Records Dispute Greatly Exaggerated

Philadelphia Inquirer

The British statesman Benjamin Disraeli once noted “how much easier it is to be critical than to be correct.” Journalists at The Inquirer and other publications have been proving him right lately by accusing the Corbett administration of flouting the state’s Right-to-Know Law and even of “suing” an Associated Press reporter.

Contrary to recent reports, however, the governor has never declared his daily schedule off limits to public scrutiny. And his office is not suing the reporter, Mark Scolforo.

In fact, the administration has filed a very routine appeal of a decision by the state Office of Open Records, which triggered a Commonwealth Court review of the precise powers of the office. The case is titled “Office of the Governor v. Scolforo” because those were the names of the parties entered into the record when Scolforo himself filed an open-records appeal.

The substance of the case is this: Last year, Scolforo e-mailed a right-to-know request for “copies of Gov. Corbett’s schedule from inauguration day until the date this request is filled,” as well as “all e-mails sent by the governor since Jan. 18, 2011.” The administration complied, handing over copies of the governor’s schedule and all of his e-mails.

The dispute is over the administration’s redactions of some of the information in those records, including such things as former Gov. Dick Thornburgh’s phone number, Gov. Corbett’s personal appointments, and information related to the governor’s personal security.

The remaining issue is over one kind of redaction, involving the topics of certain meetings, the publication of which would have revealed negotiations or confidential discussions on possible administration policies or initiatives. If a company wants to open a plant in Pennsylvania, for example, we don’t want the details to become public until we have a chance to discuss it. That’s because publicity could scotch the deal or tip off competing states.

The state legislature understood this, which is why it exempted such details from premature disclosure when it wrote the Right-to-Know Law.

Scolforo filed an appeal of the redactions with the Office of Open Records — hence the original title of the case, “Scolforo v. Office of the Governor.” The Office of Open Records largely agreed with the administration on everything but the redaction of the topics of the meetings.

Does the topic of a given meeting reveal what is being discussed? We argue that it does. The Open Records Office says it does not. We asked the court to clarify. A panel of seven Commonwealth Court judges decided to kick the matter back to the records office, saying it should review the documents in private and then make a decision.

But because it acts as an advocate as well as a referee, we believe the Office of Open Records does not have the power to privately review confidential documents. So the governor’s office did what we imagine Scolforo would also have done if he had disagreed: We filed a motion for reargument before the full court.

But nobody is suing Scolforo. Rather, his name is on the appeal because he put it there in the first place.

The Corbett administration is committed to having this law clarified by the courts and, as we have done in 14,000 other instances, we will honor the law — even as others opt for being critical rather than correct.

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