2008-12-11 / Local & State

Pa. Open-Records Chief Shows Independent Spirit


HARRISBURG, Pa. (AP) - Weeks before the state Office of Open Records opens for business, it's clear that office director Terry Mutchler is not going to simply carry the water for Gov. Ed Rendell - the man who appointed her and is technically her boss.

Despite a hectic schedule of workshops at which Mutchler has been teaching Pennsylvanians across the state about the newly expanded Right-to-Know Law, behind the scenes the reporter turned-lawyer has displayed a willingness to take stands that are at odds with the views of the governor's office.

This week, she scored at least a temporary victory involving how much most public agencies should be allowed to charge for copies of documents, specifically those that contain nonpublic information that must be redacted - blacked out - before they are released.

In a long-awaited order last month that also limits photocopying fees to 25 cents per page, Mutchler expressly barred additional charges for the labor involved in retrieving or redacting the records.

"Taxpayers are already paying the salaries of the employees who are handling these records,'' she said. "I want to guard against high fees that block access.''

Around the same time that Mutchler issued her order, Rendell's office issued a directive telling state agencies that they could charge for redaction and retrieval once the new law takes effect Jan. 1.

On Friday, the governor's office backed down - for now anyway - in response to publicity about the conflict.

Citing concern about voluminous right-to-know requests that could bog down an agency's staff, Rendell's spokesman said officials will collect cost information before authorizing any charges beyond copying expenses.

Mutchler is "an independent advocate, clearly,'' said spokesman Chuck Ardo.

More politically charged - and legally murky - is the internal debate over public access to the names of legislators who benefit from the hundreds of millions of dollars a year that is funneled through state grant programs to finance activities in their home districts as diverse as St. Patrick's Day parades, senior centers and football fields.

Nicknamed WAMs - for "walking around money'' - the payments are Pennsylvania's equivalent to congressional earmarks. The process is cloaked in secrecy, but the amount set aside - $360 million last year - is negotiated and the administration follows legislative leaders' recommendations on which legislators' pet projects get funded.

In a legal memorandum to the governor's general counsel in August, Mutchler argued that - under certain conditions - the itemized grant-request lists created by the four legislative caucuses should be made public under the new Rightto Know Law.

Mutchler said the lists may be withheld temporarily from public scrutiny under an exception that protects internal, "predecisional'' records, but that the Legislature would have to release them once they are forwarded to the governor's budget office. Similarly, she said, the budget office may withhold the list while it reviews the grant requests, but must disclose the information once it is forwarded to agencies that will fund the grants.

"Withholding a list of priority projects would circumvent the spirit if ... not the letter of the new Right-to-Know Law,'' she wrote.

In response, Deputy General Counsel Andrea Bowman argued that the documents are not public records. She said the Legislature clearly intended the "predecisional'' exception to be permanent.

"If the exemption ends once a decision is made, then all communications that went into the decision would become public as of when the decision is reached,'' Bowman said in her memo. "This would negate the point of the exemption, which is to have frank and open discussions internally prior to making a decision.''

Any substantial change in the WAMs process is unlikely to be made without a fight - and political consequences - and Mutchler has clearly signaled which side she is on. Ardo says Rendell wouldn't have it any other way.

"We're very comfortable with her independence,'' Ardo said.

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