Office orders agency to send document copies to developer

BY JAN MURPHY
Of The Patriot-News

The state's new Office of Open Records has been open four months and already it has received 278 requests for help in resolving disputes over what constitutes a government record.

So far, the office has issued decisions in 75 of those disputes involving such entities as fire companies, school districts, parking authorities and two dozen state agencies. Three of those decisions were appealed to county courts.

One recent decision could become one of the first court tests of the revised Right to Know Law and could be of interest to anyone who doesn't want to travel far to review government records.

The law -- aimed at making government more transparent -- was signed last year by Gov. Ed Rendell and took full effect on Jan. 1.

The Office of Open Records issued a decision last week in a dispute over a Berks County real estate developer's request for water and sewer records from the state Department of Environmental Protection. Appeals officer Lucinda Glinn ordered the department to copy and mail the requested records, after receiving payment of applicable fees, to E. Michael Zubey, a Wyomissing lawyer. Zubey was representing real estate developer GSP Management Co. of Morgantown, which had sought the records.

Department spokeswoman Teresa Candori said the Rendell administration plans to appeal that order to Commonwealth Court.

The department had wanted the developer to travel to either a regional office to make copies or hire a copying service.

The request involved copying about 3,500 pages and the department doesn't have the personnel to handle voluminous records request, Candori said. The department has made copies of requested records involving fewer than 50 pages, but technically it was not required to do so, she said.

Open Records office Executive Director Terry Mutchler said the DEP's interpretation of the law is disturbing.

"Just because you could make that argument, even if I agreed with that, why would you?" Mutchler said. "You either are pro-open government or you're not. You are either going to use this law as a tool to provide access to the people who own this government or you are going to use it, as you easily can, as a shield."

Rendell spokesman Chuck Ardo said going to court will help clarify future issues.

"I think establishing what is reasonable is important to the future of this piece of legislation," Ardo said.

Senate Majority Leader Dominic Pileggi, R-Delaware County, who sponsored the open-records legislation, said the DEP's position on this request contradicts the law's language and intent.

"It's hard to see how anyone at the Department of Environmental Protection could have even read part of the law to come to the conclusion that they weren't required to mail copies to people requesting copies to be mailed," Pileggi said. "I would hope that when the governor becomes aware of the position of the department that he weighs in on the side of openness."