Pennsylvania Office of Open Records Sides with Lawmaker for Release of Real ID Study

The Office of Open Records has sided with the Berks County lawmaker who argued he was wrongfully denied under Pennsylvania's Right-to-Know Law.

by Nicole C. Brambila, Reading Eagle / December 29, 2017
Pennsylvania lawmakers are considering a bill detailing stricter insurance and reporting requirements for autonomous vehicles. David Kidd/Government Technology

(TNS) — The Office of Open Records has sided with the Berks County lawmaker who argued he was wrongfully denied under Pennsylvania's Right-to-Know Law a 2008 PennDOT study that examined the cost of implementing federal ID requirements.

State Rep. Mark M. Gillen requested the study on Oct. 5 after trying informally to get the report from the governor's office and state Transportation Secretary Leslie S. Richards. Gillen's request is identical to the one made by the Reading Eagle, which was denied, appealed and determined by the open records office as being a public record.

But PennDOT has never released the report.

Publicly, the agency has maintained the study contained predecisional information and was exempt from disclosure. But privately, PennDOT officials have said the report was outdated and no longer relevant.

In writing his decision, appeals officer Joshua T. Young noted that an Open Records review of the PennDOT report "found that the information contained in the study was not deliberative in nature because it contained factual data rather than opinions or recommendations."

That factual data includes a $141 million estimate - now widely considered inflated - that PennDOT told lawmakers Real ID would cost Pennsylvania taxpayers to implement. Lawmakers used the estimate, in part, to justify opting out of Real ID five years ago. Faced earlier this year with the threat that Pennsylvania residents could be grounded domestically without a passport or other federally accepted ID, the General Assembly hastily repealed that law in May.

With a federal deadline of Oct. 1, 2020, looming, PennDOT has been left scrambling to implement a federally acceptable ID in time. PennDOT expects to issue Real ID compliant cards in the spring of 2019.

The Dec. 26 Open Records determination means PennDOT has 30 days to release the report or file an appeal in Commonwealth Court.

Last time, PennDOT filed in court rather than release the report to the Eagle.

It's unclear whether PennDOT will challenge the Open Records decision.

Alexis Campbell, a PennDOT spokeswoman, said in an email, "PennDOT is reviewing the determination and weighing options as to next steps."

J.J. Abbott, a spokesman for Gov. Tom Wolf, did not respond to requests for comment.

Gillen, a Robeson Township Republican, has said the 2008 study was relevant for lawmakers who are grappling with the issue of implementing Real ID now. But even if that were not the case, Gillen said he also was concerned about a possible chilling effect on transparency.

"The essence of the Right-to-Know Law involves the prohibition of governmental secrets," Gillen said. "The law is intended to keep government officials accountable."

Gillen added: "PennDOT should spend less on lawyers and release the requested Real ID feasibility study and stay focused on its core mission of highways and bridges."

While it's unknown how frequently government officials resort to using Pennsylvania's Right-to-Know Law to obtain information necessary to carry out their duties, only 1 percent of the 2,102 appeals last year were made by government officials.

PennDOT was involved in the third most number of appeals in 2016, behind the Department of Corrections and State Police.

On appeal, the courts typically uphold Open Records' opinions.

"It's a serious allegation to say the Office of Open Records actually looked at a record and got the law wrong," said Melissa B. Melewsky, media law counsel for the Pennsylvania NewsMedia Association. "It's possible. But, I think it's not likely."

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