring state-related institutions to make certain financial information public and requiring the on-line posting of state contract information), the bulk of the new law takes effect on January 1, 2009.

The new law fundamentally changes the structure of Pennsylvanias Right to Know Law. It begins with the presumption that state and local agency records are open for public inspection and copying and places the burden on a government agency denying access.

For the first time since the Right to Know Law was passed in 1957, it will include the General Assembly and will give citizens the ability to appeal open records disputes to an administrative agency, the Office of Open Records, without the need to file a court action.

The new law guarantees access to public records in the possession of government contractors performing governmental functions on behalf of an agency, establishes an online, searchable database for state contract information, and requires state-affiliated universities to make certain financial information public.

The law also shortens agency response times and increases the civil penalties that can be awarded against an agency acting in bad faith.

What records are exempt from access?

Privileged records. Under the new law, records that are protected by a privilege, such as the attorney-client privilege or the doctor-patient privilege are not public.

Records that are expressly made non-public by another law. Records that are non-public under some other law (e.g., federal law makes student educational records non-public) are not public. Of course, the reverse is also true. If another statute makes a record public, then that record is public, and the Right to Know Law does not change that. For example, the Criminal History Record Information Act (CHRIA) expressly states that police blotters are public records. The Right to Know Law does not change this. Likewise, the law does not affect access to criminal and civil court records or voter registration records.

Right to Know Law exemptions. Section 708 of the new law contains 30 categories of exemptions. As stated above, agencies may release these records in many circumstances.

With very limited exceptions, the exemptions do not apply to financial records or aggregated data. The exemptions include the following:

* Records that, if disclosed, would result in the loss of Federal or state funds;

* Records that, if disclosed, would result in physical harm to an individual or would harm an individuals personal security;

* Records that would jeopardize homeland security or public safety or preparedness;

* Records that, if disclosed, would endanger the safety or security of a building, public utility, infrastructure, or information storage system;

* Records that, if disclosed, would jeopardize computer security;

* Medical, psychological and related records that would disclose individually identifiable health information;

* Personal identification information, including social security numbers, personal financial information, drivers license numbers, and home telephone numbers;

* Home addresses of law enforcement personnel and judges;

* Certain personnel records relating to public employees, including applications of those not hired, academic transcripts, and information regarding discipline (except that final actions of an agency that result in demotion or discharge are public);

* Records relating to collective bargaining strategy or negotiations, except that final contracts and agreements and final awards and orders of arbitrators are public;

* Working drafts of bills, resolutions, and policies;

* Records reflecting internal, predecisional deliberations of agencies, including internal strategies. This exemption does not apply to records reflecting an agency decision, records requesting state funding/grant money, or results of public opinion surveys or polls. In addition, records presented to a quorum of an agency for public deliberation at a meeting subject to the Sunshine Act (e.g., board packets) are public records, with limited exceptions.

* Trade secrets and confidential proprietary information.

* Notes and working papers used by a public official or employee solely for that individuals own personal use.

* Records that would disclose an agency donor, except under certain circumstances;

* Unpublished academic materials;

* Academic transcripts and examination materials;

* Criminal investigative records. This exemption does not apply to information contained in a police blotter or in a traffic report (except for in-depth accident investigations);

* Non-criminal investigative records. This exemption does not apply to fines levied by agencies, license revocations, settlement agreements, or similar agency actions;

* 911 records, except that time response logs are public, and agencies can disclose 911 recordings or transcripts if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure;

* DNA and RNA records;

* Autopsy reports, except that name, cause, and manner of death of a deceased individual are public;

* Draft minutes of an agency until the next meeting and minutes of an executive session;

* Real estate appraisals, environmental reviews, audits or evaluations relating to an agencys proposed lease, acquisition, or disposal of real property. The exemption no longer applies once the decision to lease, acquire or dispose of the property is made.

* Library circulation records and certain archived materials;

* Records identifying the location of an archeological site or an endangered or threatened plant or animal species if not already publicly known;

* Proposals relating to agency procurement or disposal of supplies, services or construction prior to the award of the contract or the opening and rejection of all bids. Financial information of a bidder or offeror;

* Communications between an agency and its insurance carrier, administrative service organization, or risk management office. This exemption does not apply to contracts between agencies and these entities or to financial records relating to the provision of insurance;

* Records identifying individuals who apply for or receive social services or disclosing the social services received by an individual.

* Correspondence between a person and a legislator that would identify a person requesting assistance or constituent services. This exemption does not apply to communications from lobbyists.

* Records identifying the name, home address, or date of birth of a child 17 years of age or younger.

 
 
 
 

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