Law allows director to strike down fees if found inappropriate

BY JAN MURPHY
Of The [Harrisburg] Patriot-News

Gov. Ed Rendell, who enacted the state's expanded open-records law with his signature, might be one of the first to violate it if state agencies follow a directive his office has issued.

The directive allows state agencies to charge "a reasonable fee" for searching and retrieving documents after the revised records law fully takes effect Jan. 1. It also allows agencies to charge for redacting nonpublic information from copies of requested government documents.

Read Management Directive 205.36

This runs contrary to a policy set by the state's Office of Open Records, which was charged with establishing rules on fees that the executive branch and county and local governments may charge. The open records office's policy does not allow fees for either retrieval or redaction.

The revamped law expands the number of agencies required to make records public and presumes records are public unless specifically exempted in the law.

Terry Mutchler, director of the open records office, said she has had several discussions with the Rendell administration about fees associated with records requests and that she is hopeful the administration will re-evaluate its policy.

"When you have a fee structure that allows agencies to charge for the cost of labor, it opens the door to abuse," Mutchler said.

If someone appealed a state agency's retrieval or redaction fee to the open records office, the law gives Mutchler the authority to decide if the fee is appropriate. Her decision can be appealed in court.

Rendell spokesman Chuck Ardo gave no indication the administration is backing off its position.

Barry Kauffman, executive director of Common Cause Pennsylvania, said a key goal of his group's efforts in lobbying for open-records law revisions was to ensure a redaction fee could not be assessed.

"It is essential that such a ban is retained," he said.

Erik Arneson, a spokesman for Senate Majority Leader Dominic Pileggi, R-Chester, who championed revisions to the open-records law, said the law clearly gives the open records office authority to determine when fees can be charged.

"The administration needs to comply with that decision," he said. To do otherwise "is a slap in the face of those who want more open government," he said.

The Senate, which like the state House of Representatives does not fall under the open records office's authority, established a policy that allowed a $1-per-page fee for redacting nonpublic information. But that policy includes a provision that if the open records office set the rate at a lesser fee, the lower rate would be honored.

Arneson said he sees a silver lining arising out of the conflict. There were initial concerns the open records office might not act independently of the executive branch because the governor hired Mutchler and the office is housed in the state Department of Community and Economic Development, which falls under the governor's jurisdiction.

"This is a very good sign," Arneson said. "The Office of Open Records needs to be both strong and independent for the new law to work."