Open records appeals costly, time consuming, frustrating

Mar. 10—Darren Laustsen wanted to know whether his suburban Philadelphia school district was secretly removing books from its library system before it revised a policy to forbid the circulation of materials with "sexualized content."

Administrators at Pennridge School District, Laustsen said, didn't want to answer his questions in full.

The father of two turned to Pennsylvania's open records law to find answers himself. He filed at least seven formal requests, appealed a denial to the state's Office of Open Records and ultimately hired an attorney and filed suit in county court.

Laustsen won his case and got the records he sought. The judge's conclusion matched his own, that district officials manipulated library records to cover up that books by Black and LGBTQ+ authors were being pulled without formal review.

And, while the Right to Know Law aided his quest, Laustsen said the process it establishes is not only frustrating but also expensive.

"Every Right to Know request I filed it felt like the (school's) attorneys were finding legal loopholes in the exceptions of the law and misapplying them to my request. If you were to appeal it you had to go up against a $250-an-hour attorney and you're just not going to win," he said. "That's not how the law is supposed to work."

Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said money is a barrier when pursuing open records on court appeal. It's a barrier for private citizens and businesses beyond news media.

"When you have that lack of litigation it emboldens agencies to deny because they know they're not likely to face a challenge," she said.

Simon Campbell, a citizen activist from Bucks County, bemoans the Right to Know Law's lack of mandatory fiscal reward for attorney fees. He said he spent tens of thousands on legal fees litigating a records request against the Pennsylvania Interscholastic Athletic Association that ended Feb. 21 with a victory in the state Supreme Court.

PIAA challenged the constitutionality of its inclusion under the law since it's not directly funded with state or federal funds. The Supreme Court affirmed it is subject to the law.

"I won but what does this say to other citizens? 'Yeah, if you've got 5 figures to spend and (four) years to wait, file a Right to Know request,'" Campbell said.

Campbell was especially critical that Gov. Josh Shapiro didn't take over the lawsuit while he was serving as the state's attorney general. The state Commonwealth Attorneys Act says, "it shall be the duty of the Attorney General to uphold and defend the constitutionality of all statutes."

Both the governor's office and the Office of Attorney General declined requests for comment.

According to Melewsky, her organization has lobbied for the inclusion of mandatory reimbursement of attorney fees but as it stands, it's not provided under the law. She said it's very rare for a court appeal to end with a reward for legal fees.

"This gets to the core of the problem with (Pennsylvania's) Right to Know Law. When a citizen takes an agency to court and wins, the agency isn't required to pay legal fees," Melewsky said. "From a fairness perspective, if you truly want the best cases to (percolate) through the courts and discourage litigation, the mandatory fee reimbursement is a very effective tool for that."

This was Laustsen's first experience with the law. He said prior to this, he'd never filed an open records request. His case not only ended with a favorable ruling for records but also counts among the rare instances where legal fees were rewarded.

Bucks County Judge Jordan Yeager held that Pennridge acted in bad faith through intentionally manipulated and inaccurate records. As such, Yeager awarded attorney fees. Laustsen estimated the award at $35,000. That doesn't include what the district itself spent during the ordeal. The ruling was not appealed.

"They could have just answered the question, which I think is a question the public deserves an answer to," Laustsen said, returning to his original curiosity as to whether specific books and authors were being pulled from the district high school library. "They could have saved so much in legal fees and bad press. Just answer the question."