Jan 17, 2015 6 min read

When Terry Mutchler was appointed to head the state’s groundbreaking Office of Open Records nearly seven years ago, the veteran journalist and lawyer found herself with only a cubicle and a copy of the rewritten “right-to-know” law.

Since then, she helped to build an office with a $2 million budget and 15 staffers who handled 12,000 open records appeals since the law’s new rules went into effect in January 2009.

Mutchler left her post Friday after not being reappointed to another six-year term by Gov. Tom Corbett, but she looked back at the office as “one of the hugest successes for transparency in government across the nation.”

While Mutchler called the law an unequivocal success, albeit with some warts, others think the lengthy review period is an opportunity for municipalities and school districts to stall in disseminating information to the public.

“Any time you try something new, you’re going to have to kick the tires to see what the issues are,” Mutchler said. “There were some issues and there continue to be issues.

“We saw a lot of shenanigans.”

To understand the power of the rules passed in 2008, Mutchler said one must first look back to before that time when all government records in Pennsylvania were presumed to be off-limits to the public unless proven otherwise by an inquiring citizen. The changes to the right-to-know law flipped that expectation, putting the onus on local or state governments to prove why a document should be withheld.

Any citizen who made a formal right-to-know request was required to receive a response from the particular government entity within five days explaining the determination or requesting an additional 30-day review period. If the requestor disagreed with the determination, they could appeal the decision to Mutchler’s office in Harrisburg, which would make a ruling.

But critics say some government agencies used that review period as a stall tactic regardless of what was being requested.

Toni Sidick of Mt. Pleasant Township said she and others made three dozen open records requests since 2009, but typically ran into delays when asking for information from Fort Cherry School District. Requests made to state agencies were promptly returned with the appropriate documents, Sidick said, while school district officials usually found ways to delay handing over information.

“They would automatically hit that 30-day button. It was immediate,” Sidick said. “To me, I felt like it was a major day waste of time and tax money.”

She said even if the Open Records office upheld her request, she would have to pay close attention to make sure the correct information was sent and not redacted. Sidick added that an attorney sometimes was needed to decipher information and decide whether the requestor should continue perusing more documents.

“As a citizen, you’re at a loss unless you’re fortunate to have an attorney at your disposal,” Sidick said. “But (the school district) did have an attorney at their disposal because they could use the school’s solicitor. I love that law, but there are still provisions that leave us citizens at a loss.”

However, Mutchler pointed to success stories that included uncovering information that several fired school employees from one district remained on the payroll, and another that showed a different school district in the state was serving students expired food. Mutchler said “failures” include the governor’s office denying a legitimate, albeit strange, request from a prison inmate asking for the state Constitution.

She said her office stood between some citizens who felt that all documents should be released and a few government officials who wanted to shield everything from the public.

“You have crazy people on both sides of the open records debate,” Mutchler said. “The office stood in the middle.”

Mutchler also acknowledged mistakes during her tenure, including denying an appeal by the Observer-Reporter in July 2013 seeking a financial audit into Cecil Township’s police budget and how its former chief, John Pushak, spent the department’s money. She said her office made the wrong determination at the time since Pushak was under investigation for allegedly embezzling police funds to gamble. Pushak was arrested last March, and Mutchler said the audit should have been available despite the active investigation.

“When you’re dealing with the volume (of appeals), sometimes they slip through the cracks,” she said. “We gave that case extraordinary attention, and I think we were wrong.”

She also admitted the office needs more staffing and a larger budget. That’s one of many aspects state Sen. Matt Smith, D-Mt. Lebanon, who worked as a freshman representative in 2008 to pass the updated law, wants to improve during this next term. An effort to push more changes failed last year, but Smith is once again pushing measures that would open records for state-related universities, including the University of Pittsburgh, Penn State and Temple. He would also like to tighten timelines for agencies to respond, double the office’s budget to $4 million and give it more authority to levy larger sanctions.

“We’ve taken a huge step forward with the law in 2008,” Smith said. “We were once one of the worst in the country in transparency and now we’re one of the best. It’s working well, but saying that, you can always make improvements and refinements.”

The office will see changes soon regardless if legislators are successful in making improvements to the law this session.

Corbett declined to reappoint Mutchler to another six-year term, and she now plans to work in a newly created “transparency practice” with the Pepper Hamilton law firm in Philadelphia. She expects her new position will help corporations, government agencies, the media and citizens to better navigate open records laws.

Erik Arneson, a top aide to state Sen. Dominic Pileggi, who was instrumental in passing the open records updates in 2008, is expected to replace Mutchler. Attempts to reach Arneson were unsuccessful, although Mutchler said his work in Pileggi’s office is encouraging to open records advocates.

Still, the director who steered the Office of Open Records from its inception wonders what the future will hold for it.

“It’s sitting in a most dangerous time because any time there are new players and turnover of this nature, you risk going backward,” Mutchler said. “As long as next director believes in fervently and passionately that citizens own the government and we’re just guardians of (the records).”