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PLN mentioned in article on restricting prisoners' access to public records in PA

City Paper, Dec. 19, 2013.
PLN mentioned in article on restricting prisoners' access to public records in PA - City Paper 2013

Lawmakers propose denying prisoners access to the state's open-records law

By Daniel Denvir

Published: 12/19/2013

Since Pennsylvania overhauled its Right to Know Law in 2008, Roger Buehl has typed out numerous requests, demanding that a state agency turn over information about everything from private medical contractors and MP3 players to the official definition of “inclement weather.” When his efforts are rebuffed, he has appealed to the state’s Office of Open Records for help and even filed a lawsuit.

But Buehl, a prisoner, serving a life term for a high-profile triple murder in Villanova in 1982, could find this important channel for information cut off. Four bills introduced by state lawmakers seek to limit or strip inmates of their rights under the law.

Rep. RoseMarie Swanger, a Republican from Lebanon County, has introduced the most severe, House Bill 115. It would allow state agencies to not release information requested by a prisoner. She was motivated by a county clerk in her district, who she says has been “bogged down” by requests from prisoners. “It’s ridiculous,” she says.

None of the bills have moved out of committee, but the effort has drawn support from leaders of both parties.

“There are other mechanisms to get the information they are entitled to besides filing right-to-know [requests],” writes Department of Corrections (DOC) spokesperson Susan McNaughton. “Sometimes it is just as simple as making a request of staff. A majority of the requests from inmates are for information regarding their own sentencing, upcoming prison menus and their own medical information.”

But Buehl says that prisoners need the open records law more than most.

“As a prisoner, I have no access to the Internet and the usual sources of information,” Buehl writes, apologizing that his handwriting — though still quite clear — has been rendered sloppier than usual by a prison-mandated rubber pen. “Additionally, the PA DOC restricts prisoners’ access to general information, and it rarely … voluntarily discloses corrections-related information to prisoners. Many Pa. DOC officials operate on a belief that prisoners are not entitled to honesty or truth from them.”

Of the 1,925 right-to-know requests received by the Department of Corrections in 2012, 79 percent were filed by inmates.

“There is no group of Pennsylvanians more dedicated to investigating corruption and waste in the prison system than those confined within its walls,” a spokesman for the Human Rights Coalition (HRC), a Pennsylvania prison reform group, said in testimony opposing restricting inmate access to the law.

Indeed, the HRC argues that rights under the law should be expanded, pointing to the case of one inmate serving an indefinite term in a highly restrictive Secure Threat Group Management Unit: The DOC has rejected a request for information governing the placing of prisoners in this unit, citing a security exemption.

When right-to-know requests are denied by state or local agencies, appeals can be filed with the Office of Open Records. Terry Mutchler, the office’s executive director, said about 31 percent of appeals to her office in 2012 were from prisoners.

Buehl claims numerous victories that were won under the current law. In one case, he says, a prison staffer had “repeatedly told prisoners” at State Corrections Institution-Mahanoy not to request tape players that were commonly permitted in other state prisons. Inmates were told not to be bothered because MP3 players would soon be made available.

In June 2012, Buehl filed a request seeking documents and contracts regarding the purchase of MP3 players. The DOC responded, in part, that no such records existed — apparently indicating to Buehl that officials had misled prisoners, and that MP3 players would not be showing up in prison commissaries anytime soon.

“Employees were actually trying to help the inmate and prevent him from spending his money on a tape player that would eventually be outdated, but they didn’t know how long it can take to implement something like this,” says the DOC’s McNaughton.

Buehl’s protracted efforts also include a request for information about contracts with a private health-care provider, which, he says, helped him (and others) secure treatment for hernias. In another instance, Buehl suspected that prison staff arbitrarily cited “inclement weather” as a pretext to cancel recreation time outside in the yard. So he requested “any DOC policy, procedure or guideline defining ‘inclement weather’ which may justify cancellation of institutional yard periods.”

The DOC denied that request, arguing that disclosing the definition of “inclement weather” could jeopardize prison security by helping inmates plan an escape. But a Commonwealth Court judge ruled in Buehl’s favor, finding the DOC’s escape-plan theory to be “speculative” and, in a 10-page decision, ordered the agency to “provide Buehl with access to the ‘inclement weather’ definition.”

Buehl says that it is difficult to say precisely which requests have caused change, since the DOC will not acknowledge that a particular “request (or complaint) ... [leads to] corrective, remedial action.”

Swanger referred City Paper to Lebanon County Chief Clerk Jamie Wolgemuth, who says he is inundated by requests from his inmate “pen pals.” He says that some prisoners were fishing for personal information related to public employees who played a role in their incarceration.

“Some of it, whether intended or not, is intimidating,” he says. “And the Right to Know Law doesn’t have enough protections built into it yet. It makes exceptions for judges and law enforcement — that their home addresses are not to be released — but that’s the extent of the protection. It does not extend to many public employees.”

Mutchler agrees that there is one “inmate, who has abused this law in his attempts to obtain personal information about law enforcement, the judiciary and the district attorney,” leading to a “high volume of inmate requests” in Swanger’s district.

But Mutchler opposes Swanger’s bill. She does support Senate Bill 444, introduced by Republican Senate Majority Leader Dominic Pileggi, which would sharply limit, but not eliminate, inmate access to the law. Another bill, HB 480, would limit felon access to “personal identification of [DOC] employees.”

Philadelphia Democratic state Rep. Mark Cohen opposes Swanger’s bill. He supports HB 1093, which would exempt records containing Social Security numbers, driver’s license numbers, phone numbers, home address, a spouse’s name, and other personal information. (Swanger is also a co-sponsor.)

Swanger insists that prisoners can use the legal system to acquire needed information.

“Every one of them has an attorney and they can request whatever information they need through that attorney,” she says. “My bill doesn’t take away all their rights. It’s up to the agency they contact.”

But government agencies are not known to give out information they are not required by law to release, and lawyers are scarce.

“It’s clearly an underserved population,” says Angus Love, executive director of the Pennsylvania Institutional Law Project. “To fill the void, jailhouse lawyers do the best they can despite their lack of professional training.”

In Washington state, legislators tried to eliminate prisoner access to the state’s Open Records Act, in what some believed to be an effort to stop the imprisoned editor of the renowned Prison Legal News from using the law in his reporting.“Prisoners sometimes find out embarrassing facts about the prison system and the government doesn’t like that,” says David Fathi, director of the ACLU National Prison Project.

Washington ultimately passed legislation allowing judges to block inmate requests if they can be demonstrated to have been filed for purposes of harassment, or pose a safety concern. This came after a convicted arsonist filed hundreds of requests, including many seeking personal information that law enforcement considered both threatening and creepy.

Mutchler says she would support creating “an alternative path to access information by prisoners” but wants to ensure it does not “preclude access to public record.”

“Keep in mind that some requests by inmates are excellent requests for records related to policies,” says Mutchler. “However, there are also some that have included asking the material used in guards’ underwear as opposed to inmate-issued underwear.”

Buehl has requested information regarding the use of delousing shampoo, the double-celling of prisoners, the frequency of laundering white clothing, the use of de-icing salts on prison walkways, attorney-requested telephone calls and the actual cost of goods sold in the commissary. The Right to Know Law, he says, is the “only way to get a nominally straight answer” from his jailers.