By Jonathan D. Silver
Pittsburgh Post-Gazette

Terry Mutchler, executive director of the state Office of Open Records, has a quick response when asked how things are going.

" 'Busy' is the short answer," Ms. Mutchler said last week. "We're just overwhelmed."

Ms. Mutchler and her nine-member staff routinely work 12-hour days or longer to keep pace with a flood of paperwork.

To date, they have processed 1,006 appeals, conducted 300 training sessions around the state on the new Right-to-Know Law and fielded more than 5,000 e-mail and telephone inquiries.

The office's chief counsel also is responsible for overseeing the 84 appeals that have gone to court. As a result of the case load and a shortage of manpower, the office has become a "mini law firm."

"That is full-time legal work," Ms. Mutchler said. "I don't think the law anticipated the number of challenges."

Appointed by Gov. Ed Rendell in April 2008, the 43-year-old lawyer and former reporter makes $120,000 a year ensuring that the open-records law is upheld. She discussed current hot topics for the office in a wide-ranging interview with the Pittsburgh Post-Gazette.

Home addresses

Under the law, the only home addresses that are not public are those of judges, law enforcement officers, minors and those who can prove their security is at risk.

In July, Commonwealth Court Senior Judge Rochelle S. Friedman issued a preliminary injunction blocking the release of public school employees' home addresses in response to a request by the Pennsylvania State Education Association, the teachers' union.

The open records office, which finds no constitutional right to the privacy of home addresses, has filed an appeal with the state Supreme Court to determine whether Commonwealth Court has standing to hear the matter.

Until the issue is decided, Ms. Mutchler has expanded the judge's order to temporarily include all public employees, angering open-records advocates such as Simon Campbell, 42, of Bucks County.

Mr. Campbell argues that Ms. Mutchler is still allowing release of the home addresses of private-sector government contractors. He also believes she unilaterally expanded the judge's ruling without proper authority.

"... What is important is this issue goes to the core of the new law, which is every record is presumed to be a public record," he said. "Either we believe in the presumption of the new law or we start trying to second-guess it."

Ms. Mutchler said she broadened the injunction to be fair to everyone while the issue is sorted out in the courts. She said her office's position is "loud and clear," that the only exemptions are the ones listed in the law.

"We're applying this across the board as best we can," she said.

Deliberations before decisions

The contentious debate involves determining when certain government research and work product becomes public record.

Lawyers have clashed over the meaning of words such as "discussion" and "deliberate" in stating their cases.

"It's an exemption that allows for a lot of mischief. It says, in essence, 'You can find out what we've done, but you can't find out why we did it,' and I think both of those things are necessary," said Tim Potts, co-founder of Democracy Rising Pennsylvania, a nonprofit group that promotes trust, transparency and confidence in government.

Barry Kauffman, executive director of Common Cause Pennsylvania, has similar concerns.

"Carried to its worst extent, this approach would say that no research done by government employees is a public record, and that's clearly defiant of the intent of the law," said Mr. Kauffman, whose group also works to ensure open and honest government.

Ms. Mutchler knows the law is weak in this area.

"You could drive a truck through the pre-decisional deliberation exception ... Yes, it's a problem," Ms. Mutchler said. "There's a lot of reports that don't get released, and I think there is a big public policy issue that this exemption permits withholding."

Ms. Mutchler hopes to bring the issue to the Legislature's attention in January but cautions that all work product should not automatically be made public.

"There's a lot of pre-decisional work that is good to withhold," Ms. Mutchler said.

That said, she added, "It's a major issue that needs to be addressed and discussed."

Courts

The open records office cannot levy fines, and its decisions can be appealed to court. But that does not make the office a "paper tiger," Ms. Mutchler said.

Its strength comes from the fact that its decisions are binding, she said.

"It's no more toothless than any other administrative decision or a magisterial district judge or Court of Common Pleas that has the right of appeal," said state Senate Majority Leader Dominic Pileggi, R-Delaware, a leader of open-records reform.

There are weaknesses, though. Melissa Bevan Melewsky, media law counsel for the Pennsylvania Newspaper Association, said no standard procedure governs appeals of the office's decisions.

Some courts might treat a decision like a motion and allow only written arguments, while others might provide for calling witnesses and presenting evidence.

Also, Ms. Melewsky said, some courts treat appeals without regard to the open records office's decision.

"I think that's one of the dangers of having no standard of review. The courts can do whatever they want with it. Even though we don't always agree with the decisions that the Office of Open Records makes, we do believe [its] decision should be given deference by the courts," Ms. Melewsky said.

Ms. Mutchler agreed. She called it a "seminal" issue.

"We want the same deference as other agencies are given so the credibility and the legal weight of our opinion carries over time," Ms. Mutchler said.

Using a football analogy, she added, "We want the ruling on the field to stand unless there is an absolute abuse of discretion in our decision."