Regardless of what camp you find yourself in on the topic of Amazon’s HQ2 courtship with North American cities, the process has triggered open record requests and questions about the degree to which cities are required to disclose the documentation of their overtures to the corporate giant.
This is especially true in Pittsburgh, where inclusion of the region’s bid, titled PGHQ2, as one of 20 finalist cities led to renewed demand for the full proposal to be released via the state’s open records law. Why is this important? Many cities have offered significant tax and civic incentives to sway Amazon’s interest. With promised results of $5 billion in economic investment and the creation of 50,000 jobs, an argument can be made that it is in the public interest to know how elected officials believe HQ2 will influence the social, political, and economic fiber of their region.
These desire for details have manifested themselves in open records requests throughout many candidate cities, to varying degrees of success. Pennsylvania’s mechanism for open records requests, the Right-to-Know Law, was signed into law in 2008 and is facilitated by the state’s Office of Open Records. Like many open records laws, all records are presumed to be public and are deemed “open” unless one of several exceptions bars their disclosure. Thus, the burden is on the government agency to argue why certain records, for instance a proposal with wide-ranging public impact, should not be made publicly available.
So what’s happening in the Steel City? Like hundreds of other cities across North America Pittsburgh submitted its bid in October 2017, the details of which were not publicly disclosed. PGHQ2, led by elected city and county officials, first cited a confidentially agreement with Amazon. The reasoning for secrecy soon shifted to “protecting a competitive advantage.” Right-to-Know requests for the proposal were refused. Requests for secondary records (letters, emails, notes) pertaining to the process, not the proposal itself, were met with half hearted gestures. The City initially stated those weren’t public either; the county responded that “the records do not exist.” Eventually these secondary requests were fulfilled through state intervention (Harrisburg itself is a big proponent of Pittsburgh’s bid).
But what of the PGHQ2 proposal? As is often the case with open records requests, persistence pays off. Fast forward two months to January 24, when news broke that Pennsylvania’s Office of Open Records issued a ruling on a Right-to-Know request filed by local WTAE reporters ordering Allegheny County and the City of Pittsburgh to make the full PGHQ2 proposal and corresponding documentation public within 30 days. In a coincidental twist, both entities have 30 days to appeal, the same period one has to return unopened items to Amazon. If delivered, there’s no doubt Pittsburghers will open this proposal package.
The jury is still out on whether or not it’s truly in the region’s best interest that the PGHQ2 push is successful. With revived economic sectors, oft-touted cultural amenities, regional charm, and room to grow, Pittsburgh’s case is compelling. But the records and documents supporting that case shouldn’t be kept from the very citizens that make Pittsburgh so alluring. Open records laws, like Pennsylvania’s, are meant to serve the public good and promote transparent and accountable government. If Pittsburgh officials baited the PGHQ2 hook with tax incentives, public domain authority, or questionable civic inducements, the citizens of Southwest Pennsylvania certainly have a Right-to-Know.
As many records managers note, recordkeeping decisions are in the news on a daily basis (with today’s accelerated news cycle, it often feels like an hourly basis!). Our last Resourceful Records Manager interview astutely noted, “As I first assumed RM responsibilities, I sat in on a conference talk by a leader in the field, who cited a news headline on records mismanagement and dissected it with great enthusiasm. As I realized that records implications are everywhere, the massiveness (and potential massiveness) of the profession made an impression on me.”
It’s increasingly clear that one of the major areas of public discontent is around disposition. Disposition is the decision that guides what should happen to records once they have reached the end of their useful value from the records creator’s point of view. Disposition can either take the form of destruction, or transfer to archives. I am enormously sympathetic to concern over this topic – there are very real worries that public records and data will disappear because it does happen – sometimes for normal reasons, sometimes for scary Orwellian reasons. However, not all disposition is created the same, and one of the most valuable things that records managers can communicate to the public is explaining the difference between what’s normal and what’s not normal when it comes to what should be destroyed and what should be saved.
This isn’t something that only records managers and archivists struggle with – our library colleagues navigating the rocky paths of weeding old books and media have their own public relations horror stories. Librarians and archivists know that a collection development policy is there not only to guide collecting decisions, but to protect librarians and archivists from future headaches (in this case, getting saddled with tons of out of scope collections or donations). A collection development policy is also in the public interest – a library or an archive so bogged down by a backlog of unprocessed and out of scope donations doesn’t serve the general public well at all.
I think of records retention schedules – in many institutional archives, the de facto collection development policy – performing a very similar role. You can’t keep everything due to resource constraints, and even if time and money were no object, you still shouldn’t keep everything from a liability perspective. On a hypothetical basis, the general public understands that all records can’t, and shouldn’t be, kept forever in an institutional setting. Where things break down with public understanding are questions of how long to keep those records, and what should happen to them after they are no longer actively needed.
This was vividly illustrated during some recent research I’ve undertaken on regulatory failures concerning hydraulic fracturing. The short version is that fracking technology and proliferation is far ahead of existing oil and gas regulations. The current regulatory environment cannot keep up with fracking’s environmental impacts, and failures of recordkeeping are a prominent part of larger regulatory failures. Many groups have been filing open records requests to try to understand the impacts of fracking on rural land and water. The Pittsburgh-based investigative reporters of Public Herald has done enormous work in this area, scanning citizen complaint records from Pennsylvania’s Department of Environmental Protection, and making them available through a public files website, and mapping the complaints. Many of these complaints trigger subsequent investigations into whether fracking has resulted in an impact on local water supplies. In other words, a “positive determination of impact” would mean that the Department of Environmental Protection found that fracking affected water supplies.
As much as I admire the work of the Public Herald, I strongly object to one of their assertions about a very normal recordkeeping issue. In their article claiming that the Pennsylvania Department of Environmental Protection systematically cooks the books, they laid out nine different methods to substantiate their argument. Some of the recordkeeping practices are indeed serious cause for alarm, but the final one (“DEP Retention Policy for complaint records says complaints are to be kept on file for five years, “then shred.””) struck me as a complete misunderstanding of retention scheduling. Scheduling records for destruction is not a method for manipulating records, and it’s disingenuous to claim otherwise.
The Public Herald wrote the following:
Around month twenty-eight of this investigation, sitting down to scan the last remaining complaint files, a paper with everything blacked out except one paragraph was left on Public Herald’s file review desk by a veteran PA Department of Environmental Protection (DEP) employee. It read “DEP retention policy.” In a paragraph about “Complaints,” the document revealed that the Department should only hold complaint records for five years after resolution – “then shred.”
Initially, Public Herald figured these records would be kept on microfiche or a digital PDF and that shredding them would only ensure space within the records office. But, after careful questioning with an employee who’s been with the agency for decades, the staff person revealed that only those records which could be considered “useful” would be kept on record at all, turned into microfilm, and “useful” meant only those listed in DEP’s 260 positive determinations. What shocked us even more is that, according to this whistleblower, there is no review committee in place to sift through the “non-impact” complaint records before they are shredded.
The Public Herald rightfully raises important and compelling questions about how DEP assesses the question of fracking’s impact. But only part of the retention schedule is posted – the remainder is redacted. Without having the full context of the retention schedule, we do not know what other information is kept for say, 100 years (as one of the redacted record groups appears to be), and it very well may be that information otherwise in the public interest is kept for much longer. I tried to do a quick search for the full schedule online – although I could not easily find it (one of my biggest pet peeves common to state agencies – for some reason, I find it easier to obtain municipal and federal agency records schedules), one could almost certainly obtain an unredacted version of it by filing a Pennsylvania Right to Know request.
Perhaps this is the first time Public Herald has encountered a retention schedule, but the presentation of this as a shady and strange document is truly unfortunate. Furthermore, the write-up demonstrates how little the public understands about why records are scheduled the way they are – which is that the vast majority of retention decisions begin, and often end with, “How long must we keep these records to fulfill legal obligations?” Simply put, what is to be gained by maintaining complaint records for more than 5 years, given that most local, state, and federal agencies can barely keep up with managing records as they are currently scheduled? Proposals to retain records even longer would have to make a very compelling reason for why.
Many of the applicable statutes of limitations associated with potential liability brought by complaints would fall within 5 years, so a 5 year retention period for both impact and non-impact determination records doesn’t seem abnormal. Furthermore, the suggestion that a review committee should determine the final disposition of individual records is a recipe for disaster. Public comment absolutely can and should inform the broad formulation of retention scheduling decisions – for example, if members of the public could make a compelling argument for retaining the complaint records more than 5 years, that is something that should be seriously considered and perhaps incorporated into retention policies. But a committee to review the final disposition outcome for individual complaint case files is not realistic, and would almost certainly result in far more political bias. Who would be on the review committee? How would they document their decisions? How fast would they be expected to work? Witness how slow and controversial federal records declassification is if you want a glimpse of what individual-record-determination-decision-by-committee would almost certainly look like in practice.
Bottom line: as many archivists have pointed out, there is almost nothing that is neutral about the world of records and archives. Many records retention scheduling decisions are areas that significantly misunderstood by the general public. It would behoove more records managers to talk openly and transparently about why and how we schedule records the way we do. Others may disagree with our decisions, but at least the process will be clearer to those encountering records retention schedules for the first time.
Update: At their request, this post has been updated to more accurately identify the Public Herald as investigative reporters.
Welcome back from SAA! Or, if like me, you were #saaleftbehind, welcome back from the weekend, I guess. I’ve been pretty quiet on The Schedule for a while; part of that has been my natural tendency to fall behind on blog posts, but the other part has been this:
That’s right! In case you missed it on social media or in the MAC Newsletter, I have left my position of 10 years as University Records Archivist at UWM and moved across town to become the Records Officer and Document Services Manager for the City of Milwaukee. In some ways it’s kind of an odd position, born out of the Document Services Section’s previous life as Milwaukee Printing and Records. I manage the City’s Records Management program, yes, but also the City Records Center, the City’s imaging service for long-term inactive records (previously the microfilming service), and, for some reason, the City Mailroom (which has of course had the most major issues crop up, since it’s the part of this job I know the least about). Despite this sort of odd present, the position has an exciting future—City Records is going to be merging with the Legislative Reference Bureau library and the Historic Preservation Office to create a City Research Center, the nature of which is still being determined. Coming in now thus gives me a great opportunity to help shape not just my position, but the way that active, inactive, and archival information is managed across the whole city going forward.
But anyway! Local government! I’ve spent most of my career doing Archives and Records Management in an academic setting, and have a pretty good chunk of experience from undergrad and grad school working in a Federal government records setting, but municipal government is a new beast for me (and for this blog, I think!). Don’t get me wrong—I am enjoying the challenge of working in a new context, but it IS a challenge. Moving to a new institution and setting has given me a lot to chew over and learn about. For the sake of not writing a 5000-word post, three examples:
As more and more law enforcement incidents are captured on police officer-worn body and dashboard cameras, states are obliged to consider legislation that governs the creation, retention, and public access of such records. Regulations, where they do exist, often lack uniformity between municipalities, cities, and states, as illustrated by the Brennan Center’s guidedetailing police body camera retention policies across the U.S.
Awareness of such regulations, and navigating their inconsistencies, is an important part of how records managers execute their positions. What happens when retention and preservation provisions are absent from legislation governing the creation and access of such police records?
The Pennsylvania General Assembly is currently considering a bill that would legislate law enforcement use of body-worn cameras, and more importantly, public access to such records. Approved by the PA Senate (currently pending a vote in the House) on October 19, Senate Bill 976 – an expansion of Pennsylvania’s current Wiretap Act – would essentially do two things.
First, the bill would increase areas where police officers are permitted to use body cameras, such as within private homes and in public spaces. Under the bill, officers would not be required to directly inform individuals they were potentially being recorded. Second, the bill would place a considerable burden on those attempting to access these records.
SB976 stipulates that within 14 days of the incident a written request be submitted that includes, in “particularity”, the date, time, and location of the incident. Each individual in the footage must be identified by the requester, or at the least, described. If a request is denied – grounds for dismissal include lack of “sufficient particularity” – an appeal must be filed in a PA Court of Common Pleas within 14 days of the denial, a $250 filing fee will be applied, the written request must be resubmitted, and finally “if the requested audio or video recording was made inside a structure, [identify] the owner and occupant of the structure.”
The amendment seems to contradict itself in that it specifically states that “an audio or video recording by a law enforcement officer shall not be subject to production under the act of February 14, 2008 (p.l.6, no.3), known as the right-to-know law” (Section 6702) while stipulating that that a court may grant release if a “preponderance of evidence” are met, including that “disclosure of the audio or video recording would be permissible under the right-to-know law.”
Pennsylvania civics and policy aside, you may be asking where records management fits into all this? While legislating officer-worn body camera use and record access, the bill does nothing to address appropriate retention periods and preservation methods law enforcement entities could be required to employ uniformly across the state. The bill actually removes language concerning retention periods of certain recorded communications. Primary sponsor Sen. Stewart Greenleaf, R-Montgomery, has acknowledged that provisions governing how long footage and accompanying data must be retained before it’s erased, as well as when a body-worn camera is turned on or off, are not considered in the bill.
The intent of the SB976 may be noble (“body cameras have a civilizing effect on both the officers and members of the public”), and there is no doubt that balancing public transparency, individual privacy, and the integrity of police investigations presents public policy and records management challenges alike. However, constraints to access and record keeping oversights may only serve to distance the citizenry from law enforcement and public officials, rather than fostering the transparency and trust the bills seeks to instill.
As states continue to consider legislation governing the use and access of police officer-worn body and dashboard camera records, records mangers should be engaged in this dialogue. If creation and access to such record can be legislated to serve the public interest, so too can record keeping policies. Records mangers must continue to be advocates for clear and consistent retention and preservation provisions that benefit the public good, in Pennsylvania and across the nation.