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The last few weeks have seen new attention paid to an old tenet of the Nutter administration: government transparency and open access to public records.
The Philadelphia Inquirer’s Bob Warner kicked the conversation off this time with a piece describing a series of denials by the Nutter administration of public “Right To Know” requests made by the Inquirer regarding the recent Market Street building collapse.
The Inquirer’s editorial board weighed in not long after, calling on the administration to release various records and opining that stonewalling by the city’s law department was “making it difficult to trust” the mayor.
Last week, the administration responded by posting various documents online — but while maintaining at the same time that at least some of the records may still be exempt from disclosure under state law, and warning future records-seekers that:
“The City’s willingness to disclose these records should not be construed as a representation that any pending or future requests for information will be treated similarly, and the City expressly reserves all of its rights and defenses under the law with regard to any and all pending or future requests for information.”
It’s a statement that speaks to a larger question of what is, and what isn’t public — or, as the city might frame it, what is and what isn’t “exempt from disclosure” under state law.
The Nutter administration has, in fact, employed the proverbial fine-toothed comb to this question for years, subjecting even seemingly-mundane public records requests to by-the-letter scrutiny (see former City Paper reporter Holly Otterbein’s cover story, “Hall of Secrets,”)
Exactly how many records requests the city has received, granted, denied, appealed, etc. isn’t clear — AxisPhilly recently submitted a records request for those figures; the city invoked its right to a thirty-day extension to review the request.
But we can see at least a cross-sample of the requests that are appealed to the state’s Office of Open Records (OOR), which posts all appeals decisions online. What records are available show not just that Philadelphia (along with many other counties) routinely denies requests, but that those denials are often based on points of law that a layman might find baffling.
In this short series, “Request Denied!” we look at a few of the common — and more baffling — means by which seemingly straightforward records have been denied by the city’s law department — starting with ….
On February 21, 2013, University of California, Los Angeles law professor Joanna Schwartz submitted a request to the Philadelphia Police department asking for records relating to the amount of money being spent in police misconduct suits as part of a larger project she was working on, which involved similar records requests from various big cities.
Her request was passed on to the city’s Law department, which, as it almost always does, invoked its right to a 30-day extension before issuing her a partial granting and a partial denial of her request: while the city did provide some information related to judgments and settlements, it denied the part of her request seeking records related to the city’s policies around paying for police officers’ financial losses in lawsuits against them.
Schwartz’s request, the city claimed, amounted to “documents identifying decisions of the City of Philadelphia Law Department in its representation of the Philadelphia Police Department,” and that the city therefore didn’t have to provide the information, citing 65 P.S. § 67.708(b)(10)(i)(A) which exempts “internal … [and] predecisional deliberations of an agency,” as well as “any research, memos, or other documents.”
Schwartz appealed the response to the state’s Office of Open Records, arguing that that she was only requesting basic data: “The point is I wanted to know how much officers had paid, not how the city decided which officers should contribute,” Schwartz said during a phone interview.
In any appeal of an open records request, the agency whose records are being sought has the right to respond to the appeal. The city did so — but rather than arguing its original point against Schwartz’s claim, it simply raised a brand-new objection: that the records requested by Schwartz didn’t exist, because the city doesn’t track the metrics she sought.
This, in fact, turns out to be within the rules of open records requests: Pennsylvania’s Supreme Court recently ruled that an agency can raise new arguments for denying a RTK request at the first level of appeal.
The OOR, responding to this new matter, denied Schwartz’s records request.
Schwartz, who has dropped the request for now, says she did receive responsive information from 44 of the 70 jurisdictions of which she requested records.
Below is the initial response that Schwartz received from the city’s Law department.