Pa.'s public-records czar faults Rendell on openness

HARRISBURG - The Rendell administration appears to be going out of its way to block public access to government documents. At least that is the impression left on the state's new open-records czar.

Terry Mutchler, executive director of Pennsylvania's Office of Public Records, has written to Gov. Rendell questioning whether top administration officials share the view that government should be open and transparent.

In the three-page letter, obtained by The Inquirer, Mutchler revealed a list of her concerns over how the administration has dealt with her and her staff - as well as individual records requests - since she was tapped to lead the open-records office in June.

According to her letter, the situation has gotten so bad that lawyers in Rendell's office have put representatives of every state agency on notice not to even take her calls. Everything has to be in writing, the lawyers insist.

"At a maximum, these examples demonstrate an anti-open-government spirit," Mutchler, a reporter turned lawyer, lamented in her letter to Rendell, written late last month.

She continued: "Some agencies . . . are using the Right-to-Know law as a shield with which to block information rather than a tool with which to open records of government."

Rendell spokesman Chuck Ardo yesterday described the differences between Mutchler and the administration as "procedural and not substantive," and said the administration did not believe it had "denied anyone information that the law requires us to make public."

Still, Mutchler, a Rendell appointee, is requesting that the governor send a memorandum to all state agencies directing them to work with her office.

Ardo said the governor had not sent out such a directive because "everybody in the administration already knows the governor's view on open records and transparency in government."

Reached yesterday, Mutchler, who oversaw public-records access in Illinois for four years before coming to Pennsylvania, said only that the letter "speaks for itself."

The state's new open-records policy was passed last year by the legislature and signed into law by Rendell. It went into effect Jan. 1 and declared that all state, county, and local government records are public unless specifically exempted.

The law also mandated an Office of Open Records to oversee what is billed as a sea change in attitude in Pennsylvania. For years the state's definition of what constituted a public record was very narrow - among the most restrictive in the nation.

At the time of her appointment, Mutchler wrote in her letter, she requested a meeting with secretaries in Rendell's cabinet to express her vision and get their suggestions on how to implement the law smoothly. That meeting has yet to take place.

She also wrote that her office had repeatedly sought to conduct training sessions with open-records officers in each of the state agencies and had been denied.

Until recently, her office had also been shut out of meetings at state agencies in which lawyers were discussing how to interpret the new law, she said in the letter. And now, at the direction of the governor's Office of General Counsel, state agencies have been instructed not to speak with Mutchler on any open-records requests on appeal to her office.

Then there are individual skirmishes over records requests.

Just this week, Mutchler's office ordered the Department of Environmental Protection to photocopy and mail documents to a lawyer who had been denied those services.

Asked about the case this week, Mutchler said she was stunned when she saw the DEP's legal explanation for not making copies and mailing the documents.

The agency, which will appeal Mutchler's order, had argued that all it was required to do was make the records available for review, and that it was not obligated to provide copies or mail them.

"I read this a couple of times to make sure I wasn't misreading it," Mutchler said of the DEP's argument. "Even if one could make a solid legal argument that there is no obligation to photocopy or mail records, my first question out of the box is, 'Why wouldn't you?' "

Under the open-records law, Mutchler's office is the first avenue of appeal when a record is denied.

Ardo said the DEP request would have required the agency to photocopy more than 3,500 pages.

"That's as big as a Dumpster," Ardo said. "We were offering the requester an opportunity to review all 3,500 pages and copy the ones they believed were relevant."

Ardo yesterday sought to downplay any tension between the administration and Mutchler's office.

"I think the very fact that we are not in lockstep should give confidence to the public that she is independent and that occasional differences will crop up," he said.

"And let's not forget we're working under a relatively new law here. There is no precedent other than what we are currently setting. . . . It will take some time to work out the kinks."