The Right-to-‘No’ law

 

The Pennsylvania Board of Probation and Parole recently  refused a Right-to-Know request for denied-parole documentation for Joy O’Shea Woomer. The case offers an example of the latitude some government agencies have on Right-to-Know requests. Woomer  has served almost 10 years of a seven-to-20-year prison sentence. The board concluded that matters concerning a potential parolee are “private, confidential and privileged.”

 

 

By Patrick Burns

Nothing acclaims our country’s appreciation for freedom more than our recent Memorial Day observation, which exemplifies the dedication and breadth and width by which our military heroes’ have gone to preserve our free society.

But what exactly makes a society truly free?

Chadwick Schnee, a Warwick attorney, would argue that a transparent government is the essential linchpin necessary to maintain true sovereignty.

The former assistant chief counsel of the Pennsylvania Office of Open Records in April released  “The Right-To-Know Law, A Practice Guide,” published by PBI Press.

While RTK is a powerful tool, it is an area of law with no judicial guidance, he noted recently.

In fact, there are really no clear regulations on it and very little practical guidance available on how to use it, he said.

“This book was my way of trying to help attorneys, members of the public and media, in trying to learn a little bit more about how citizens can access public records,” Schnee said.

Historically, there’s always been an interest in public records going back to the Declaration of Independence.

“One of the redresses of the king were that he was storing records remotely in locations away from the legislative body that the public could not access” he said. “An informed citizenry is really important to a functioning democracy.”

Since the establishment of the state law, legislators opened a state office in Harrisburg and eventually in each municipality – each borough, township and city – has a designated open records officer that is responsible for handling requests for public records.

There are very quick timelines for responding to these requests, but there are 30 different reasons for denying access within the statute in the RTKL.

“On one hand, it’s made access to public records easier,” Schnee said. “On another hand, judges sometimes have called it the Right-to-NO law. N-O as opposed to K-N-O-W.”

Prior to 1957, Pennsylvania courts recognized a common-law right to access public records – that is a presumption the public has the right to inspect public records in a “reasonable manner.” However, this was not consistently applied.

The Right-to-Know Act, enacted in 1957, was amended in 1971 which featured a long, yet limited definition of “Public Records.”

Gov. Ed Rendell signed Act 3 of the RTK law on Feb. 14, 2008. That move also created the Pennsylvania Office of Records

Schnee said his book is kind of a “balancing act” that provides a general overview of the RTK law but also some very specific information.

“It was a balance of trying to provide detailed information for attorneys living this day to day and can access different cases and legal arguments out there versus members of the public who are just reading this to understand what’s really going on with their government,” he said.

While the RTKL is designed to be easy to use, there are “pitfalls within the statute” from various decisions that have resulted in legal interpretations of it, Schnee said.

Perhaps the most glaring issue with the law are the dozens of enumerated reasons the government has for denying records.

“All of those reasons for denying that access are optional,” he said.

Any government agency can deny access based on items such as the personal security exemption or exemptions for non-criminal investigative records. However, there’s no explicit rule that denies access to specific documents.

“The Right-to-Know Law is not a confidentiality statute,” he said.

Prime examples of the latitude some government agencies have on RTKL is evident in how it corresponds to the Pennsylvania Board of Probation and Parole, state universities, and more recently, the protection of individuals’ information for those involved in the newly created Pennsylvania marijuana industry.

For example, the Board of Probation and Parole rejected a RTK request for information on why the board denied parole for nurse Joy O’Shea Woomer in July 2017. Related editorial on Joy O’Shea     Woomer, jailed since 2008, was convicted in a very unusual murder case where a jury found her guilty of killing an 11-year-old, East Hempfield cerebral palsy patient, whom she’d barely known.

Defended by Manheim Township GOP chair Chris Patterson, the church music leader, who was filling in for the first time as a visiting, overnight nurse, was arrested six years following Brent Weaver’s death.

His death, discovered the following morning of Woomer’s nursing visit Sept. 27, 2002, was changed to homicide after an autopsy of the exhumed body found unprescribed morphine in his system several months later.

Lancaster County Judge David Ashworth imposed a 7-to-20-year prison sentence to Woomer, who has maintained her innocence.  Woomer, 58, who has served 9 years in prison, was refused parole from the State Correctional Institution at Muncy last summer.

In a response to my RTK request for documents that lead parole officials to deny parole, the Board of Probation and Parole said such records are not public and matters concerning a potential parolee are “private, confidential and privileged.”

Still, such records are often made public in other states such as Maryland.

“Certainly, an argument can be made that it would be in the public’s interest to have information regarding parole made public to further public safety,” Schnee said. “On the other hand, having parole information public may discourage potential parolees from being open and honest in making their case to be paroled.”

Coincidentally, the first chief counsel of the Office of Open Records, Leo Dunn, is the current chairman of the Pennsylvania Board of Probation and Parole.

Schnee cited in issues with the newly minted regulation concerning medical marijuana permits implemented in May.

The Office of Open Records held that the names of individuals who were charged with reviewing permits under the medical marijuana act were subject to public access. However, perhaps in response, the agency quickly moved to implement a regulation that makes almost all of the information concerning the medical marijuana permit application process not subject to public access.

“There is a balance in both regulations between the need to ensure transparency in order to properly scrutinize the actions of government officials with the need to maintain confidentiality for certain kinds of sensitive information,” he said.

Schnee, who is the first assistant county solicitor for the County of Berks, engages in a wide variety of law, including labor and unemployment, elder law, the law surrounding bail forfeiture and much more.

As chief counsel of the PA Office of Open Records (OOR), he argued and briefed numerous matters concerning open records and government transparency and the Pennsylvania Supreme and Commonwealth courts. He also did the same in courts of common pleas.

Schnee has testified before the General Assembly and provided training and guidance regarding open laws; tracked and analyzed pending legislation affecting open records and regularly writes about open records matters – most recently in an article entitled “What Every Lawyer Needs to Know about the Right-to-Know Law” which appeared in the Pennsylvania bar association quarterly in July 2012.

RTKL is a “one-size-fits-all” statute applied to thousands of institutions across the state where each agency can handle things differently according to their needs, Schnee said.

Of course, there are also business opportunities for companies using RTKL to find potential customers. For instance, companies selling pool products have used the law to request to municipalities for a list of homeowners who’ve gotten permits to build a pool.

“In the past, the Office of Open records has seen request for lists of dog licenses so some pet supply company can market to those people as well,” Schnee said.

Schnee, who earned his law degree from the University of Pittsburgh School of Law, lives in Warwick with his wife Emily, and three children.

Patrick Burns is news editor of the Lititz Record Express. He welcomes your questions and comments and can be reached at pburns.eph@lnpnews.com or at 717-721-4455

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