From The Editors: The $67 court fee we refuse to pay

On a grand scale, open records laws are relatively a new invention in the course of Western democracies.

Because America has a federal system, each state is governed by its own open records law, and the Freedom of Information Act applies to the federal government.

No open records law is perfect, and that is certainly true of Pennsylvania. But Pennsylvania’s law —the Right to Know Law, or RTK — includes one invention that puts it light years ahead of others.

When a citizen or journalist is denied a record in other states, the only recourse left to them is to file a lawsuit with the hopes that a judge will agree that the government failed to follow the law. This is costly both in terms of time and money. But what’s most important to take away from this is that the onus of suing is on the citizen.

That’s wrong.

Pennsylvania has turned this process on its head, to the benefit of the citizen.

When a citizen disagrees with the government, he or she may appeal to the Pennsylvania Office of Open Records. The OOR is a quasi-judicial agency that reviews the request, reviews the government’s response, and issues a legal judgment on the merits.

If, after this ruling, the citizen is disappointed, they may still elevate the matter to court on their own behalf, but at least they’ve had the chance for an outside body to review. We should add here that from the standpoint of this outlet, the OOR is incredibly successful in carrying out its mission, and we believe it does an extraordinary job of weighing the legal issues of each appeal.

If, on the other hand, the OOR ruling benefits the citizen, the government has one of two options: follow the ruling of the OOR, or elevate the matter to court. In this circumstance, the matter goes to court but the citizen did not have to dig into his or her wallet to get the process started.

And this is where we object to a recent fee put before us.

Broad + Liberty’s reporter, Todd Shepherd, filed an RTK with the Philadelphia District Attorney’s Office back in 2021. The appeal at the OOR was in his favor. The city decided to take the matter to court.

The case has been stalled for a variety of reasons, but recently Shepherd intended to file a Motion of Nonparticipation. This motion would keep the court case going, but would signal to the court that Shepherd did not intend to appear at any hearings related to the case. In other words, Shepherd was going to let the OOR’s final determination be his legal argument, and there was nothing left for him to do but let a judge decide if the OOR was correct.

The only way Shepherd could file this motion in Philadelphia court is to pay a $67 filing fee.

This is wrong.

Part of the General Assembly’s intent in creating the OOR was to give citizens a way to legally test the validity of a government’s response without having to dig into their own wallet to do so.

This case was not elevated at Shepherd’s choosing. The city made that decision.

If a government can herd or guide a citizen into a situation in which they will face death by a thousand cuts — or perhaps better to say death by a thousand fees — then the government will start to take that choice more and more over time.

The answer here is for fees to be waived in RTK matters in which the requester was not the appellant. Or, at the very least, a citizen should be able to file a motion for nonparticipation free of charge in matters they did not instigate.

Open records laws strike at the fundamental concept of government by the consent of the governed.

Consider this stirring preamble to the Texas Public Records Act:

“Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

Huzzah!

It would be impossible to catalog the infinite ways Pennsylvania’s Right to Know Law has done exactly what the Texas preamble says: Allowing the people to remain informed so that they retain control over their government.

Keeping this process as free of foolish fees as possible is part and parcel of keeping open records laws just that: open.