Citizens are driving open government
March 18, 2009
OPINION
By TERRY MUTCHLER
Executive Director, Pa. Office of Open Records
A seismic shift in open government rocked the Commonwealth of Pennsylvania at midnight on Jan. 1, 2009, and I am happy to report that the Keystone State has not yet crumbled, or even cracked, because of it.
Pennsylvania wrote itself out of the dark ages by repealing its half-century-old law that kept records secret — legally. With the new Right-to-Know Law, every record at every level of government is presumed open to citizens. No longer do citizens have to demonstrate why the record should be released, nor do they need to explain why they want the records.
The law also created the new Office of Open Records, which has binding authority in records disputes. A former AP reporter turned lawyer, I serve as its first executive director. The mission of my office is to apply the law fairly and evenly, without regard for who asked for the records or who holds the records. Simply put, the law is our client.
The law is only 10 weeks old but the Office of Open Records, with five staffers, is already overworked. We have nearly 200 pending appeals from citizens denied access to records by state and local agencies. On appeal, the office has ordered the release of previously denied salary records, elevator maintenance records, e-mails, police incident reports, certified payroll records, and construction plans. We also have conducted more than 110 trainings statewide on how the law works.
The mission of my office is to apply the law fairly and evenly, without regard for who asked for the records or who holds the records. Simply put, the law is our client.
As the nation celebrates Sunshine Week, I urge every legislature to create an Office of Open Records, a public access counselor or similar ombudsmanlike entity that has binding authority to help citizens reclaim access to their government. I encourage President Barack Obama to appoint a pro-open government advocate as executive director of the Office of Government Information Services established by the Openness Promotes Effectiveness in our National Government Act of 2007, (P.L. 110-175.)
Very few states in the nation have an entity with binding authority to review record disputes: Connecticut and Pennsylvania are among the leaders. Binding authority by an independent arbiter is the key to a vault of previously hidden records. Without binding authority, the deck is stacked against citizens.
Public bodies bank on the fact that a citizen will not go to court to force the release of records, and by default the status quo of "closedness" remains. Any person who can read can justify virtually any exemption under the law. What government officials can't sidestep as easily is an independent arbiter with power to force release of public records.
Appointed to a six-year term, I started building the Office of Open Records in June 2008. In a cubicle, I mapped out everything from office space to policy to hiring up to 10 staffers committed to the concept that citizens own this government. The most difficult strategic challenge has been to preserve my role as an independent arbiter of the Right-to-Know Law having been appointed by a governor whose administration often disagrees with my legal interpretation of what constitutes a public record, or disagrees with how the office should be created and run.
I drew heavily on my experience as Illinois' first public access counselor. I served under the attorney general in a state where the Freedom of Information Act has 66 exceptions, no penalties or fines for failure to comply and where the public access counselor had no binding authority to back my decisions, which is now being rewritten.
That experience helped me realize that there are extremes on both sides of the open-government equation that must be avoided for real open government to succeed. Candidly, there are citizens and members of the media who are convinced that all government officials are criminals. Equally plain spoken, government officials often view citizens and reporters as gadflies — menaces who simply block their ability to run their government kingdoms without having to account to anyone, much less the electorate.
Many people are under the mistaken view that government access laws are media-driven. That is false. This is a citizen-driven law. Of the pending appeals, fewer than 10 are from news organizations. The same holds true in other states: Illinois, Indiana, Connecticut, Florida and Texas to name a few.
State legislatures are loath to enact strong open-records laws, until there is public crisis that leaves no option. Pennsylvania changed its archaic law only after a sustained public outcry in the aftermath of a late-night pay raise for lawmakers, a government student loan agency refusing to release financial records outlining abuses, and a scandal involving funneling millions of taxpayer dollars for political purposes. Illinois of course is rewriting its anemic law in the aftermath of their most recent political crisis regarding former Gov. Blagojevich.
My hope is that all states will create an entity with binding authority to ensure citizens have access to the records of the government. Citizens own this government.
Terry Mutchler is executive director of the Pennsylvania Office of Open Records.
By TERRY MUTCHLER
Executive Director, Pa. Office of Open Records
A seismic shift in open government rocked the Commonwealth of Pennsylvania at midnight on Jan. 1, 2009, and I am happy to report that the Keystone State has not yet crumbled, or even cracked, because of it.
Pennsylvania wrote itself out of the dark ages by repealing its half-century-old law that kept records secret — legally. With the new Right-to-Know Law, every record at every level of government is presumed open to citizens. No longer do citizens have to demonstrate why the record should be released, nor do they need to explain why they want the records.
The law also created the new Office of Open Records, which has binding authority in records disputes. A former AP reporter turned lawyer, I serve as its first executive director. The mission of my office is to apply the law fairly and evenly, without regard for who asked for the records or who holds the records. Simply put, the law is our client.
The law is only 10 weeks old but the Office of Open Records, with five staffers, is already overworked. We have nearly 200 pending appeals from citizens denied access to records by state and local agencies. On appeal, the office has ordered the release of previously denied salary records, elevator maintenance records, e-mails, police incident reports, certified payroll records, and construction plans. We also have conducted more than 110 trainings statewide on how the law works.
The mission of my office is to apply the law fairly and evenly, without regard for who asked for the records or who holds the records. Simply put, the law is our client.
As the nation celebrates Sunshine Week, I urge every legislature to create an Office of Open Records, a public access counselor or similar ombudsmanlike entity that has binding authority to help citizens reclaim access to their government. I encourage President Barack Obama to appoint a pro-open government advocate as executive director of the Office of Government Information Services established by the Openness Promotes Effectiveness in our National Government Act of 2007, (P.L. 110-175.)
Very few states in the nation have an entity with binding authority to review record disputes: Connecticut and Pennsylvania are among the leaders. Binding authority by an independent arbiter is the key to a vault of previously hidden records. Without binding authority, the deck is stacked against citizens.
Public bodies bank on the fact that a citizen will not go to court to force the release of records, and by default the status quo of "closedness" remains. Any person who can read can justify virtually any exemption under the law. What government officials can't sidestep as easily is an independent arbiter with power to force release of public records.
Appointed to a six-year term, I started building the Office of Open Records in June 2008. In a cubicle, I mapped out everything from office space to policy to hiring up to 10 staffers committed to the concept that citizens own this government. The most difficult strategic challenge has been to preserve my role as an independent arbiter of the Right-to-Know Law having been appointed by a governor whose administration often disagrees with my legal interpretation of what constitutes a public record, or disagrees with how the office should be created and run.
I drew heavily on my experience as Illinois' first public access counselor. I served under the attorney general in a state where the Freedom of Information Act has 66 exceptions, no penalties or fines for failure to comply and where the public access counselor had no binding authority to back my decisions, which is now being rewritten.
That experience helped me realize that there are extremes on both sides of the open-government equation that must be avoided for real open government to succeed. Candidly, there are citizens and members of the media who are convinced that all government officials are criminals. Equally plain spoken, government officials often view citizens and reporters as gadflies — menaces who simply block their ability to run their government kingdoms without having to account to anyone, much less the electorate.
Many people are under the mistaken view that government access laws are media-driven. That is false. This is a citizen-driven law. Of the pending appeals, fewer than 10 are from news organizations. The same holds true in other states: Illinois, Indiana, Connecticut, Florida and Texas to name a few.
State legislatures are loath to enact strong open-records laws, until there is public crisis that leaves no option. Pennsylvania changed its archaic law only after a sustained public outcry in the aftermath of a late-night pay raise for lawmakers, a government student loan agency refusing to release financial records outlining abuses, and a scandal involving funneling millions of taxpayer dollars for political purposes. Illinois of course is rewriting its anemic law in the aftermath of their most recent political crisis regarding former Gov. Blagojevich.
My hope is that all states will create an entity with binding authority to ensure citizens have access to the records of the government. Citizens own this government.
Terry Mutchler is executive director of the Pennsylvania Office of Open Records.
