Do mayor's claims of a transparent city government hold up?

Posted: July 30, 2013

IT WAS JANUARY 2009, and the stars seemed to have aligned over Philadelphia, signaling what should have been a Golden Age of government transparency in our erstwhile corrupt-and-contented city.

Pennsylvania's new Right-to-Know Law - with its key clause that all government records are presumed to be public - had just gone into effect. No longer must citizens prove why records should be available to the public. Under the strengthened law, government agencies must prove why not.

And Philly had elected as mayor a reform-minded councilman, Michael Nutter, who was wrapping up his first year in Room 215. Open government is his thing. New day, new way.

"There is nothing that government does that cannot be done ethically and transparently," Nutter proclaimed at his inauguration in 2008. "Nothing."

Except, we now know, pitching municipal bonds to investors. And settling lawsuits. And, sometimes, budget briefings with City Council. Also, sheriff's sales and pension payments aren't entirely transparent. Neither are zoning appeals. Nor, in some cases, the way taxpayer-funded grants are doled out. And the mayor's past daily calendars are a closely guarded secret. Even elevator records have been deemed off-limits to the public.

Yes, elevators.

A Philly case in January 2009 was one of the first in Pennsylvania to test the new Right-to-Know Law through an appeal to the state Office of Open Records. A Bucks County man had been denied access to elevator-maintenance records from Philadelphia International Airport.

First, the city Law Department ignored him, forcing him to appeal. Then, about a month after his request, a city lawyer claimed that the man couldn't have the maintenance records because he hadn't asked with "sufficient specificity."

Terry Mutchler, executive director of the Pennsylvania Office of Open Records, who handles appeals by people who've been denied records, overturned that case and ordered the city to produce the elevator records. It wouldn't be the last time she'd have to set the city straight for essentially playing dumb or otherwise blocking legitimate records requests.

"They were using standard language, repetitively, to say they didn't understand what they were being asked for," Mutchler, a former Associated Press journalist, said last week. "If we can figure it out, they should be able to figure it out."

The elevator case, although inconsequential, provided an early glimpse into an ongoing problem within the Nutter administration that undercuts its carefully crafted reputation for openness and transparency.

While Nutter has won praise for appointing a chief data officer and releasing dozens of preapproved data sets - including detailed information on crime, elections, real estate and the city budget - administration officials and city lawyers also work behind the scenes to block requests for other information.

This is the side of the Nutter administration that the public doesn't usually see, and it is causing deep frustration both in City Hall and among those whose job it is to understand how government works and spends taxpayers' money.

"It has evolved from transparency to translucency," said Councilman Jim Kenney. "It's like putting Vaseline on glasses. You can see the light, but you can't see what you're looking at."

Interviews with dozens of journalists, public-records experts and elected officials reveal that, when it comes to fielding requests for government records, the "new way" of governing that Nutter once pledged is looking a lot like the old one in Philadelphia. In some respects, it might be worse.

"If the city of Philadelphia would say that it's open and transparent," Mutchler said, "I would have to disagree with that."

Is this whole transparency thing a sham? Is it a policy, or just a buzzword?

Right-to-No

"Transparency is a cornerstone of good governance, and it is vital for the City to be open and available to our citizens." That's what Nutter says on the city website.

So you'd think that Philadelphia City Paper reporter Ryan Briggs could easily find out who had received grants from the Philadelphia Activities Fund, a city slush fund.

Wrong.

First, Briggs was told he'd have to submit a formal request. But the city responded to his straightforward request for grant recipients with a Kafkaesque 1,400-word letter that claimed, among other things, that they didn't understand what he wanted because he'd used a different word ("documents") in the body of the email than in the actual Right-to-Know request ("records") that was attached to the email.

"At the outset, it is not clear which you are requesting since your request states one thing but your cover email describes your request in an inconsistent manner," wrote Assistant City Solicitor Jo Rosenberger Altman, the Law Department's open-records officer.

"In addition," she wrote, "the terms 'documents' and 'records' do not describe the type of records sought with sufficient specificity such that the City is able to determine specifically what records are being requested."

Got that? Now get this: One of Briggs' readers knew a lawyer who requested the same records using only slightly different language. The city produced the records in response to that request.

Turns out, the Philadelphia Activities Fund had given money to a group run by the wife of John McDaniel, a crooked political operative whom Nutter had appointed to a $87,125 patronage job at the airport. McDaniel is now in federal prison for stealing campaign money.

Briggs had a similar experience when attempting to track money from the Office of Supportive Housing (OSH) that had gone to the same group run by McDaniel's wife. He called OSH, which had been helpful in the past, to confirm that the money had been dispersed. But, on this issue, the walls went up in a hurry.

"I went from speaking with a department official to having someone call and tell me, 'I can't give you any information, you have to file a Right-to-Know request, and don't call back asking about it,' " Briggs recalled.

After submitting a formal request - and waiting about five weeks - Briggs finally got what he wanted: copies of three checks confirming the expenditures.

"There are some things where the administration likes to be very forthcoming," Briggs said, "and other things where red flags go up, I guess."

Isaiah Thompson, a reporter at AxisPhilly, said that some city departments are responsive but that the Law Department - which is run by City Solicitor Shelley R. Smith, a Nutter appointee, and often serves as the gatekeeper of public information - is another story.

"They frequently deny run-of-the-mill requests . . . absurd denials," Thompson said. "Sometimes, their policy seems to be just to deny it and make you appeal because it's easier than handing over the information."

Thompson currently is wrangling with city lawyers for documentation surrounding sheriff's sales. He's been denied so far.

"It was clear they were just sort of throwing the book at me and daring me to appeal it and hire an attorney," Thompson said.

'You're in my crib'

City Hall journalists learned that Nutter the candidate and Nutter the mayor were two different people in 2008 when his staff called security to keep them out of a closed-door budget meeting between the mayor and City Council. An armed guard showed up.

Now, 5 1/2 years in, it seems as if every reporter has a story - or several - about getting blocked, stalled, jerked around, retaliated against or frozen out by an administration that still boldly hoists the banner of open government. More accurately, City Hall insiders say, it's become an administration that is selectively transparent.

"If the administration truly cares about transparency, it can't just release the information it wants to release and then call it a day," said WHYY reporter Holly Otterbein. "The city must also be transparent even when it is inconvenient or politically damaging."

Sometimes, as with Briggs, the stonewalling happens on paper through the Law Department. Other times, it's when dealing directly with city officials, such as Nutter's pugnacious spokesman, Mark McDonald, who is just as likely to answer a reporter's question as he is to mount a Twitter attack as @PhillyPressSec.

"They live in a fantasy bubble filled with lots of magical thinking," said Paul Davies, a former Daily News and Inquirer journalist whom McDonald has called a "hack" on Twitter. "This mayor is extremely thin-skinned, and his flack is the biggest whiner I ever dealt with."

McDonald, who was reprimanded by Nutter last year for spreading false information about Daily News columnist Ronnie Polaneczky in response to columns she'd written about the Philadelphia Parking Authority, recently turned away a local TV reporter who went to City Hall with questions about the building collapse at 22nd and Market streets, telling the reporter, "You're in my crib, and I don't like it."

In 2011, Nutter announced that he was cracking down on tax deadbeats, saying in a news release that current and retired city employees must be held "to the same, if not higher standard as we hold other Philadelphians who owe back taxes, liens or have unpaid City bills." But when reporters learned in June that Nutter had a gas lien on his house, he and McDonald sang a different tune. They tried to talk the press out of running the story, describing it as a "private" matter.

"Nothing happened," Nutter said. "There's no story here."

Reporters say that Nutter is increasingly inaccessible, and that more requests for information from other departments are being funneled to McDonald - a former Daily News City Hall bureau chief - or require the filing of a written Right-to-Know request. McDonald said the mayor was not available to comment for this article.

The city often takes a month or longer to respond to formal requests. One reporter recalled a city official saying that the requested document had been located, but that the city was invoking the Right-to-Know law's 30-day extension to respond - simply to delay publication of the story.

"We continue to see resistance by the city to fulfill the letter, as well as the spirit, of the law," Mutchler said.

After locking reporters out of budget briefings in 2008, Nutter agreed to open up the process the following year. But this April, the city barred the media from attending an investors' conference at which officials discussed the city's fiscal condition, prompting a harsh rebuke from the Associated Press, Bloomberg, the Inquirer and the Reporters Committee for Freedom of the Press. That led to a Reuters report questioning whether institutional investors were getting nonpublic information that put retail investors at a disadvantage.

Back at City Hall, officials have prohibited reporters from using iPads to scan officials' statements of financial interests, which are public record. It is unclear why. The Committee of Seventy watchdog group has been prodding the city to post that information online for years.

"Every year, we say, 'Make this available online,' " said Ellen Mattleman Kaplan, the committee's vice president and policy director. "This is a prime example of a situation where the public deserves to know. This is a way for the taxpayer to know if the people in the upper echelons of government have a conflict of interest."

Pressure mounts

It's not just the press. Elected officials are losing patience, too.

In May, City Council threatened to subpoena the Nutter administration for information about property-tax assessments, and Council President Darrell Clarke mentioned that option again this month when the administration blocked representatives of some departments from appearing before a committee probing the June 5 building collapse.

City Controller Alan Butkovitz, who said his attempt to obtain property-tax information was "completely ignored" by the administration, said the situation has gotten so bad that he has considered getting in line with the public and filing a formal request, thinking he might have a better chance of prying something loose.

"At one time, I considered doing a Right-to-Know request," Butkovitz said.

Butkovitz said the Nutter administration expanded its information blockade in February when Smith, the city solicitor, told him to stop releasing legal memos that explain why the city settles lawsuits. The memos had been treated as public records for decades.

Zack Stalberg, president of the Committee of Seventy, blasted Smith's decision - which Nutter supports - as "wrong, hypocritical and cowardly." Butkovitz said the administration should have to explain why it's paying out settlements, not hide behind attorney-client privilege.

"The city is acting like they are a company and a defendant. But it's a democratically elected government where people have a right to participate," Butkovitz. "If there's a certain practice that has resulted in numerous people getting killed or seriously hurt, that would be an important fact for people to understand. I'd say saving lives and avoiding injury is more important than reducing the city's financial liability."

Smith said the city decided to clamp down on the settlement memos after a Commonwealth Court case last year gave it the authority to claim attorney-client privilege. She dismissed Butkovitz's rationale for continuing to release the memos, saying that doing so would benefit plaintiffs who sue the city, which ultimately would cost taxpayers.

"The fact that we settle a case doesn't mean that we've done anything wrong," Smith said. "There's no necessary connection between the fact that a lawsuit has been filed or settled and the fact that something is actually wrong."

Smith also defended the city's decision to withhold other records, saying, "There has to be a balance between the public interest in getting information and the government's right to do business in the way that a business does business."

No comment

McDonald pointed to the Philly311 customer-service system and the OpenDataPhilly portal as evidence that Philadelphians are able to access government services and information better than in prior administrations. He insisted that city officials do their best to accommodate journalists and others seeking information.

"When he took office, from day one, he wanted a better, more responsive, more respectful operation than had existed in the John Street years," McDonald said of Nutter.

But Laurenellen McCann, national policy manager at the pro-transparency Sunlight Foundation, said governments can't pat themselves on the back if they're posting statistical data sets online with one hand while limiting access to public records with the other.

"Are not public records the most basic form of open data?" McCann said. "The default should be set to 'open.' "

That wasn't the case following the Market Street building collapse that killed six people. For weeks, the Nutter administration was in lockdown, denying requests for virtually all information about the collapse and other demolition sites around the city.

Smith told the Daily News this month that Assistant District Attorney Ed Cameron had instructed her office - in her words - "not to turn over anything" about the collapse due to the grand jury investigation. She said the District Attorney's Office then must have "reversed course" by issuing a statement July 11 that said public records should remain public, despite the grand jury.

Under intense pressure from the media and City Council, the administration finally posted some of the information online July 19, including a May 22 email from the building's owner to Deputy Mayor Alan Greenberger warning of "a situation that poses a threat to life and limb" and inspection reports that incorrectly stated that no asbestos was in the building.

Tasha Jamerson, director of communications for the District Attorney's Office, said her office never told the Nutter administration not to release those documents.

"That is absolutely not true," Jamerson said of Smith's claim. "They were just using that blanket statement of 'the grand jury' to say 'no' to every request."

Either way, Nutter may have to make some changes if he wants his legacy to include open government.

"This trend away from transparency is wrong, especially because we're dealing with taxpayer dollars for the most part," said Stalberg, a former editor of the Daily News. "It certainly runs counter to the image Mayor Nutter has tried to put forward. In my view, it's not characteristic of a strong, forthright CEO."

Ernest Sasso, the Bucks County lawyer who'd requested the elevator records in 2009, said he would have had no cooperation from the city if the state hadn't stepped in to enforce the Right-to-Know Law. He said he thinks Nutter is a "decent person at heart," but he's sick of politicians who embrace transparency on the campaign trail, then slam the office door once they're elected.

"They make these grandiose pledges about openness and transparency, but they just don't deliver," Sasso said. "They'd rather work in secret."


On Twitter: @wbender99

Blog: ph.ly/DailyDelco

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