This is Why I Consider Pennsylvania’s Public Record Law as the Worst in the Nation

The Freedom of Information Act (FOIA), passed by Congress and signed into law by President Lyndon Johnson in 1966, codified every citizen’s right to information from the federal government and is considered by some as a defining moment in U.S. history.

Freedom of information on the state level, however, predates FOIA by as much as 182 years. New Hampshire has had their public records laws on the books since 1784, three years before the constitutional convention. Massachusetts’ Public Records Act dates back to 1851. In contrast, Pennsylvania’s Right to Know Law is tied with South Dakota’s Sunshine Law as the newest public records law in the nation. Written as Act 3 of 2008, it was signed into law on February 14, 2008, and became effective on January 1, 2009.

Prior to the Right to Know Law, Pennsylvania had the Right to Know Act, which presumed that government records were not public unless the person requesting the document could prove otherwise. Indeed, there are still government employees in the Commonwealth that cling to the old law. I encounter them frequently at all levels of state and local government.

Just last month I requested access to court documents in Clearfield County that are clearly (if you’ll pardon the pun) public records. I was told through an email that had the signature “Clerk of Courts” in the footer that they “do not do personal inquiries.” When I called the court for clarification, the Deputy Prothonotary doubled down on that claim stating that they only do research for other government agencies. After informing her that she’s wrong on the law, she hung up on me. When I followed-up by email to the Prothonotary, Brian Spencer, and described the wholly-unprofessional, uncivil, insulting, and plainly-illegal behavior, he quickly offered his help in finding the documents I was requesting.

The Right to Know Law is a drastic improvement upon the old act. The sharpest distinction is found in Section 701(a), which states, “Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act.” In Section 102, it defines public records as “[i]nformation, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” In short, any information the government keeps is considered a public record and is subject to disclosure unless it is specifically exempted by the law.

Let’s talk about those exemptions.

For the most part, when I request access to a public document, I’m looking into documents regarding investigations into and prosecutions of violent crimes; typically murders, rapes, missing persons, etc. So, while I freely admit that getting access to records that show property lines, tax liens, property ownership, and the like is very easy—and I commend the governmental agencies that make it so—obtaining records relating to the investigation of a crime is much harder. And, that’s by design.

The Right to Know Law specifically exempts from public disclosure any “record of an agency relating to or resulting in a criminal investigation.” This includes complaints of criminal conduct, investigative materials, notes, correspondence, videos, and reports.

I’m not an expert on the public records laws of all the states in the Union, but I have made public records requests in many of them. In every state outside of Pennsylvania where I’ve made a public records request, the exemption from public disclosure of records of criminal investigations expires the moment the investigation is closed. While some dirty cops will keep investigations open that they know should be closed in order to hide their own misconduct (see Buffalo, NY’s case of the death of Amanda Lynn Wienckowski), most law enforcement employees refrain from such unethical behavior making it possible for the fourth estate to report on these crimes with all the information at its proverbial fingertips.

Not so in Pennsylvania.

Take the case of Ellen Rae Greenberg, the 27-year-old Philadelphia elementary school teacher whose death was ruled a suicide even though she was found with 10 of her 20 knife wounds in the back of her head and neck. In any other state, the records of the investigation of her death would be public because the Philadelphia Police Department considered the case closed once the medical examiner ruled her death a suicide.

In fact, the case files should already be public because suicide is not a crime in Pennsylvania or any other state. So, any investigation into a suicide is not a “record of an agency relating to or resulting in a criminal investigation.” It’s merely a record of an agency relating to a death investigation. The Philly PD, however, disagrees and will not release the records. In their response to my December 2021 RTKL request, they cited Section 708(b)(16) of the Right to Know Law, the part that exempts records of criminal investigations.

Another failure of the Right to Know Law is that its exemptions never expire. Many states’ public records laws fail in the same way. Minnesota, however, is an example that Pennsylvania and every other state should follow.

Minnesota’s public record law is called the Data Practices Act. It classifies all data under the act into one of five categories: General Rule, Private Data, Confidential Data, Nonpublic, and Protected Nonpublic. Each category has a rule that defines when data in that category becomes public. For example, under the General Rule category, data becomes public upon the creation or receipt of the data. Under the Nonpublic category, data becomes public either immediately with the consent of the data subject, or ten years after the creation or receipt of the data. The longest a record can be withheld from the public is 30 years, with limited exceptions such as medical records.

Why should Pennsylvania follow Minnesota’s lead?

First, we live in a technology age where anyone with an interest can become educated and experienced in investigating crimes. Were Pennsylvania to have a 30-year expiration date on all criminal investigation records, those with the disposition and interest could be hard at work solving the state’s oldest unsolved crimes such as the murders of Betsy Aardsma, Terry Bowers, and Morgan Peters, with the benefit of unfettered access to the law enforcement’s hard work.

After two years of navigating the ins and outs of the Right to Know Law, I’m convinced it’s the worst state public records law in the nation.

While there have been some notable amendments (such as the Doug Mastriano-led Senate Bill 492), the law needs an overhaul. Two changes would make the law stronger and better-serving of the public.

First, all criminal investigation files should be made public once the case is closed.

Second, exemptions to all non-public records should expire no later than 30 years after their creation or receipt.

Gavin Fish is a reporter for EYT Media Group and YouTuber based in Venango County. In addition to his YouTube Channel, he has contributed to investigations and reports for ABC News, Investigation Discovery, and Fox Nation, and has collaborated on projects developed for Netflix, Oxygen, Discovery Channel, Amazon Prime, and Hulu.