Pa. Open Records Office keeps facing new challenges

HARRISBURG - When the Office of Open Records was created by Pennsylvania's landmark 2008 Right-to-Know Law, there was no precedent for how an independent agency would handle citizen appeals for government documents. There weren't even a logo or office furniture.

Now, five years and more than 6,000 cases after the appointment of its first director, the office confronts new challenges: handling nearly double the caseload from when its doors opened in 2009, and dueling with government agencies that keep finding reasons to turn down citizens' requests.

"When I looked at the law, I really thought I'd have the opportunity to do some very sophisticated legal work related to open government," said Terry Mutchler, who five years ago was named the office's first director. "Yet we're still saying to people, 'Yes, Mr. Mayor, your salary is public.' "

Two recent cases underscore the office's role in helping citizens win access to records - whether the citizen is a teenager or a reporter for the world's largest newsgathering organization.

The Chambersburg Area School District denied a 13-year-old's request to see a contract for an after-school hip-hop dance program on the basis of her age - and district officials threatened to slap her with legal fees if they won.

But the Right-to-Know Law has no age limit. Teenager Savannah Gibson won her appeal.

Commonwealth Court on Tuesday upheld a ruling by the open-records office in a long-running dispute between Gov. Corbett and the Associated Press. A seven-member panel ruled unanimously that the governor's calendar and e-mail records are not exempt from the Right-to-Know Law.

The AP sought records from an 18-day period shortly after Corbett took office in 2011. His administration provided records, but blacked out 17 e-mails and 28 calendar entries on ground that the information could suggest the nature of internal deliberations that are exempt from the law.

Corbett's office said late Tuesday it would comply with the court's decision.

"This is an important case," said Mutchler, 47, a former journalist and lawyer who served as open-records coordinator for the State of Illinois before she was appointed to the Pennsylvania post by then-Gov. Ed Rendell. "This says to citizens that the law you got behind, and the office that was created, works."

Most cases don't make it to the desks of Mutchler or her staff; they are resolved at the local level, a fact that pleases the legislator who crafted the law.

"I think there's a consensus the law has been an unqualified success," said Senate Majority Leader Dominic Pileggi (R., Delaware). "It's one of a small number of areas where we have led the nation in a piece of legislation others have tried to copy."

The 2008 law shifted the burden of proof from the requester to the government entity. Previously, a requester had to show why a record should be open to public scrutiny. After the law's passage, the government entity had to demonstrate why a record should be denied.

Even now, a citizen who wins a ruling from the Office of Open Records may face an uphill fight in court. A municipality or other agency that appeals such a ruling typically has lawyers on hand to fight the case.

At the same time, the Office of Open Records, with its staff of 11, including seven lawyers, is grappling with its growing caseload. In 2012, there were 2,188 appeals filed with the office, compared with 1,159 in 2009.

Mutchler said 41 appeals were filed during a two-day period last week alone. Not that her office always sides with requesters - in fact, she said, that only happens in 42 percent of appeals.

Roughly 30 percent of appeals come from prison inmates, something she and Pileggi would like to rein in.

"Although they should have a right, they should not overburden the office with requests," said Pileggi, who on Tuesday introduced a bill to amend the law to limit areas of requests prisoners can bring before the office.

His bill would also address another issue not anticipated in the law: the number of commercial requesters seeking government information to help sell products or services.

Supporters credit Mutchler and her staff with handling the workload efficiently despite increases in cases amid limited increases in funding. Corbett has proposed increasing the office's annual budget from $1.37 million to $1.41 million; Mutchler is seeking $1.8 million.

The office "is one of the few positive dividends that resulted from the pay-raise debacle," said Eric Epstein, founder of the Harrisburg watchdog group Rock the Capital, referring to the outcry over the legislature's boosting its own pay in 2005. "They do yeoman's work."

One legislative proposal that could drive up appeals exponentially, Mutchler said, is a move to eliminate the exemption for records of the four state-related universities - Temple, Pittsburgh, Lincoln, and Pennsylvania State. A bill prompted by the Jerry Sandusky child sex-abuse scandal was approved by a House committee Monday and is headed to the full chamber for a vote.

Mutchler figures the office could see as many as a thousand appeals seeking records connected to the many tendrils of the Sandusky case alone.

Cases like the central Pennsylvania school district's denial of a student's request because of her age lead Mutchler to believe that plenty of officials still see the act as government overreach - and citizen bullying - at its worst.

"What the Chambersburg case shows is, oftentimes people lose sense of what the law's about," said Mutchler, whose six-year term ends in 2014. "You had a team of lawyers against a 13-year-old girl. If the real motivation was to test the Right-to-Know Law, a 30-second phone call to find out whether a minor is permitted to use the law - as the teenager did - would have solved that."