Terry Mutchler

Secrets of Transparency

Diversity is a terrible thing.

Before dashing off an email criticizing me, I'm not talking diversity of race, gender or ethnicity, which I wholeheartedly support. I'm talking about diversity among public records laws.

Consider these national disparities in public records requests. A Pennsylvania citizen requests a criminal investigative record under its state's Right to Know Law and is denied because those records, by law, are off limits. Even if the records were 100 years old and all parties were deceased, these records are off the table in perpetuity.

An Illinois citizen seeks similar criminal investigative records but receives portions of the records—but only after an expensive legal fight. Recall the withholding of a video public record that showed a now-convicted police officer pumping 16 bullets into the back of a retreating black teenager who held a knife. It took a court order, but the public record was released.

In Florida, the right to obtain public records is embedded in the state constitution. Apropos the Sunshine State, where citizens often obtain investigative records—and relatively quickly.

As a former Associated Press journalist and First Amendment and transparency attorney, I created the Pennsylvania Office of Open Records and the Illinois Public Access Counselor's office, enforcing sunshine laws. These offices helped citizens, journalists and corporations understand and obtain public records.

I'm leveraging three decades of experience at the intersection of media, law and government to unveil a long-held vision for unified open records legislation in every state.

During a speech to the National Freedom of Information Coalition in Cincinnati last month I asked fellow advocates: “Aren't we sick and tired of going to the same conferences year after year and telling and hearing the same stories about how government denies basic public records requests or takes years to respond?”

It's time to turn the fatigue of our complaints into a unified code.

Transparency advocates should steal a page from the playbook of the American Legislative Exchange Council, known as ALEC. ALEC is a nonprofit, members-only group of conservative lawmakers from every state who partner with the private sector. Behind closed doors, they devise, draft and share state-level laws to be distributed among state governments throughout the United States. To be clear, the only page I would mirror from ALEC, which was started in 1973 by an Illinois House staffer, is to corral like-minded advocates to draft and share national legislation to promote transparency in government.

“For generations, ALEC has been where legislators go to better understand how and what to legislate,” ALEC executive director Lisa B. Nelson wrote in an annual report. “They learn from each other about what worked and what didn't, so as to not repeat the mistakes of their predecessors or colleagues from different states.”

In conducting more than 2,000 trainings and speeches for government officials, journalists and corporations, I've learned that transparency advocates regularly commit the same mistake:

• Requestors rarely read the laws governing release of records—and the biggest offenders seem to be journalists.
• Requestors repeatedly ask for records that are exempted, and then get frustrated when they can't obtain the records.
• Repeatedly use badly written (but well-intentioned) “form” requests for records.
• Draft tomes that aren't as much “requests” for records as “roadmaps” for agency denials.

Complaints of slow or no record access are understandable in all states given that each state law is different. Even the writers of the Declaration Independence complained that: “[The King] calls together legislative bodies distant from the repository of their public records for the sole purpose of fatiguing them into compliance.”

We've known for decades that government takes too long to process requests and too often games the system to reach a denial. We must transform our fatigue into unify record access using the same driven mission that ALEC undertook to achieve its legislative goals such as stand your ground; right to work and the like.

The spine of model transparency legislation initially must include three elements: every record must be presumed to be open and available, the burden of proof must rest 100 percent of the time with the government agency to prove any exception it asserts and create an independent office of open records or similar entity (in charge of its own budget and hiring) and armed with binding authority to decide record disputes. This is known as the “Pennsylvania Model.”

Every state has special considerations, and particular exemptions, no doubt, will be inserted in each statehouse. Transparency advocates must accept the reality that not all records within government filing cabinets should be public. (Think Social Security numbers; nuclear plant infrastructures; health records; computer infrastructures).

Here's my proposed roadmap to manifest the vision of unified records access in the United States.

• Call together a small, national working group of like-minded people to draft legislation and simultaneously seek funding from The Knight Foundation, The McArthur Foundation and any other grant-giving entities fervent about open government.
• Organize a symposium of advocates to meet over a two-year period to draft legislation and build public support. This group must consist only of die-hard advocates to ensure an undiluted first draft (shoot for the moon, reach the stars approach). The diluted version will come quickly enough, but we must have enough potency to be effective even with the nonnegotiable exceptions that will be introduced in the bill.

Some of the most obvious players are the national Freedom of Information Coalition, the Society of Professional Journalists; Common Cause; the American Bar Association, Investigative Reporters and Editors; The Center For Public Integrity; The First Amendment Foundation; the Reporters Committee for Freedom of the Press, the American Bar Association, and yes, the Heritage Foundation (whose founder was a co-founder of ALEC), lawmakers and staff. Perhaps most important of all—citizens.

• Select and dispatch dynamic speakers on a national transparency tour to promote unified legislation. The group's best writers must write op-ed pieces, law review articles and webpages. We must remind the public of this Democracy's oldest bedrock: citizens own this government. As the Texas Public Records Act states: “government is the servant of the people, not its master.”
• In the intervals of the bi-annual symposium meetings, each state group should seek input from their state's stakeholders through hearings or written feedback. This would include representatives from trade associations, townships, counties, state agencies and school districts.
• Create a database (similar to ones we built in Pennsylvania and Illinois to track records' request and other important information) to capture proposed state exemptions and concerns. The groups would then analyze common concerns among the states to increase the chance of passage.
• Recruit lawmakers from Denver to Dover and Pierre to Providence, with the support of constitutional officers, to introduce legislation. The beauty of transparency legislation is that both parties claim it. Republicans were the driving force behind the successful law in the Keystone State. Democrats in Illinois were the stalwart leaders in the Land of Lincoln.

Already, I can hear the Herculean pushback: cost and agency burden. That argument is like a bank complaining it must hire bank tellers to handle the volume of money customers invest. The cost of secrecy is far more expensive than the cost of an open and honest government. In fact, public records requests around the country often result in saving taxpayer money. Here's some examples:

A public records request in a northern state revealed that three fired agency employees remained on a government payroll several months after dismissal. Another request sparked an FBI investigation in questionable city vehicle towing practices that were unfairly costing citizens. In the Midwest, citizens learned of a state's poorest school district using government credit cards for lavish spending. In the East, records showed that a state agency responsible for student loans had a spending spree that included mud baths, facials and falconry lessons (yes, teaching birds to land on your arm). A request in the South obtained a database that showed how race factored into recidivism analyses. Yet another showed racial disparity among arrestees who were given and could post bail.

Transparency in government is my lifework. Realistically, I know the passage of a unified records access law in every state probably won't happen in my lifetime. But the work must begin.

President John F. Kennedy often told the story of French military general Marshal Hubert Lyautey. When the general returned from the war, he walked his grounds with his gardener and said, “I want to plant a tree.” The gardener objected because the tree wouldn't reach maturity for 100 years.

“Quickly! There's no time to lose,” Lyautey said. “Plant it this afternoon.”

Our duty is not to see the task finished. Our duty is not to forsake the effort. Let's plant the tree of unified open records' legislation this afternoon. Our Democracy depends on it.

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