PennDOT Considers Releasing Data on Real ID Costs

Under the state's Right-to-Know Law, records are presumed public in Pennsylvania.

by Nicole C. Brambila, Reading Eagle, Pa. / August 18, 2017

(TNS) -- After refusing for nearly six weeks to say whether a study on the taxpayer costs of implementing federal identification requirements that will affect domestic air travel will be made public, state transportation officials now say it could be released.

The change in the agency's stance came two days after the Reading Eagle emailed more than 100 state lawmakers asking about the study.

PennDOT is required to submit a Real ID cost study to the General Assembly by next Friday. It is the department's second such analysis in a decade.

Passed following the Sept. 11 terrorist attacks, Real ID establishes federal security standards for state driver's licenses and ID cards.

The first cost estimate was conducted in 2008, before the Legislature opted out of Real ID, in part, over the costs of the federal mandate. After PennDOT mounted a legal challenge to keep the 2008 feasibility study from being released following a directive from the Pennsylvania Office of Open Records that the agency do so, the Eagle asked officials if the current study would be made public.

The agency had been coy about whether it would publicly release the new report.

"Whether the report is shared after its submission is at the discretion of the department and Legislature, subject to applicable legal and policy considerations," Alexis Campbell, a PennDOT spokeswoman, said in a July 6 email to the Eagle.

Under the state's Right-to-Know Law, records are presumed public in Pennsylvania.

After the Eagle forwarded Campbell's email to 103 lawmakers on Aug. 14, asking how her response met the Right-to-Know Law's "presumption of openness" and whether they were comfortable with PennDOT's handling of public records, the agency tweaked its language in an apparent position change.

Responding to a separate question, Campbell wrote the Eagle in an Aug. 16 email: "Regarding the report due on August 25, since it will be submitted to the General Assembly, its public release is at their discretion. Generally, reports of this nature are made available to the public via the Legislature. The department has no issue with this report's release as it is (an) external document by nature of the legislation."

Right-to-Know experts and lawmakers the Eagle spoke to say PennDOT should release both reports on what has become a pressing public issue, as the Legislature looks to become Real ID compliant.

"Even if the exemption did apply, they could still give it to you," Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said of the 2008 report.

PennDOT maintains the earlier study is exempt from the Right-to-Know Law and has refused to release it even though the Office of Open records in May determined it was a public record.

State Rep. Jerry Knowles, a Schuylkill County Republican who also represents part of Berks County, called PennDOT's position disturbing.

"The bureaucrats don't run the show," Knowles said. "The elected officials do."

At least one lawmaker - state Rep. Mark M. Gillen - is pressing PennDOT to release the agency's earlier report.

"Not only should the 2008 study be released but any subsequent feasibility studies on this significant issue requiring contemporary public debate," the Robeson Township Republican said.

On Tuesday, Gillen sent a letter to PennDOT Secretary Leslie S. Richards asking she explain the agency's continued stonewalling.

Campbell, who said PennDOT is reviewing the letter, had no further comment.

"I think the aroma of this is foul, and it creates unnecessary suspicion," Gillen said.

Never released

Real ID has been a real headache for lawmakers.

For years, Pennsylvania enjoyed federal extensions giving the commonwealth time to comply with Real ID despite passing a misguided law in 2012 prohibiting participation.

Pennsylvania is one of about a dozen states that blocked participation by state statute. Without a Real ID, Pennsylvanians will be unable to fly domestically or enter federal facilities and military bases.

When the federal extensions abruptly ended last fall, lawmakers were left scrambling to hastily repeal the state's nonparticipation law. The new law - signed by the governor in May - also created a two-tiered system that allows Pennsylvanians to opt in or out of Real ID.

Because the enhanced driver's license is likely to cost more and the intent of the new law is not to have those with standard-issued licenses bear the cost of Real ID, lawmakers tasked PennDOT with identifying those extra compliance costs.

The last time PennDOT identified these costs was in 2008.

According to fiscal notes provided to lawmakers weighing the opt-out vote in 2012, PennDOT estimated taxpayers would pay - over nine years - $141 million in startup costs and $39 million annually in operational expenses.

Actual costs from comparable, participating Real ID states show much lower expenditures.

Although the Legislature relied on these figures when voting overwhelmingly to bar participation in Real ID five years ago, PennDOT apparently did not release its 2008 feasibility study to lawmakers either.

On June 23, in an earlier email thread, the Eagle contacted 99 state lawmakers, none of whom recalled seeing the 2008 PennDOT report.

"The (House) Appropriations Committee does not have a copy of this report," John O'Brien, communications director for the committee, said of PennDOT's 2008 study.

Although PennDOT was reluctant to say if the current cost study will be released when completed, O'Brien said the law Gov. Tom Wolf signed earlier this year requires a public report.

Legal challenge

In January, when Pennsylvanians first became aware of the implications of Real ID noncompliance, the Eagle requested under the state's Right-to-Know Law a copy of PennDOT's 2008 feasibility study examining the costs of implementing the federal law.

PennDOT denied the request, saying the 2008 study was predecisional and therefore exempt from disclosure.

The Eagle appealed the decision to the Pennsylvania Office of Open Records.

After conducting a review of the 2008 study, the Office of Open Records sided with the newspaper.

Noting that the state's public access law places the burden on agencies to demonstrate a record is exempt, Jill S. Wolfe, the appeals officer, wrote: "While the study may have been used to consider options regarding the implementation of REAL ID, the OOR has conducted an in-camera review of the study, and those deliberations are not contained within the study. Rather, the study contains the underlying factual bases (sic) for the deliberations, but not the deliberations themselves."

Wolfe further said PennDOT did not meet the burden of proof and instructed the agency to provide a copy of the study within 30 days.

Rather than do so, PennDOT filed a legal challenge.

On July 27, the Eagle withdrew from the lawsuit.

"After reviewing our case, we believed the legal battle with PennDOT would not result in a decision that would help others gain access to information," Editor Harry Deitz said. "We believe our resources are best used in cases that would have a broader impact."

The legal dispute, however, has left lawmakers scratching their heads and the governor's office compelled to defend the agency.

"Somebody tells me feasibility study, by my experience of the term, I would expect it to be open to the public," said state Rep. Dan Miller, an Allegheny County Democrat.

State Sen. Judy Schwank agreed.

"I am totally flummoxed by this," the Ruscombmanor Township Democrat said. "I don't understand why the information can't be made available."

Despite criticism of PennDOT's 2008 estimate, widely described as inflated, J.J. Abbott, the governor's spokesman, said Wolf remained confident in the agency's ability to get Real ID up and running.

"The cost study you're referencing was done in 2008 and two administrations ago," Abbott said in an email to the Eagle. "I can't speak to how they came to those estimates or the veracity of them at the time."

©2017 the Reading Eagle (Reading, Pa.) Distributed by Tribune Content Agency, LLC.