A couple thousand times a year, a person formally requests that the City of Philadelphia provide them with a copy of a public document. It could be a city contract, an official’s email correspondence, or an environmental report.
The city could respond by just sending over the information. But even when the document is readily available, more often than not a city lawyer responds with an email that essentially says: Sorry, you’re going to have to wait at least a month.
That’s according to an analysis by the Reporters Committee for the Freedom of the Press, a Washington D.C. nonprofit that helps journalists with legal issues related to public records and newsgathering.
In hundreds of requests per year, even after a 30-day extension, the city still does not provide the document or an explanation for why it can’t satisfy the request, the analysis found.
The city has a practice of “habitualized delays” in releasing records that it is legally required to give to anybody who requests them, Paula Knudsen Burke, a Pennsylvania-based RCFP attorney, wrote last week in a letter to Mayor Jim Kenney.
“Members of the public should not be left in the dark, waiting for the city to respond to even the simplest of requests,” Knudsen Burke wrote.
The city’s Law Department took issue with the RCFP’s analysis, telling Billy Penn it doesn’t account for the huge number of often complex requests, those in the process of being fulfilled, and information being provided even when the request does not comply with the city’s open record policy.
Most requests are fulfilled within 30 days, department spokesperson Ava Schwemler maintained, and records are often released outside the formal request process.
The city is “passionate about transparency and public records,” as shown by staffers’ efforts to help people who submit non-compliant or vague requests or who need to be redirected to other agencies, Schwemler said. The city also rarely asks people to pay for copies of records, as it could under the law.
She acknowledged that delays do occur, for a number of reasons.
Schwemler cited the proliferation of vast email archives that must be reviewed for personal information before they are released, and requests that each ask for thousands of emails, which are “super demanding of resources.”
The city’s efforts are also slowed by pandemic-related staffing shortages and by deficiencies in state law that allow people to repeatedly submit requests for large numbers of records, she said.
A quarter of requests went unfulfilled
Pennsylvania’s Right to Know (or RTK) law requires cities and other government entities to provide records in a timely fashion, with certain exceptions, such as for confidential information or if the release would jeopardize an investigation or someone’s safety.
In December of last year, Knudsen Burke at the RCFP obtained a log of all records requests the city received in the first 11½ months of 2022. Of 1,950 listed requests, she analyzed the first 1,505 entries, which revealed “several troubling trends,” she wrote in her letter to Kenney.
- On 84 occasions, the city failed to provide the required initial timely response within 5 days.
- For 882 requests — 59% of them — the city invoked the 30-day extension allowed under state law.
- After invoking the extension, on 163 occasions (11%) the city still didn’t provide the information or a reason for denying the request within 30 days.
- At least another 209 entries in the sample Burke examined (14%), were beyond the 30-day extension and were listed as “pending” or with an unclear status.
- Overall, more than a quarter of the analyzed requests were apparently not fulfilled. Either the city didn’t respond within a 30-day extension, the status of the request was pending or unclear, or the person withdrew their request.
“Seemingly without regard for the complexity of the request, the City invoked a 30-day extension for 3 out of every 5 records requests, and exceeded that 30-day extension period nearly a quarter of the time,” Burke wrote.
RCFP also conducted its own test of the city’s Right to Know response last month, requesting the Law Department’s organizational chart.
A list of department staff is available on the city website, but rather than sending over the information, the city responded that it was “assert[ing] its right to an additional 30 calendar days to review the request.”
“The city’s invocation of the 30-day extension…is an indication of habitualized delays regardless of the simplicity of the requested information,” Burke wrote.
The law says an agency should “clearly define” the reason it needs an extension, according to RCFP, but instead the city gave four broad reasons. (Asked about this, department spokesperson Schwemler said RTK law does not prohibit the city from giving multiple reasons.)
Those given reasons were:
- That “the extent or nature of the request precludes a response within the required time period”
- That the city had “bona fide staffing limitations”
- The city had to do a legal review to see whether the requested info was subject to access under RTK
- That the city needed to check if any information needed to be redacted
It appears that the city routinely inserts those four reasons into its responses to RTK requests.
Billy Penn submitted a request on May 4 for a set of documents mentioned in a City Council bill. The city asserted a 30-day extension and cited those same four reasons, which had apparently been pasted into the email in a different font from the rest of the message.
More than 40 days after Billy Penn submitted the request, the city had yet to provide the documents or explain why it won’t release them.
10 new requests every business day
The new analysis echoes findings of previous studies. In 2018 a state legislative committee report found the city was among the entities with the highest rate of using 30-day extensions.
The city was also having city lawyers review every RTK request, rather than having department open records officers handle some requests. That likely boosted the city’s costs and slowed the process down, the committee report found.
Schwemler, of the Law Department, argued that a chart showing Philadelphia using the most 30-day extensions is misleading because it doesn’t take into account the relative volume and complexity of RTK requests at different agencies.
Philadelphia is much larger than other government entities in Pennsylvania, comprising more than 25 separate agencies, she said. Responding to RTK requests regularly requires coordination of multiple departments, offices, commissions and boards.
The Law Department also has a much heavier RTK-related workload than it used to, she said. Since 2018 the amount of litigation that starts with an RTK request has more than doubled, even as pandemic-related turnover and hiring freezes created a “tremendous strain on city resources.”
“It is becoming increasingly necessary for the Law Department to handle more and more requests citywide due to the complexity of the requests and increases in litigation,” Schwemler said.
The city receives an average of 10 new requests every business day, and often receives numerous complex requests from the same person in a single day, some of which require individual reviews of thousands of records, she said.
The RTK law went into effect in 2009, which Schwemler said pre-dates the widespread use of email to conduct city business. It does not consider the time and technological costs required to review thousands of emails, she said, and doesn’t do anything to prevent someone from, for example, making multiple requests for a year’s worth or a department’s worth of email.
In the letter to Kenney, the RCFP’s Knudsen Burke suggests the city should add more staffers, more oversight, or more funding to speed up its processing, “given the importance of providing citizens with a meaningful opportunity to timely inspect the records of government operations.”
The Law Department, meanwhile, says it’s the 14-year-old RTK law that needs attention. It is “outdated and in need of reform to maximize the efficiency of the response time,” Schwemler said. State legislators have several times proposed limiting burdensome requests, but none of the amendments have passed.
“The city shares many of the concerns expressed by RCFP,” Schwemler said, “and invites constructive conversation around how the law may be reformed to both provide relief to agencies that are fulfilling large quantities of requests and to reduce response time to requesters.”
