Open records director dispute in hands of Pa. state court panel

A dispute over a last-minute appointment and an unceremonious dismissal has given rise to what Commonwealth Court President Judge Dan Pellegrini called “probably the most important independent agency case that we’ve had in decades.”

A Commonwealth Court panel heard arguments Wednesday over whether Gov. Tom Wolf had the authority to fire Office of Open Records Director Erik Arneson, appointed to a six-year term in the twilight of then-Gov. Tom Corbett’s tenure.

The problem before state judges is simple enough: The language creating the Office of Open Records doesn’t prescribe a process for removing the agency’s director. How independent is the office, then, based on its functions and the statute that created it?

“The difficult thing is this seems to be almost a judgment call,” said Judge Kevin Brobson during the hearing. “Which, I guess, is why we are judges.”

The administration says Wolf was allowed to remove Arneson, because the open records director serves at the governor’s pleasure.

“It’s our position that the director is removable at will,” said Kenneth Joel, a lawyer with the attorney general’s office. He added that the judges should defer to the governor’s power unless there’s clear legislation to do otherwise.

“I’d be out of a job if the General Assembly was clear,” said Brobson.

But lawyers for Arneson say the Legislature designed the Office of Open Records to be protected from the whims of the administration. They argue that the office is “quasijudicial,” deciding records request appeals for executive-branch offices, and that the six-year term for directors was meant to keep the office from turning over with each new governor.

“You can’t have them subject to an ax over their heads,” said Joel Frank, a lawyer with Lamb McErlane, arguing on Arneson’s behalf.

Pellegrini said that, by that logic, state lawmakers could “gut” the power of the governor.

“How do you answer to the electorate, the citizens?” said Pellegrini.

Wolf’s administration has suspended the search for an open records director until the lawsuit is resolved. A decision could be made within a month.

“There’s nothing left that’s out there to be discussed in this case,” said Arneson after the hearing. “Everything is in front of the judges, and we look forward to this decision.”