Stumbles aside, Pa. open-records law is a work in progress

Terry Mutchler, who heads the state office that adjudicates records disputes before they reach the courts, is optimistic about the right-to-know law.
Terry Mutchler, who heads the state office that adjudicates records disputes before they reach the courts, is optimistic about the right-to-know law. (ELIZABETH ROBERTSON / Inquirer Staff)
Posted: October 26, 2012

More than four years have passed since Pennsylvania rewrote one of the most restrictive right-to-know laws in the country.

Before the overhaul, public officials hardly bothered with excuses when rejecting requests for access to information other states released routinely. And the law largely permitted that secrecy.

On paper, the new open-records act changed all that. All documents and data produced in the course of public business are now presumed to be open for public inspection, except for those covered by specific exemptions.

So far, so good.

But once the law was enacted, public officials across the state freaked out.

Reporters were suddenly asking to see highly sensitive e-mails. They wanted access to the calendars of Mayor Nutter, Gov. Corbett, and Philadelphia's City Council. They requested the home addresses and dates of birth of public employees. And they were seeking access to databases that had been for internal government use only.

Like most journalists, I consider it obvious that the public should be able to review virtually all records produced by government agencies doing the public's work. (Indeed, my wife is a media attorney who works to ensure access to public records.)

Journalists want the information because it can shed light on matters of genuine public interest. What power brokers does the mayor meet with most? Do Philadelphia municipal workers actually live in the city, as required by regulations? Do off-the-cuff e-mails explain the real reasons behind a controversial policy shift?

Elsewhere, government officials comply. San Jose Mayor Chuck Reed posts his full calendar online daily, and so does his chief of staff. The culture of open records is so strong in Florida that Gov. Rick Scott was criticized for not automatically publishing all of his e-mails.

In Pennsylvania, even those who support the release of public information can waver on transparency when it comes to their own documents. Mayor Nutter, for instance, mandated wider release of city data. But he fought hard to avoid sharing his daily schedule with The Inquirer.

Among other arguments, the city contended that releasing the schedule constituted a security risk because a potential attacker "could use the past schedules to discern certain patterns of travel."

Which is ridiculous, considering that Nutter routinely publishes the time and location of his public events well in advance (not to mention that he can usually be found at whatever city jukebox is currently playing the Sugarhill Gang's "Rapper's Delight.")

But nobody expected public officials to adapt to the new reality overnight. Rather, they'd adjust over time, by court order if necessary.

And really, that's where the real-world strength of Pennsylvania's right-to-know law will be determined; in the courtrooms of elected judges, many of whom owe their positions to the same political machines that elect mayors and city and county councils.

Unfortunately, some lower courts have done all they can to eviscerate a right-to-know law that the legislature plainly intended to be one of the most expansive in the country. Plenty of these Common Pleas judges are, by disposition and background, simpatico with government officials, and thus horrified at the prospect of releasing reams of formerly private documents.

And then there are the incompetents.

"We consistently have Common Pleas Court judges . . . that either haven't read the law or have a fundamental misunderstanding of how the right-to-know law works," said Terry Mutchler, executive director of the Pennsylvania Office of Open Records, which adjudicates open-records disputes before they reach the courts.

But despite the errors of some lower courts, the right-to-know law has been largely preserved and in some cases strengthened by the state's Commonwealth Court, Mutchler contends.

It hasn't felt that way recently, particularly locally. In the last 10 months, Commonwealth Court has upheld lower-court rejections of three Inquirer requests for public records, one of which was for Nutter's daily calendars.

Mutchler concedes that was a blow. "I say this with respect, but the court was flat-out wrong," she said. "The calendar of an elected official should be a public record, and it has been across the country for the last 30 years."

Nonetheless, Mutchler is optimistic. "Could you pick out some setbacks for the right-to-know law? Absolutely," she said. "But there are a lot more rulings in the 'nailed it' column than in the 'wow, what are you thinking' column."

Not a glowing endorsement, perhaps, but better than many journalists - as well as plenty of others who value open access to public information - had feared.


Patrick Kerkstra is a freelance journalist and former Inquirer staff writer. He can be reached at Patrick@PatrickKerkstra.com or on Twitter @pkerkstra.

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