Where's the plan?

For a while now, Morrisville residents have eagerly awaited the "six point plan" put forward by the Emperor, but safely hidden from the public's scrutiny and debate.

One parent has now gone to the state to force the Emperor to make the plan public. Kate Fratti has a blog entry about it.

My reading of the PA state right to know law exceptions says that this is not likely to prevail.

Here's hoping I'm wrong.

What's the plan, Mr. Hellman?
By: Kate Fratti

In Morrisville, a parent applied to receive a copy of "a six point plan," authored by School Board President Bill Hellmann and has been denied. Kevin Leather has appealled under the right to know laws. Here's hoping he's successful. Folks have a right to know what their elected leaders are planning. Or in this case, should the word be plotting? Why else would leaders be so secretive?

April 20, 2009 05:35 PM

Some Officials Not Following Open Records Law

From WGAL-TV

Some Officials Not Following Open Records Law
Legislation Allows Citizens To Request Information From Any State Agency

POSTED: 5:47 pm EDT April 14, 2009
UPDATED: 9:19 am EDT April 15, 2009

HARRISBURG, Pa. -- The state's new open records law is designed to help citizens better understand how government works in Pennsylvania, and in many ways it is working. But some officials are still going out of their way to keep information from the public.

Nearly every day, the public can take a tour of the state Capitol building to learn about its architecture and history. But there is a lot that goes on in the Capitol that Pennsylvania residents never hear about. That's where Terry Mutchler comes in.

"There are public officials that view the Right To Know law as a nuisance," said Mutchler.

Mutchler is executive director of the state's newly created Office of Open Records, which is tucked away in a corner of the Keystone office building in Harrisburg. She said the law has only been in effect for a few months, but that hasn't stopped some public agencies from misusing it.

"I will sometimes hear from public officials who are following the letter of the law and the spirit of the law," said Mutchler. "But I'll also hear from folks who say they'll hide their Right To Know officer so they can never receive a Right To Know request," said Mutchler.

The law allows anyone to request information from any government agency in the state, from local municipalities all the way to the governor's office.

Agencies Must Copy, Mail Records

A recent dispute involved whether government agencies are required to make copies and mail records that are requested. Some have refused to do so.

"When the law talks about postage and photo copiers, the intent is that you do, as a government official, have the obligation to photocopy and mail records," said Mutchler.

She said workers in state agencies were also recently directed by the governor's office not to answer her calls because they felt requests from her office should be handled in writing. Mutchler said her office has been busy handling these types of concerns.

"Now that we have open government, we actually have a lot of work to do within that framework to see the actual results," said Mutchler. "I think there has to be a better balance struck."

A balance that, she said, would make open government in Pennsylvania a priority.

Open Records Resources

* For a "citizen's guide" with information about how to use the law, go to:
https://www.dced.state.pa.us/public/oor/rtkcitizensguidefinal.pdf

For a link to a generic form needed to file a request, go to:
https://www.dced.state.pa.us/public/oor/Form-Uniform_Request.pdf

For a list of open records contacts in local government agencies across the state, go to:
https://www.dced.state.pa.us/public/oor/orolist.pdf

For a list of open records contacts in state agencies, go to:
https://www.dced.state.pa.us/public/oor/aoroList.pdf

For a list of open records contacts in school districts, go to:
https://www.dced.state.pa.us/public/oor/orolist_sd.pdf

Rendell: Open Records? Did I Say That?

From citypaper.net. The Inquirer article is below.

So here's another farcical law enacted to much hoopla and then studiously ignored leaving the people it's supposed to serve with supersized helpings of nada and zilch.

Pa. agencies ignore open records laws
Friday, April 10th, 2009 at 12:00 pm
posted by Isaiah Thompson
categories State Politicians Screwing Philly, State Politics

Today, the Inky reports on a rift between the governor's office and Office of Open Records czar Terry Mutchler. The Inky says that Mutchler wrote a three-page letter to Governor Ed Rendell's office:

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."

In this spirit of his boss, Rendell spokesman Chuck Ardo defends the governor's apparent disinterest in implementing the open records laws he helped create by side-stepping reality with cheerful blather. Says Ardo:

"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."

"No precedent," huh? Actually, there are plenty of precedents. Floridsa, where I worked as a reporter, has excellent public records laws.

In 2002, a report by the Investigative Reporters and Editors compared states based on the "open-ness" of their open records laws. Pennsylvania ranked 48th, tying with Alaska. It's not like Pa. is on the cutting edge — I'd say we've got plenty of "precedent," to follow, wouldn't you? In the entire Union, only Alabama and South Dakota were found to have less transparent policies.

This Office of Open Records was supposed to change that. Let's see that it does, Ed.

-----------------------------------------------------------------------------

From the Inquirer

Pa.'s public-records czar faults Rendell on openness
By Angela Couloumbis
Inquirer Harrisburg Bureau Posted on Fri, Apr. 10, 2009

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."


'Speaks for itself'

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.


DEP's explanation

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."

Right to know ruling update

From the Pennsylvania Newspapers Association blog comes an update on the right to know law.

Wednesday, April 1, 2009
Office of Open Records Issues Damaging Decision
In Ford v. Northampton Area School District, AP 2009-0123, the Office of Open Records (OOR) has dealt a blow to open government, apparently finding that a budget discussion among a quorum of a school board was not "deliberation" for Right to Know Law purposes because it was, in the words of the OOR, an "informal" discussion. If this decision stands, it could have terrible repercussions for the public's right to know.

In Ford v. Northampton Area School District, AP 2009-0123, William Ford, a reporter for The Morning Call (Allentown) requested copies of a budget proposal that the Northampton School Board had discussed at a public meeting. The Board provided the draft budget, but redacted dollar figures from the document. Ford argued that the entire budget proposal was a public record under the new Right to Know Law, and we agree.

The School Board argued that exemption 708(b)(10) of the Right to Know Law allowed it to redact the budget figures. That section allows agencies to withhold certain internal, predecisional, deliberative documents from the public. It provides, however, that the exemption does not apply to documents presented to a quorum of an agency for deliberation at a public meeting. In other words, documents that are in a school board's "board packet" become presumptively public when they are presented to a quorum of the school board for the purpose of public discussion. There are limited exceptions to this rule, but none are relevant here.

The OOR agreed that the Right to Know law does not protect a record that is submitted to a quorum for deliberations at a public meeting. It found, however, that the draft budget was not presented to a quorum for "deliberation." According to the OOR, the budget discussion was informational and therefore the School District could redact the budget figures. In reaching this conclusion, it emphasized that the board did not make any decisions regarding the budget at the meeting in question.

This analysis is not only incorrect as a matter of law, it is incredibly damaging to the public's right to know - and threatens to set us back over 20 years, to a time when the Sunshine Act allowed agencies to hold many discussions behind closed doors.

It's worth taking a look at the history of the Sunshine Act. As originally adopted, Pennsylvania's Sunshine Act required government agencies to hold open meetings only when they were voting or taking official action. Not surprisingly, this meant that many agencies held their meaningful discussions and debates behind closed doors, only letting the public in when it was time for the final vote. As a result, the public knew "what" the agency had decided, but nothing about "why" a particular decision was reached.

In 1987, the law was amended to rectify this. As a result, today's Sunshine Act not only requires agencies to take all official action in public, it also requires them to deliberate most matters in public (there are limited exceptions for personnel, litigation, and certain other topics). "Deliberation" is defined as "the discussion of agency business held for the purpose of making a decision."

Since the 1987 amendments, there has been much debate and discussion about what constitutes "deliberation," and the Pennsylvania Courts have weighed in on a number of occasions. One thing is clear, though, that a decision doesn't have to be imminent for an agency discussion to constitute "deliberation." See Ackerman v. Upper Mt. Bethel Township, 567 A.2d 1116 (Pa. Cmwlth. 1989), where the Court found that a private conference among three members of a township board of supervisors concerning an amendment to a zoning ordinance was "deliberation" of agency business, even though no official action was expected to be taken.

Agencies sometimes point to language in court decisions to support their argument that board members may informally discuss matters without violating the Sunshine Act. See, e.g., Conners v. West Greene School Dist., 569 A.2d 978 (Pa. Cmwlth. 1989), appeal denied, 581 A.2d 574 (Pa. 1990)(Reference in newspaper that several board members apparently discussed a budget issue during a meeting recess not sufficient to find a Sunshine Act violation). It is critical to understand these cases in context, however. In Conners, for example, there was no actual evidence that budget issues were discussed during the recess. Just as significantly, there was no allegation or evidence that a quorum of the board was involved in the alleged discussions.

The Sunshine Act requires agencies to deliberate most issues at an open, advertised meeting. The "Board packet" provision in the Right to Know Law was intended to allow the public to "follow along" with these public discussions, by allowing interested citizens access to records that are being discussed by a board at an open meeting. Having access to records, as well as meetings, is the only way for community members to understand and participate in their government.

In Ford, there is no dispute that a quorum was present, that the budget proposal had been presented to a quorum, and that the proposal was discussed at a public meeting subject to the Sunshine Act. If the OOR intends to redefine "deliberation" to exclude budget discussions that occur prior to a final budget vote, we should all be very concerned. For that "definition," if adopted by local government, could mean that none of the budget discussions (until the final vote) have to occur in public. We've already been down that road -- and it was a disaster. Let's not head that way again.

We recognize that the OOR does not have jurisdiction over Sunshine Act disputes, but we urge it to reconsider its definition of "deliberation" in the Right to Know context, and to protect and preserve the public's right to know.

More right to know updates

From the BCCT.

The pendulum swings wildly as the new law gets tested. Who knew that those homemade tapes of school board meetings are now part of the open records law and can be requested by others?

Open records law fuels spats with municipalities
By AMANDA PALLESCHI
The Associated Press

Every community has one: the gadfly, the complainer, the curmudgeon. The concerned citizen with a comment at the ready for the most ordinary of agenda items, pen in pocket for scouring budgets line by line to account for every dollar.

They are there to keep local government honest, with help from the state's new Right to Know Law that took effect in January.

But some municipalities are starting to complain that the law is miring them in paper work and creating logistical and financial headaches.

State and county agencies have set up offices and created positions to deal with requests under the new law. Borough feuds such as the 25-year battle that Jim Kilgore has waged against the Franklintown Borough Council in northern York County are testing how the law is working.

And Kilgore isn't just an interested citizen. He's a member of Borough Council.

"Municipal government touches residents in their everyday lives more than we do," said Joanne Burkhart, the open-records officer for Cumberland County. "They have more requests than we do."

Kilgore has made 16 requests since the law was enacted, and 11 replies were due to him by last week. The law allows five business days for replies, but the borough requested the maximum 30-day extension.

His requests ran the gamut of his gripes in the 25 years he's lived in the borough. How much is the borough secretary making? How much does the borough owe in liability insurance on a public park? What did the letter of complaint about him, read aloud at the last meeting, say?

"Things look and smell funny in this borough. That's all I really want to say," Kilgore said.

Dick Blouch, the Franklintown council president, estimated that Kilgore's requests will cost the borough $1,000 for certified mail and lawyer and administrative fees.

Governments of all sizes, even in small municipalities such as Franklintown, had better get used to it, said Matt Brouillette, the CEO of the Commonwealth Foundation, a Harrisburg-based nonprofit think tank that develops and promotes public policies.

"This is a new day in Pennsylvania where government is going to be more open and transparent. I don't have any sympathy for government," he said. "Go cry to somebody else. Don't cry to taxpayers and citizens."

Kilgore is serving a two-year term on the Borough Council after losing the election for a four-year term in 2007. But his involvement with its agendas and politics goes back years.

It all started with the trees, he said. In 1999, Kilgore collected the signatures of 31 borough residents unhappy with trees that the borough had planted along the sidewalks in front of their houses. The petition requested that the borough replace the sidewalks because the trees' roots were starting to break up the concrete. The borough eventually took care of the trees.

Kilgore also has complained about tax increases, a neighbor burning trash and a council member who Kilgore said made a racist remark at a gas station in town. Kilgore even was accused of lunging at borough secretary Deb Walker and threatening her during a heated discussion of the sanitation budget, and he was cited with disorderly conduct.

Blouch said Kilgore is not a new problem for the 532-resident borough with a $156,000 yearly budget. But he's escalated things recently.

"It paralyzes the function and the operation of the borough," Blouch said, noting that Walker has had to spend much of her day in the borough office on Baltimore Street searching for and collating Kilgore's requests.

"He's always been after records. It could be because he retired, so he has more time," Walker said.

While Kilgore and others like him might have long been filing requests, it is now more difficult for local governments to ignore them, said Barry Fox, the deputy director of open records for the state. His office held seminars to educate local government officials on the law before it went into effect Jan. 1.

Before then, Pennsylvania's Right to Know Law was known as one of the least transparent in the country. Now, Fox said, he sees appeals come into his office frequently from those who have been ignored _ 97 in January and February.

It all comes with the territory of more government transparency, he said. He's also seen municipal officials _ who know they have residents like Kilgore _ begin to squirm.

"These citizens exist in every municipality ... these gadflies ... We get asked a lot if they are going to come out of the woodwork now," Fox said.

Gary Berresford, the borough manager in Wormleysburg, has worried that his borough's longtime agitator will begin inundating the office with requests under the new law. That person has asked for the same documents repeatedly, Berresford said.

"It's not that they want those records _ it's that they want to harass the people to get those records," Berresford said. "They are unhappy with the borough, and they are asking for things they don't even need."

But borough councils can use the open-records law to their advantage, too.

Kilgore taped Franklintown's most recent meeting Feb. 4. The council vice president served an open-records request on behalf of six residents for Kilgore's tape. Such tapes were exempt under the state's previous Right to Know Law, but they recently were ruled fair game for such requests.

Kilgore is still waiting for his five most recent requests. He's also waiting to see whether they will help him keep his municipality on its toes.

"I used to ask about a budget and get served up some sort of legal goodie," he said.

And now?

It took the full 30 days, but Walker mailed Kilgore an itemized list of answers to his first 11 requests, with eight pages of enclosed copies of treasurer's bonds and contact information for the borough's waste management service.

Kilgore's not satisfied, he said. He said he can't read the sanitation budget. Now he's waiting eagerly for replies to his remaining five requests.

If he's still not happy with the responses, there's always the appeals process.

Right to Know Law Update

The first group of rulings on records sought under the new law have been made. The York Daily Record has a great website that covers the new PA State Right to Know law.

The Office of Open Records also has their website where rulings and final determinations made will be posted.

Right to Know Exceptions

From the BCCT

Pa. Right-to-Know law contains 30 exceptions

By The Associated Press
The Associated Press

Pennsylvania's new Right-to-Know Law contains exceptions for 30 categories of records. Most do not apply to financial records or aggregated data, such as spreadsheets and databases. A summary of the exceptions:

1. LOSS OF FUNDS/PERSONAL SECURITY: Records that, if disclosed, would result in the loss of federal or state funds. Also, records whose release would be reasonably likely to result in substantial and demonstrable risk of physical harm to a person or to his or her personal security.

2. PUBLIC SAFETY: Records that, if disclosed, would be reasonably likely to jeopardize homeland security or public safety or preparedness.

3. INFRASTRUCTURE SECURITY: Records that, if disclosed, would be reasonably likely to endanger the safety or security of a building, public utility, infrastructure or information storage system.

4. COMPUTER SECURITY: Records that, if disclosed, would be reasonably likely to jeopardize computer security.

5. HEALTH RECORDS: Medical, psychological and related records that contain individually identifiable health information.

6. PERSONAL IDENTIFICATION: Records containing all or part of a person's Social Security number; driver's license number, personal financial information; home, cellular or personal telephone numbers; personal e-mail addresses; employee numbers or other confidential personal identification numbers; a spouse's name, marital status, beneficiary or dependent information. Also, records containing home addresses of law-enforcement officers and judges.

7. PERSONNEL RECORDS: Letters of reference or recommendation, unless they involve an appointment to fill a vacancy in an elected office or an appointed office that requires confirmation by the state Senate.

Also, performance ratings or reviews; academic transcripts; state civil-service test results and certain local test results; applications of job applicants who are not hired; workplace support services information; written criticism about a public employee; grievance material; information about discipline, demotion or discharge contained in a personnel file, unless it involves final action by an agency that results in demotion or discharge.

8. COLLECTIVE BARGAINING: Records related to collective-bargaining strategy or negotiations, and exhibits and transcripts in arbitration cases involving collective-bargaining disputes or grievances. Final contracts and arbitration awards are public.

9. DRAFTS: Drafts of bills, resolutions, regulations, policies, management directives and ordinances.

10. DELIBERATIONS: Records reflecting internal, predecisional deliberations of agencies, such as a budget recommendation, a legislative proposal or the strategy for winning approval of such proposals.

(Records requesting state funding or grants or the results of public-opinion polls are public. Also public are documents that are presented to a quorum of a public board for deliberation , such as the packets board members routinely receive , so long as they are not otherwise exempt under the law.)

11. TRADE SECRETS: Records that reveal trade secrets or other confidential proprietary information.

12. WORKING PAPERS: Notes and working papers used by a public official or employee strictly for personal use, such as message or routing slips.

13. DONATIONS: Records revealing the identity of a person who makes a donation to an agency, unless the donation is intended to provide remuneration or other tangible benefit to a public official or employee.

14. UNPUBLISHED ACADEMIC PAPERS: Unpublished lecture notes, manuscripts, articles, creative works, research material and scholarly correspondence related to a community college or state-owned university.

15. ACADEMIC TRANSCRIPTS: Academic transcripts; examinations; examination questions and answers; and examination scoring keys used by schools and licensing agencies.

16. CRIMINAL INVESTIGATIVE RECORDS: Records related to or resulting in a criminal investigation. (Police blotters, private criminal complaints and traffic reports are public.)

17. NON-CRIMINAL INVESTIGATIVE RECORDS: Records related to non-criminal investigations, including complaints submitted to agencies, work papers underlying an audit and records that reveal the identities of confidential sources. (Records of civil fines or penalties, settlement agreements, license revocations or similar decisional documents are public.)

18. 911 CALLS: Recordings and transcripts of 911 calls, although an agency or court may release these if deemed to be in the public's interest. Time-response logs are public.

19. DNA & RNA: Records containing DNA & RNA information.

20. AUTOPSIES: Contents of autopsy report, except for the victim's name, cause of death and manner of death.

21. MINUTES: Draft minutes of any public meeting until the next scheduled meeting of the agency. Any records of private, executive-session discussions.

22. APPRAISALS & REVIEWS: Records involving real-estate appraisals, engineering estimates, environmental reviews, audits and other evaluations involving a potential agency lease, acquisition or disposal of real property. Exception ends when a final decision is made.

23. LIBRARY & ARCHIVE USERS: The circulation and order records of an identifiable individual or group.

24. LIBRARY & MUSEUM DONORS: Rare books, documents and other materials contributed by gifts, grants or bequests to the extent imposed as a condition by the donor.

25. ENDANGERED SITES & SPECIES: Records identifying the location of an archaeological site or endangered plant or animal species not already known to the public.

26. CONTRACT BIDS: Proposals for the procurement or disposal of supplies, services or construction before the award of a contract or the opening and rejection of all bids. Also, certain financial information about the bidders.

27. INSURANCE: Records of communication between an agency and its insurance carrier, administration service organization or risk-management office. (Contracts between agencies and these entities are public.)

28. SOCIAL SERVICES: Records identifying people who apply for or receive social services, or disclosing the services they receive and other personal information.

29. CONSTITUENTS: Correspondence between state legislators and their constituents, and accompanying records that identify constituents who request assistance or other services. (Correspondence between lawmakers and lobbyists is public.)

30. MINORS: Records containing the name, home address or date of birth of child who is 17 or younger.

Right to Know Q and A

From the BCCT

How to file a Right-to-Know request under Pa. law

By The Associated Press
The Associated Press

Common questions and answers about how to file a request under Pennsylvania's new Right-to-Know Law:

Q: How do I request a record from a local, county or state agency?

A: You may make the request in person, by mail, fax or e-mail. You may make the request verbally, but to preserve your right to appeal a negative decision, you must put it in writing.

A standard request form can be downloaded from the state Office of Open Records Web site , http://openrecords.state.pa.us , and printed. Local agencies may use their own forms, but also must accept this one.

Your request must be specific enough for the agency to understand what record you want. Officials may need to ask you questions to fulfill your request, but the law bars them from requiring you to explain why you want the record.

Q: How soon can I expect a response?

A: Agencies are required to respond promptly within five business days. They may grant or deny your request in that time, or under certain circumstances , if a request is extensive, for example, or a record contains nonpublic information that must be blacked out, or redacted , may advise you that it will take as much as 30 additional days to produce the records.

Q: How far back in time may I go in requesting records?

A: All records in the possession of an agency are covered by the law, no matter how old they are.

Q: Will I have to pay anything for these records?

A: Under a fee schedule established by the state Office of Open Records, agencies may charge as much as 25 cents per page for photocopying. The fee schedule bars additional charges for the cost of retrieving or redacting records, although they may charge you the actual cost of reproducing blueprints and certain other specialized documents.

Q: Can agencies require me to pay in advance?

A: Only if the total bill is expected to exceed $100.

Q: What if my request is turned down or ignored?

If the agency fails to respond in five business days, your request is deemed denied. In that event, or if the agency denies the request within the period, you have 15 business days to file an appeal to the Office of Open Records.

Judicial agencies, ranging from district judges to the state Supreme Court; legislative agencies; the statewide row offices (attorney general, auditor general and treasurer) are allowed to designate their own appeals officers in place of the Office of Open Records. District attorneys may appoint officers to hear appeals related to criminal investigative records of local agencies.

Further appeals may be pursued in court by either side. Appeals involving state agency denials would be filed in Commonwealth Court, and appeals involving local agencies would be filed in county common-pleas court.

Q: What are the penalties for violating the Right-to-Know Law?

A: Public agencies found by a court to have denied access to records in bad faith face a civil fine of as much as $1,500. Agencies or officials that do not promptly comply with a court order can be fined as much as $500 a day until the records are provided.

Right to Know, Part III

From the BCCT.

Private business under scrutiny
By MARK SCOLFORO
ASSOCIATED PRESS

Part 3 of 5/Read Part 4 Friday

HARRISBURG — Private businesses that do business with state and local governments in Pennsylvania are about to find themselves having to make some records available to the public.

But there are signs that many of those contractors are unaware of the provision in the new Right-to-Know Law, and experts are debating just how it will apply — a dispute that may end up being resolved by the courts.

One such group consists of the hundreds of school bus contractors, who provide about 85 percent of student transportation for the state’s 501 school districts.

Pennsylvania School Bus Association Executive Director Selina Pittenger said she hasn’t fielded questions from members about the new law.

“They’re probably thinking, ‘We’ve already been under the microscope,’ ” Pittenger said.

Terry Mutchler, director of the state Office of Open Records, said there’s a “very solid legal question” as to whether, for example, the resume of a school bus contractor’s driver would be a public record.

“If you have a bus driver that’s fired for child molestation or whatever criminal act it is, I think that there is a very strong public policy argument that the public should be made aware,” Mutchler said. “The reality is, we’re going to see a lot of litigation over very astute questions just like that.”

Major state agencies and officials with Pennsylvania townships and boroughs also said the contractor issue has barely registered on their radar screens, although that may change once the new law takes effect next month.

For county governments, the most significant third-party contracts likely to be affected involve nursing homes, mental health services and similar functions, said Doug Hill, executive director of the County Commissioners Association of Pennsylvania.

The trade group is advising county governments to review their existing contracts to see if they need to be revised in light of the additional reporting duties the new law requires, Hill said.

A lawyer for the Pennsylvania School Boards Association who has researched the issue argues there may be very few — if any — documents that fit the new law.

It lets anyone obtain contractor records directly related to a governmental function the contractor has performed for a state or local agency. The records would be obtained through the agency, not directly from the contractor.

PSBA lawyer Emily Leader said the problem is that the law doesn’t define “government function.” She believes, for example, that a paving company filling potholes on a township road or a bus company driving students to school wouldn’t necessarily fit the bill.

Governments are restricted by the state Constitution in what powers they can delegate, Leader said.

The state Supreme Court, in a 2003 decision, grappled with the relationship between a governmental body and an outside vendor. In that case, the justices ordered that the records be made public.

Even though the Westmoreland County Housing Authority allowed its insurer to completely handle the legal defense and negotiate terms of a confidential settlement in a federal gender discrimination lawsuit, it lost the case and had to give the Tribune-Review Publishing Co. a copy of a settlement agreement.

Clouding the issue is a 1997 state Supreme Court decision that said Millersville and West Chester universities, while state agencies subject to the Right-to-Know Law, didn’t have to provide a textbook seller with a list of course material. The state’s high court reasoned that the universities had no part in ordering or selling textbooks and did not solicit, compile or retain information on course materials.

Leader believes it’s significant that the new law refers to governmental functions rather than simply contracts. She considers it unbroken legal ground that the courts might have to plow.

Pennsylvania Newspaper Association lawyer Teri Henning, on the other hand, believes the intent of the law is straightforward.

Determining what qualifies, she said, involves looking at what role the contractor is playing, how it relates to the operations of government and whether it has previously been performed by governments.

“A lot of government functions are being outsourced by government agencies,” Henning said. “They are certainly entitled to do that if it makes more sense from an economic or efficiency standpoint. But it should not mean these records should be shielded from public view.”

Right to Know, Part II

Part 2 of the BCCT Right to Know law series.

Director vows to err on side of openness
By PETER JACKSON

HARRISBURG — In high school, Terry Mutchler’s tenacity could be measured in broken field-hockey sticks, including the time she broke her wooden stick in the heat of a game and had to use one belonging to her coach.

“She broke that one,” too, recalled her mother, Star Mutchler. But she broke it scoring the winning goal for her team.

Mutchler will need all the toughness she can muster as she leads the implementation of Pennsylvania’s new Right-to-Know Law, which takes effect Jan. 1.

“She’s a go-getter and she speaks what she thinks is right,” Star Mutchler, 78, said of her 42-year-old daughter during a telephone interview from her Stroudsburg home. Already, Mutchler has dis- played a willingness to break ranks with her boss, Gov. Ed Rendell, on politically hot issues.

For example, she advocated the disclosure of confidential lists of legislators picked by party leaders to share hundreds of millions of dollars a year for pet projects in their districts. She also called for barring public agencies from charging extra for the labor involved in redacting nonpublic information from public records.

On both sides of the open records debate, Mutchler has impressed people with her energy, work ethic and grasp of the legal complexities that confront her fledgling Office of Open Records.

“She sees both what the agencies’ concerns and issues are [and] she knows what the reporters [want],” said Elam Herr, director of the Pennsylvania State Association of Township Supervisors, which speaks for 1,455 townships.

Craig Staudenmaier, a Harrisburg lawyer who specializes in media law, called Mutchler “fair-minded but steadfast, in that what’s public is public and what’s not is not.”

Passionate, intense and no nonsense, Mutchler has firm ideas about her new job. She tells people in government and in the news media that her office will evenly enforce the law but makes clear she will err on the side of openness and won’t tolerate attempts to end-run the new requirements.

“I genuinely believe that this government does not belong to the government. It belongs to citizens,” she said in an interview earlier this month. “And it irks me when a citizen comes to the very thing it owns and is denied access to it. There’s just something fundamentally wrong about that.

“Somewhere along the line, we have forgotten the servant in public servant,” she said.

A Monroe County native, Mutchler is the youngest of seven children. Her father, a retired Army sergeant who was a World War II veteran, died several years ago.

She harbored a childhood dream of becoming a lawyer. But after working as a reporter for her high school paper and then at The Daily Collegian at Penn State University, she wound up with a bachelor’s degree in journalism.

She worked at The Morning Call in Allentown for a couple of years, then was hired by The Associated Press at its Capitol bureau in Harrisburg. She worked for the news cooperative for six years, including stints at bureaus in Atlantic City, Illinois and Alaska.

In Springfield, shortly after she took over the Illinois statehouse bureau in 1993, Mutchler’s professional and personal lives intersected in a way that changed her career path. Mutchler fell in love with a state senator, the late Penny Severns, the Democratic whip who would be nominated for lieutenant governor in 1994.

Increasingly troubled over the ethical conflict created by the relationship, Mutchler transferred to AP Alaska shortly before the election, which the Democrats lost. In 1995, she left the AP and returned to Springfield to work as Severns’ spokeswoman and speechwriter until she died of breast cancer in 1998.

Mutchler earned her law degree in 1999 at Chicago’s John Marshall Law School. She was a litigation attorney in Chicago when she was lured back to Springfield in 2003 for a job in the attorney general’s office helping settle open-records disputes.

Mutchler and her partner, Maria Papacostaki, a professor and poet, rent a home in Delaware County while Mutchler continues trying to sell her home in Springfield. She receives a $120,000 salary and a state-owned car.
Question

Q: What is the Pennsylvania Office of Open Records?
A: It is a new agency in the executive branch of state government, part of the Department of Community and Economic Development. The agency’s first director is Terry Mutchler, a reporter-turned-lawyer who previously worked in a similar position under the Illinois attorney general. The 10-person staff will include six lawyers besides Mutchler.

Generally speaking, the office will decide appeals by people whose Right-to-Know Law requests have been rejected by state executive agencies or by county and local agencies. It also will provide training for those agencies and issue advisory opinions interpreting the law.

Pennsylvania Right to Know Law

The BCCT is beginning a series on the new Pennsylvania Right to Know Law.

Who are the Morrisville contacts?

For the borough: George Mount, borough manager
For the school district: Paul DeAngelo, business administrator

Considering the secrecy that the Emperor and the board of chosen accomplices has employed over the past year of amazing cosmic power, I'm expecting Mr. DeAngelo's waiting room to be a bit too small to accommodate the number of people wanting answers.

The school district has a link right on the home page. I did not see one on the borough webpage.

New law makes secrecy more difficult
Seeking records used to mean proving why they should be released; now the government must prove why they shouldn’t.
By PETER JACKSON

HARRISBURG — PennDOT’s list of dangerous roads and intersections is an official secret, shielded from the public because of loopholes in the state’s Right-to-Know Law.

In 2006, a Commonwealth Court panel upheld PennDOT’s refusal to turn over a partial list to a Pittsburgh television station. The court said the station had failed to prove the information was sufficiently connected to an account, contract, voucher or decision — categories in the law that define what is a public record.

“The situation is a Catch-22 for requesters, in that the agencies and courts hold them to an impossible standard — prove there is a connection, but you cannot have the records that will enable you to do so,” said Gayle Sproul, a media lawyer who represented Hearst-Argyle Television Stations, WTAE’s owner, in the case.

Public-access advocates hope that widely shared frustration will subside after Jan. 1, when an overhaul of the state’s Right-to-Know Law takes effect. The changes are expected to dramatically expand what people can find out about what goes on behind the scenes of the state and local governments.

The new Right-to-Know Law will repeal the 52-year-old original, long regarded as one of the nation’s weakest.

No longer will you, journalists or activists interested in mining government records have to cross their fingers and hope the document they want fits into one of a half-dozen narrow categories. Nor will they have to hire a lawyer and go to court to challenge an agency’s refusal to turn over a record.

The new law is built on the presumption that most government records are open — the opposite presumption of the current law. It also places on public agencies — from state bureaucracies to county governments and local school districts — the legal burden of showing why a record should be withheld, instead of forcing requesters to establish why it should be made public.

“This is really a change in the culture of governance in Pennsylvania,” said Barry Kauffman, director of Pennsylvania Common Cause. “In too many cases, employees and officials of government agencies had an attitude that they own the government records instead of just being the caretakers of the government records.”

In most case, those whose requests are denied will be able to appeal directly to a new, nonjudicial agency — the Office of Open Records — whose director has a track record as an advocate of public access.

Teri Henning, general counsel for the Pennsylvania Newspaper Association, which spearheaded lobbying for the new law, said the hope “is that, over time, these fundamental changes will create a culture of openness in Pennsylvania government.”

That spirit of openness is tempered in the law by a list of 30 wide-ranging exceptions that are tailored to respond to such concerns as personal privacy, public safety and internal deliberations by public officials.

The exceptions, which make up about one-fifth of the law, are “very wordy, very detailed and dense, filled with what I will call, kindly, mumbo jumbo,” said Sproul, who’s also president of the Pennsylvania Freedom of Information Coalition. “That in itself is an impediment to getting public records.”

The law also expands access to government contracts: Private businesses that do business with state and local governments are required to make some records available to the public. It covers all of state government, including — to a limited extent — the Legislature and the state’s judicial system, both previously exempt.

It covers an array of state affiliated entities including community colleges, the 14 state owned universities in the State System of Higher Education and the Pennsylvania Interscholastic Athletic Association. The state related universities — Penn State, Pittsburgh, Temple and Lincoln — are generally exempt, but required to issue annual financial reports that include their highest 25 employee salaries.

Local agencies covered by the law include counties, boroughs, townships and school districts, as well as charter schools, vocational schools and intermediate units.

By now, every agency should have designated an open-records officer to oversee compliance, adopted a policy for managing its records and briefed employees on how to handle records requests.

No one is predicting a flawless implementation.

“There’s going to be confusion at the beginning ... from citizens, from public officials and from members of the media,” said Terry Mutchler, the lawyer and former reporter that Gov. Ed Rendell appointed to a six-year term as director of the openrecords office.

Many observers predict a spike in records requests — and appeals to Mutchler’s office — in early 2009 as Pennsylvanians test their access under the new law. That will likely be followed by a gradual return to a more normal pace.

“After five years, we’ll forget it was ever such a big deal,” said Emily Leader, a lawyer for the Pennsylvania School Boards Association, which speaks for the state’s 501 school districts.

Mutchler, who’s hiring six staff lawyers to help her handle the expected deluge of appeals, has been working with associations representing county commissioners, township supervisors and school boards — as well as newspapers. At some sessions, concerns were expressed about the status of e-mails.

The new law defines a record as “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency.” That includes not only e-mails, but audio recordings, photos and even films.

“Here’s the e-mail training,” Mutchler told a Pennsylvania School Boards Association workshop in October. “If you don’t want to read it on Page One, don’t put it in e-mail. If you’re sending an e-mail, envision it on letterhead.”

Access advocates hope the new law will open records like PennDOT’s hazardous-sites list to public scrutiny.

PennDOT spokesman Rich Kirkpatrick said the lists are kept confidential because the rankings can be misleading and state law bars such information from being used in legal claims against the state.

Asked if PennDOT plans to withhold the information after the new law takes effect, he said, “I can’t speculate.”