The executive director says in 269 decisions, there's only one she'd like a 'do-over' for

By John L. Micek
The Morning Call Harrisburg Bureau

One irony about Pennsylvania's Office of Open Records: It's weirdly difficult to find. The new state agency charged with resolving disputes over government transparency is at the end of a long and dim hallway in a building across the street from the Capitol. The only indication the office exists is a small sign at the hallway's entrance. Inside the Office of Open Records, however, another irony: Sunlight streams through large windows that take up most of one wall. It is hard to imagine a more vivid metaphor for the challenges facing the office and Terry Mutchler, its first executive director. The role: Reverse Pennsylvania's half-century old practice of making residents prove why they deserve access to government documents -- and not, as now mandated by the law that created the Office of Open Records, the other way around. ''It's a growing period for all of us,'' Mutchler said. ''It's the first time in 50 years that Pennsylvania has turned on the lights.'' A former journalist who once worked for The Morning Call, Mutchler in seven months has built an agency to educate the public and bureaucrats about the new reality and to police disputes over records requests. Mutchler came to a recent interview prepared. There are numbers -- lots of numbers. Some of them: As of June 30, Mutchler's office had made 269 decisions. In 89 cases, a government agency was told to provide the records. In 135 cases, the request was denied. Forty others were granted in part. Five were dismissed as not applicable. Mutchler's office has answered 2,400 phone calls and 1,200 e-mails, issued 50 letters and conducted 200 training sessions. Most appeals have come from private citizens, Mutchler said, contradicting the misconception that only journalists are interested in government documents. ''People want records. They want to know what is going on with their government,'' she said. ''People want accountability.'' The records office has a full-time staff of nine. Mutchler said she needs more people. ''The Legislature will have to decide what its true vision for the Office of Open Records is,'' she said, adding that her current staff can handle the volume of cases, but some of those personnel also have to do detailed preparation for court hearings and other legal proceedings. ''We're working 12- and 14-hour days,'' she said. ''You can't sustain that pace.'' Chuck Ardo, a spokesman for Gov. Ed Rendell, said the administration is sympathetic but with the state facing a $3.25 million deficit and no agreement on the 2009-2010 budget in sight, there isn't money. ''The governor is a very strong believer in openness and transparency,'' Ardo said. ''But that doesn't mean the Office of Open Records is immune from the budget crisis.'' As with any new agency, the office has had its share of growing pains. In April, Mutchler sent a letter to Rendell, venting over what she said was a lack of cooperation from the administration when it came to the release of documents. Rendell's office at the time downplayed the tiff, saying it had less to do with whether documents should be released and more to do with how they should be released. Mutchler last week said the dispute was resolved when Rendell reiterated his commitment to government openness and personally directed his Cabinet secretaries to cooperate with her office. ''He issued a memorandum,'' she said. ''If there's a close call, release the record.'' Ardo confirmed the action. Mutchler also has tales about strange things that have happened since the office was launched. One caller wanted to know which state policeman had used a stun gun on him as he was taken into custody. A local government official asked whether he could deny a records request because of a minor mistake on a request form. Mutchler -- nothing if not direct -- wasted little time setting the official straight. ''We are not a traditional government office,'' she said. ''Our job is to apply the law fairly. I [couldn't] care less about who asks for the record or who's holding it. The question is whether it's a public record.'' There also have been missteps and regrets. Mutchler says she'd like a do-over regarding a decision rejecting a Morning Call attempt to obtain unredacted copies of a budget document that the Northampton Area School Board discussed in February. Her office ruled in March that the school board acted properly when it whited out dollar figures from the proposed 2009-10 budget, finding that they were ''properly protected as pre-decisional deliberative information'' and did not have to be disclosed. Terri Henning, the general counsel for the Pennsylvania Newspaper Association, said at the time that the decision, which broadened the definition of what constitutes a public deliberation, was ''incorrect as a matter of law.'' ''This would be my mulligan,'' Mutchler said. ''Not because the legal conclusion was wrong, but because there is more than one legal conclusion. This is one where more cautionary language would have been helpful. But of the 519 [appeals], if I rethink one, then I'm in great shape.'' Now on her third career -- journalism and law (including a stint in the Clinton administration) were the first two -- Mutchler says her new position is ''one of the coolest jobs I have ever had.'' ''It's like going down a river without a map,'' Mutchler said. ''You get turned over a few times, but what a hell of a ride.''