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Pennsylvania's open records director sitting in limbo

Terry Mutchler, Executive Director, Office of Open Records

More changes pending?

Senate Majority Leader Dominic Pileggi, R-Delaware County, sponsored a measure to further change the state's open records law:

• State-related universities, including the University of Pittsburgh and Penn State University, would be required to establish a searchable, sortable and downloadable database of spending on their websites. The schools would have to disclose the top 100 paid employees and post contracts valued at more than $5,000 on the state Treasury Department's database, along with state contracts.

• Categories of information open to prison inmates would be limited primarily to records pertaining to them, their cases and state institutions to lessen the workload coming from inmates. Last year, 41 percent of the appeals the Office of Open Records handled came from inmates. One request sought the composition of inmates' underwear compared with the composition of guards' underwear, officials said.

• The definition of “local agency” would be expanded to include campus police departments, economic development authorities and industrial development authorities. Those entities would be required to supply public records.

• Requestors could submit a records request to an agency head and to the designated open records officer.

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Monday, Aug. 4, 2014, 11:30 p.m.
 

The woman hired six years ago to oversee sweeping changes to Pennsylvania's open records law is waiting to see if she still has a job.

More than three months since her six-year term expired as executive director of the Office of Open Records, Terry Mutchler doesn't know whether Gov. Tom Corbett will reappoint her to a second term.

Mutchler, a former Associated Press journalist, took the $142,358-a-year post after lawmakers voted in 2008 to grant unprecedented access to the inner workings of public agencies.

“Every day you come in (and), for me and my family, we wonder if that's my last paycheck,” Mutchler said. “I'm willing to take that, but it's very, very stressful on the staff.”

Corbett spokesman Jay Pagni said the governor will decide “at the appropriate time.”

Mutchler said that as a “liberal Democrat, out-lesbian,” she might be out of Corbett's comfort zone — but said, on balance, her deputy, Nathan Byerly, is a conservative, straight man who voted for Corbett.

State officials from both parties have sent Corbett at least five letters on her behalf.

Senate President Pro Tempore Joe Scarnati, R-Jefferson County, and Majority Leader Dominic Pileggi, R-Delaware County, cited Mutchler's “unimpeachable integrity, unwavering fairness, and a strong work ethic” in their July 22 letter.

“I think it's sort of sad she hasn't been reappointed by the governor at this point. I don't understand the delay,” said Sen. Matt Smith, D-Mt. Lebanon, who co-signed a letter to Corbett with Sen. Lloyd Smucker, R-Lancaster, about six weeks ago.

For Mutchler, more is at stake than a paycheck.

She has an emotional attachment to the office she built from the ground up, to enforce open records revisions when the law took effect in 2009.

She recalls starting the job in a cubicle with just a copy of the law, and gradually hiring experts in various fields of law.

Since then, her office has handled more than 11,000 appeals of denied Right-to-Know requests, answered more than 50,000 emails and phone calls, watched 500 cases go to court, and conducted about 1,400 training sessions for public officials, journalists and citizens.

Her work is not done, she said.

“I believe it will take a full 10 years before we have a body of case law that really shapes this law,” Mutchler said. The office director “has to be someone who is pro-open government, and not pro-agency or pro-requestor.”

The law radically changed public access to records by presuming that all records are public unless a government entity can prove they fall under one of the law's exceptions. Before, the person making a request had to prove why a document should be public.

Observers say the law vastly improved government openness but more changes are needed.

Erik Arneson, spokesman for Pileggi, the architect of the 2008 law, called it “an absolute, unqualified success.”

“Many thousands of records were released over the last six years, which would have never seen the light of day under the old law,” Arneson said. “There has certainly been a learning curve both on the part of agencies and requestors, but overall, it has been more of a success than we had hoped for.”

Open government advocates are measured in their praise.

“The Office of Open Records has been a great resource,” said Melissa Melewsky of the Pennsylvania NewsMedia Association. “While we don't agree with everything they decide, they keep a lot of people out of court, and that's a good thing.”

Previously, requestors had to sue to appeal a denial of a records request, Melewsky said.

Still, advocates believe the wording in exceptions is too broad for records that deal with investigations and “internal, predecisional deliberations.”

Kim de Bourbon, executive director of the Pennsylvania Freedom of Information Coalition, said school districts and government agencies can use the predecisional exemption to withhold virtually any record made before a vote.

“(The law) was designed to give the public access to the government and be part of the decision-making process,” de Bourbon said.

Nationally, Pennsylvania has gained ground over other states since 2008, usually ranking in the middle of the pack in terms of openness.

But it's a far cry from some states, such as Florida, where openness dates to common law in the 1800s.

In 1992, Florida voters made access to government records and meetings a right guaranteed in the state's constitution, said Barbara Petersen of the Tallahassee-based First Amendment Foundation.

“I think journalists who know their way around (open records laws) ... would much prefer to have Florida's law than anybody else's,” she said.

Kari Andren is a Trib Total Media staff writer. Reach her at 724-850-2856 or kandren@tribweb.com.

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