Secrets of Transparency

Transparency Law, a specialized practice designed to pry open government records, wasn't a coined phrase until recent years. But despite the newness of those words, the Founding Fathers knew all too well the concept—and frustrations—of attempting to access public records from government. They even wrote about it right here in Philadelphia in the 1700s.

In their fourth grievance to the king, they lamented in their Declaration of Independence that his majesty would call together legislative bodies at unusual and uncomfortable places “distant from the depository of their public records for the sole purpose of fatiguing them into compliance with his measures.”

'Fatiguing Them Into Compliance.'

I'm all too familiar with that very-much alive dynamic when it comes to obtaining public records. I served as the founding executive director of Pennsylvania's Office of Open Records and as Illinois' first public access counselor, enforcing public records laws in both states. Later, I created the nation's first transparency law practice helping corporations, hedge funds and members of the media obtain public records. As a new columnist for The Legal Intelligencer, it's my privilege to debut what I'm calling “The Secrets of Transparency.” Over the coming months, my goal is to help citizens, lawyers, corporations and the media to better understand the inner workings of these laws and how to maximize their use, whether for government accountability, financial investments, and help government lawyers, and their clients, adopt best practices to achieve ease and access of public records without reaching for a bottle.

Don't underestimate how hard it can be to crack the code of the state's Right to Know Law or the nation's Freedom of Information Acts, no matter your intended use of the public information. Getting records in real time is a challenge.

At the federal level, consider that the official title of FOIA officer at the National Department of Defense is called an “Initial Denying Authority.” How can a government expect its citizens to believe it is truly committed to transparency when the first person that handles requests for public records has an official title known as Initial Denying Authority? Is that ironic or funny?

Before you weigh in with heavy criticism of the federal government or FOIA, consider some of the early hard-goings of requests for public records at the state level. In the 2009 debut year of the Office of Open Records, a solicitor for an agency responded—in writing—to a citizen's request for overtime records of a building inspector by writing in the margin of the request: “NONE of your business!” As legal support for that “finding,” he went on to cite an outdated version of the law government the release of public records in Pennsylvania. How's that for “fatiguing them into compliance? “

Both the state and federal laws have improved though. Pennsylvania has come a long way from its marquis 49th worst state in the nation for release of public records. The National Freedom of Coalition marked its improvement from 49th worst state to 14th best in the nation. Another group cited Pennsylvania as high as fifth best. And while I think that moniker is a little ahead of its time, Pennsylvania decidedly has joined the ranks of the nation's transparency leaders: Connecticut, Florida and Texas. With the adoption of E-FOIA, at the federal level there are definite improvements to obtaining public records.

In more than 30 years of working with open-records laws, sometimes called Sunshine Laws, there is a strange emotional interplay that occurs with these laws more than any other law I've seen. On one hand you have citizens and sometimes members of the media that are convinced that every public official is a criminal and that each public official has a special hidden safe for public records. On the other hand, you have public officials that don't like the public. That warring mentality harms everyone—from citizens to businesses to government. While it's easy to criticize the reality of slow-government responses to records requests, it is also true that in some instances it is hard for government agencies to keep up with the reality of the gadfly requestor. An agency once sought help from the Office of Open Records after a citizen filed 300 requests in a 90-day period, a number that admittedly would exhaust the most dedicated and transparent public official. That's what's known as a hobbyist-requestor.

It's undeniable that there are extremes on both ends of the transparency spectrum. But more often, it's the government that is heavy-handed when it comes to fulfilling requests. Having testified before Congress, and several state legislatures attempting to improve their records-access laws, I am convinced that a good portion of improving transparency doesn't even relate to the strength of the statutory language, or the penalties in place. The heavy lifting seems to rest in reminding government that citizens own these records, not the other way around.

No matter if you are the requestor or the government, here are some tips that help obtain records in real time, and how an agency can help to field requests more easily.

First, on the requestor side: do your research. Understand, to the extent possible, what records you want, and look on line to see if the records are already posted with the agency. Before you submit a request, call or email the agency and ask them about the records you seek. Be willing to let the agency look for the records without filing an official request for records. Of course, this type of agreement requires that the agency be dealing in good faith. No agency wants the additional paperwork of handling a written request on a short time frame, so it's often mutually advantageous to work with the agency to get the records you want without a formal written request. Agencies should put as much public record on their website as possible, which I will talk about in a later column. This reduces requests for requests exponentially.

If you must file a written request for records, don't paper an agency with long detailed requests for information. (I once had a requestor file a 12-page single spaced request for records that didn't identify the records he sought.) The key to a successful records request is the way the request is written. Keep your requests for records very short. That's the strongest piece of advice I can give any requestor: keep your request for records to one-sentence if possible.  There's two reasons for this advice. One reason is that it requires the requestor to think about what he or she wants, and to be specific about what you are seeking. (You'd be surprised at how many times a requestor doesn't know what records they want). And two, the more words you use in your request for records, believe me, that translates into more words for lawyers to interpret against release.

Records access laws are a great tool for many different reasons—from keeping an eye on the workings of government as a whole; knowing how taxpayer money is spent; obtaining public records to better understand your own industry, which in turn will give you a competitive edge. There's lots of reasons and uses for obtaining public record: understanding the basics of the law and remembering these laws are tools, not weapons, is a good start, and my first secret of transparency.

Terry Mutchler is the managing partner of Mutchler Lyons, the nation's transparency law firm devoted to helping media, corporations and wealth managers obtain public records. She served as the first executive director of office of Open Records and Illinois' first public access counselor enforcing FOIA. She is author of the best-selling memoir, Under This Beautiful Dome, (Seal 2014). She can be reached at [email protected]