How do you know what something says in order to determine whether its message qualifies for exemption under an Open Records law if you can't see it?
Gov. Tom Corbett seems to be saying: Because I say so.
At issue is a Right-To-Know request by an Associated Press reporter for Corbett emails and calendar entries. The governor's office turned over most of the material, but redacted, or blacked out, 17 emails and 28 calendar entries, citing exemptions to the state's 2008 Right-To-Know Law.
The Commonwealth Court had ordered the governor to turn over the redacted material to the state's Office of Open Records to determine after a private-review, whether the material was, indeed, exempt from the law. The governor's office has appealed and is demanding a full hearing on the matter with witness testimony, if necessary, to determine whether it must disclose the information to the agency.
Now, news organizations, like this newspaper, are traditionally suspicious of redacted documents, and this instance is no exception. So, you might expect us to challenge the governor's position.
We will accept that there are exceptions to the Right-To-Know Law, but we will not accept that the governor's office, nor any other state or local government entity can simply say to the agency charged with making those determinations, no, you can't see the material in question. It is exempt because we say it's exempt.
The Office of Open Records has offered a compromise of a private review, noting that a full hearing process would make it almost impossible to fulfill its legal mandate to turn around the material within 20 days.
The Commonwealth Court faces a decision in this case that goes beyond 17 emails and 28 calendar entries. Its decision here could set a precedent which could undermine the law.
As President Judge Dan Pellegrini suggested, such hearings would become commonplace and overwhelm the agency, noting that the office had adjudicated 6,000 requests since the law took effect four years ago.
It remains to be seen, if the court rules against the governor again, whether the matter will go before the state Supreme Court as a constitutional challenge to the law, for if the governor's office can refuse to submit documents for agency review, it seems to follow that all offices can refuse.
And that, we fear, would drive a stake in the heart of open government in Pennsylvania.