Terry Mutchler, managing partner, Mutchler Lyons.

Secrets of Transparency

There is a dark aspect of obtaining public records that nobody wants to talk about, but yet it is a silent menace eating away at the healthy vibrant open government laws that enables citizens to obtain information about their government.

The staunchest transparency advocates know that this one issue could be the demise of a strong open records law and yet many still tiptoe around it, nervous to tackle it head on for fear of harming the law or fears that they will weaken the law.

The issue? The issue of the serial requester, which some jurisdictions are calling “vexatious” requesters—a person who files hundreds of requests for public records with the goal of grinding an agency to a halt or harassing public officials.

And because advocates have yet to address this properly through legislation, public officials are now seeking relief from the courts in the form of injunctions, which will have a chilling effect on access to information and honeycomb solid transparency laws. Our lack of action with this very thorny issue is causing harm itself.

When I served as founding executive director of the Office of Open Records, I regularly gave a stump speech about the two extremes that exist when it comes to transparency law. On the one hand, there are citizens and members of the media who could not be dissuaded from the notion that all public officials were criminals who kept police tape around filing cabinets of government records. On the other extreme, I spoke about public officials who plainly don't like the public. I often cited the case in which a solicitor officially responded to a citizen's request for public records by writing in the margin of the request: “None of your business.”

The extremes to any law or measure are where the danger lies. In transparency law, one of the key dangers surfacing at the moment is that of what I call the “serial requester.” I'm talking about the people who file in some cases a thousand requests for public records in a short time. The former elected official who filed 300 requests in a three-month period. Or the advocate in East Stroudsburg who filed a Right to Know request seeking more than 40,000 government records from a local agency. He confided to me as executive director, “Oh, I already have a copy of these records from a friendly board member, I just want to see if the agency will produce what I have and are doing their jobs.” Or the man who filed more than 100 requests and on the eve of the agency's statutory deadline to respond, withdrew his request for the government records. And about six months later, filed another request for the same records—and withdrew the request again.

Let me be clear: I am a staunch supporter of transparency in government. I believe that these laws should be written—and enforced—for maximum access to public records. Pennsylvania courts as well as those nationwide, rightly embrace public records laws as a cornerstone of democracy. The Pennsylvania Supreme Court declared that the “the objective of the Right to Know Law … is to empower citizens by affording them access to information concerning the activities of their government,” as in SWB Yankees v. Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012).

The Commonwealth Court framed the state's Right to Know Law, as a law “designed to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials and make public officials accountable for their actions,” see Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff'd 75 A.3d 453 (Pa. 2013).

I agree wholeheartedly with those holdings, but today, I'm sounding the warning bell that if we don't get a handle on the aspect of the “serial requester” the good work that Pennsylvania has carved out in a strong public records law and rising from 49th worst in the nation to as high as 14th in the nation in transparency rankings will implode on itself. We must address this issue legislatively.

The problem of course is where to draw the line between an individual who seeks public record to properly scrutinize the actions of public officials—and the person that implodes a public records process by harassing public officials with—hundreds and sometimes thousands—of requests. Admittedly, there are the public officials who receive 10 requests a year and protest that they are being harassed, but what I'm talking about is the legitimate issue of when hundreds of requests stream in from one individual.

It is undeniable that it has become increasingly common for public records laws to be weaponized, transformed into a tactic to harass government agencies and third parties through abusive, repetitive and burdensome requests. These require excessive use of taxpayer dollars to respond and divert government staff from other duties, including responding promptly to other RTKL requests.

This abuse of transparency is not consistent with open government goals of the law. In fact, dozens of states include preambles to the law to specifically state that the law is not designed for commercial use or to drain resources from government agencies. In the same way that commercial requesters are draining taxpayer coffers, serial requesters are doing the same. That's the part that nobody wants to address head on. Because we don't know how to hit that “sweet spot” of enabling a free flow of information and preventing the crazy requesters in some instances, we imply look the other way. That inaction is going to cost us.

In Philadelphia one individual filed 500 requests for public records with one city agency. Some of the requests for record had as many as 100 subpart requests for records. Talking with the requester to try and understand what exactly he wanted in terms of public records wasn't successful and in fact it just fueled him to file more requests. After nine years of repeated requests and appeals, the city basically threw its hands up and sought judicial relief against the requester and obtained an injunction.

In Philadelphia v. Lerner, order, Court of Common Pleas, Philadelphia County, No. 180203203 (Oct. 24, 2018), the court granted the city's request to prohibit the requester from submitting further requests for information pursuant to the Pennsylvania Right to Know Law without prior leave of the court to do so. This is believed to be the first injunction since the rewrite of the Pennsylvania Right to Know Law in 2009.

The issuing of an injunction is a critical watershed moment in commonwealth transparency. Other public entities—many without cause—will no doubt begin to take this action. However, eventually, this approach will cause the imploding of the law because more and more agencies—seeking relief and finding none legislatively—will use this tool and will eventually employ it in situations that may not be warranted or against reporters seeking to do their jobs. The legislatively unaddressed aspect of serial requesters are going to cause grave harm to this law.

Many states, local agencies and even the European Union (EU) have undertaken to legislatively address what they call vexatious requesters. The struggle of course is that these measures can be terribly slippery slopes—who defines vexatious? What happens if a government official just doesn't like a person and calls them vexatious? What is the magic number of permissible requests? Even the term “vexatious” requester is fraught with judgment. Yet, it is my expert belief that legislatures must address this aspect of transparency law before more and more injunctions unravel public records laws. Pennsylvania's law already addresses disruptive requesters. The law defines a disruptive requester as the person that files repeated requests for the “same” information, but it is not enough. Serial requesters are clever enough to tweak a request so as to not fall within this statutory definition of seeking the same information.

The state of Connecticut is the forerunner to transparency in government. It has been the strongest advocate among states for open government and the first to adopt open records laws with teeth more than 60 years ago; they are the undisputed leader in this field. Their state's top transparency expert at the Freedom of Information Coalition introduced legislation to address vexatious requesters. She said that their law and the good work they had done related to transparency in government was going to implode unless they addressed what they called the vexatious requester. In fact, she said this move was “overdue.” The law passed and so far it has worked—despite the opposition from the Press Association, the American Civil Liberties Union and others saying that this would insulate government from inspection. That has not happened.

I propose that the Pennsylvania Legislature include an amendment to the Right to Know Law that addresses this problem before we start seeing numerous injunctions. We must address this uncomfortable part of the law before we lose ground, as Connecticut has done.

Pennsylvania needs to protect the hard-fought victory of a very strong Right to Know Law, which established an independent Office of Open Records to handle appeals of denials of public record. We must be brave enough to look at an aspect of the law that could honeycomb transparency. One solution—and I hope that leaders and advocates will propose many—would be to empower the Office of Open Records to determine when cumulative requests are deemed to be vexatious or a serial requester. Let an agency within the statutory five-day window of time for response, file an application with the OOR for a determination of whether the requests falls into the category of a disruptive requester. This would stay the request for a short period of time, say five days, for OOR review. The OOR could then grant the agency extra time or fee in fulfilling the request if it deems the request to fall within this specialized category.

It is unfair—mostly to taxpayers—to enable a few citizens to overrun and potentially ruin Pennsylvania's very strong open records law, which by all accounts has opened hundreds of thousands of records to public review.

Terry Mutchler is the managing partner of Mutchler Lyons, the nation's first transparency law firm devoted to helping media and corporations obtain public records in real time. She served as the founding executive director of Pennsylvania's Office of Open Records and a board member of the National Freedom of Information Coalition. Contact her at [email protected].