Terry Mutchler

Secrets of Transparency

In Greek myth, Sisyphus was forced to roll a giant boulder up a mountain only to have it roll back down when he reached the top. Over and over again.

Citizens might feel like Sisyphus when they attempt to obtain public records from the insurmountable mountain that often is our state and federal government. Requestors sometimes file requests only to be told the requests for public records “aren't specific enough,” or the requests “are too burdensome,” or they are denied without proper legal explanation. And that's the good news. Sometimes agencies fail to respond to requests for records at all.

As the founding executive director of the Office of Open Records, I once handled an appeal during the first month that the state's new records-access law went into effect. A solicitor responded to a request for public records by returning the request for records to the citizen with a handwritten note jotted in the margin of the paper: “None of your business.”

Before you jump on the bandwagon and label all agencies “anti-open government,” you should understand that requestors aren't always above board with their requests at times either.

I've seen instances where a harassing requestor pummels an agency just for the sake of doing it; or haranguing a public official that he doesn't like. I met a frequent requestor of records that filed a request with the East Stroudsburg School District in Monroe County for a request that involved thousands of records. During a public training question-and-answer session, he “confided” that he actually already had all the records he asked for, “I just wanted to be sure that they were doing their jobs.”

In another instance of  what can only be described as government harassment, (a topic that I will address in-depth in a future column) a requestor filed 300 requests for records of the same agency within a three-month period. The requestor was a man that lost an election and took the sting of loss out by pelting the agency with repeated requests.

Here's the takeaway: there are less-than-sane-people on both sides of the open government equation.

On one hand, citizens and journalists often think that every public official is a criminal who hide public records. On the other extreme, there are public officials that don't like the public. As in politics, extremes tend to warp and harm the overall system. Here too, extremes and extremists serve to harm access to public records.

The goal of transparency law is access and ease—for both the citizen and the agency. I focus here on the rock-rolling efforts of what often seem like the futile effort of repeatedly requesting public records and  repeatedly being denied. Here's a best-practices approach when it comes both to filing and filling requests for public records. It is not an exhaustive list, but hits some of the highlights of how to help facilitate the process of obtaining public records.

My first piece of advice for requestors is to take a look at the agency's website. Many of the forward-thinking agencies at the state and federal level post as much public records on their website as possible. Easy-to-use websites directly reduce the number of public records requests. Agencies should consider posting all records requests they receive on their website, because that too will reduce future requests for the same records and keep the information flowing. The goal should be access and ease.

If a requestor doesn't find the records or information sought on the website, they should contact the agency by telephone or email. A word of caution: contact the agency with an open mind; don't start on war footing. Let the records' official know what you are looking for with as much specificity as possible. Let them know that you are willing to work with them to obtain this outside of a formal public records request. Agencies that receive a records request should consider contacting the requestor and discussing whether they would withdraw the request while the agencies works in good faith to provide the records.

Obtaining records without filing a federal Freedom of Information Act request or a state records request is the best scenario for both citizens and for the agencies. It takes the pressure off both and makes the process less combative. And, in the end, citizens obtain the records.

Handling requests for records off the books only works if the agency and the requestor operate in mutual good faith. I've seen agencies enter such an arrangement that they will provide records if the requestor opts out of the records-access law process and then purposely “delay” responses to public records. On the flip side, I've seen far too many requestors change their minds about the records they really want to obtain mid-process moving the target making it virtually impossible for the agency to comply.

If you must file a written request for records, be as specific as possible. Too often, requestors, particularly journalists, attempt to couch or hide their requests amid a mountain of records requests in a flawed attempt to obfuscate the records that they really seek. Many believe that if the agency really understands what is being requested, the agency won't release the records.

Here's an example. A Chicago reporter sought my help in the early 2000s to obtain emails of a public agency. The reporter couldn't understand why he was locked into a months-long battle to obtain emails. Emails are public record subject to redactions for permissible exceptions. The reporter was interested in emails between two public officials. He knew that the emails he wanted were sent within a three-day window and knew the week they were sent.

In examining his request, he made a plethora of mistakes. The most egregious was trying to obfuscate the records he wanted in his request to the agency. Although he knew what emails he sought were between two officials, instead he filed a request for emails between 20 public officials and asked for their emails over a two-year period. When I asked him why he was burying his request within a mass of unnecessary paperwork, he said, “I don't want the agency to know what I'm really looking for. It's a smoking gun.”

Having been on a myriad of sides of the open records equation as a  citizen requestor, journalist, government official and an enforcer of sunshine law, if a smoking gun exists in a public record, the agency probably is equally aware of its presence. By burying your request for records amid needless records requests basically hands the agency a reason to deny you or at a minimum delay the response.

Indeed, the agency delayed a response for months. The reporter spent hours fighting over records that he didn't even want to begin with. It caused months of frustration for both sides—and more importantly, cost needless taxpayer expense by forcing the agency to spend hours trolling through records.

By the time the reporter came for assistance, his request was so muddled, I advised him to scrap it and start over. He redrafted his request for records identifying only the records that he wanted. The request was written so tightly, it left no room for the agency to erroneously claim specificity issues or voluminous issues. In the end, he obtained the two emails he sought within about two weeks.

Not every request for records can zero in precisely on the records sought. The law in Pennsylvania requires that “a written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.”

In other words, you don't need to know precisely what you seek, just generally, and be able to help the agency locate the records.

Whatever records or information you seek, however, be as precise as you can. It will help the agency identify the records sought. It will also increase your chances on appeal. By clearing identifying the records you seek, you close the loop on an agency attempting to say they don't know what you are seeking.

Do your homework. Understand what records are available to you and what records are not. Part of the Sisyphus' feeling comes from repeatedly asking for records or types of records that are not available under the law.

Too often, requestors file requests for information that is clearly exempt under the law. They continue to file requests for the same information, and then complain that the laws don't work.

Check the law in your state or the federal Freedom of Information Act to have a basic idea of what you seek is public record.

In Pennsylvania, here are some examples of public records: contracts, grant applications, settlement agreements, 911 response time logs, agency decisions, name title and salary of public employees and officials. Here are some examples of records that are not public records: confidential proprietary information; Social Security numbers; drivers' licenses numbers; personal financial information; information that could jeopardize national security.

Increase the chances that you won't share the same destiny as Sisyphus when it comes to records requests: do your homework and be specific.

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. She is author of the best-selling memoir, “Under This Beautiful Dome,” (Seal 2014). She can be reached at [email protected]