Terry Mutchler

Secrets of Transparency

In the world of transparency law, summer is great time to do more than enjoy a hotdog, a beer and a baseball game. (Go Cubbies!)

While these summer pastimes undeniably help relieve work stresses, summer is also a great time for state and local officials to adopt best-practices approaches to managing government records. Taking some time to do this during the summer, when agency work tends to slow, will reduce headaches for both citizens and agency officials when responding to requests for public records throughout the year.

In basements, attics and vacant offices throughout the state, many townships, counties, school districts and agencies have stacks of worn and broken banker's boxes overstuffed with government records, sometimes dating back to the 1930s. When I served as founding executive director of the Office of Open Records, I even received complaints from city workers who discovered that the agency was storing government records in the basement of a defunct parking garage—with records exposed to weather, vermin and vandals. Not only is this bad management and defies common sense, but it also complicates and slows down a proper response when citizens file requests for public records.

The Judiciary has held that records access laws are designed to empower citizens by affording them access to information concerning the activities of their government. Further, this important open-government law is 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.

Sunshine laws are written for quick and maximum access to public records. In most states, initial response times for government officials to reply to a request ranges from three to 10 days. The federal government is permitted a 20-day response time under the Freedom of Information Act.

If an agency has countless boxes of records in the basement or backrooms, often without knowing what records are contained in them, response times and the overall intent of the law are severely impeded.

Managing records is the key to an efficient and successful open records law. It's just that simple. My goal is to provide best practices for agencies, focusing on Pennsylvania, but these tips are universal for state and local officials nationally.

Timeframes for how long an agency must maintain a record varies depending on the agency and the type of record. Generally, the standard range is from three years to 20 years. (Although one state agency in Pennsylvania held that its record retention policy required officials to keep records for only one day. That doesn't even pass the gut check for good government.)

The Pennsylvania Historic and Museum Commission oversees the preservation of public records. PHMC is responsible for providing archival and records management services to county and municipal governments, school districts, and the state judicial system. The secretary of administration, on behalf of the governor, administers the records management program for the commonwealth. PHMC, as agent of the secretary, is responsible for implementing the executive branch records management program and the “General Administrative Records Retention and Disposition Schedule for Records Common to Most Agencies.”

PHMC provides in-depth guidance and resources, including manuals on retaining records and how to manage records that no longer need to be retained by the agency. They also provide outlines of records that have historical value and how to handle those. At the state level, commonwealth agencies, including the Office of Attorney General, are authorized to develop records retention and disposition plans, subject to the approval of the executive board, which is made up of secretary's of each of the commonwealth's departments.

Records of permanent or historical value may not be destroyed without the approval of the Pennsylvania Museum and Historical Commission (PHMC).

Currently, the approved records retention period for the Office of Attorney General is two years. Counties and municipalities are subject to records retention schedules established by two separate records committees, the County Records Committee and the Local Government Records Committee. Details of record retention can be found at PHMC's website, www.phmc.org.

As with commonwealth agencies, the PHMC retains authority to approve the disposal of records. School districts, on the other hand, have the authority to independently establish records retention policies for individual school districts; however, financial records are required to be maintained for at least six years.

In summer, when agency work tends to be slower and records requests tend to diminish, agencies should appoint two or three staffers—or a law clerk or intern—to organize records. First to survey where the agency records are located. Then, establish what records the agency possesses. Create a general index of what records your agencies possesses. This doesn't have to be page for page, but categorically. Some states require by law that agencies provide citizens a compiled list of records available for inspection and copying.

Have a senior agency staffer work with the records commission to determine schedules of records management, including disposal where appropriate and preservation where required. If records are very old and beyond the required retention schedules, agencies officials should determine if there is a beneficial reason to further store them working closely with PHMC. In all cases, the public should be kept in the loop. Journalists should take the time to learn record retention requirements for the agencies they cover, report on agency requirements and when public officials have filed requests for permission to dispose of records. They should write about whether agencies have properly complied with these laws, and whether agencies are properly managing records.

During the summer, agencies records managers should also analyze their form response letters.

There's no need for an agency to slow the response process down by writing a new response letter every time a request is received. Have standard response letters prepared and approved by agency counsel that cover initial responses to requests for records. The Office of Open Records created standard forms to help agencies process requests in a speedy fashion. They are available on the Office of Open Records website.

Perhaps my most important summer tip is for agencies to post as many public records as possible on their website. The more records that are available for citizens to review the less requests for records the agency will receive.

Good records management is a form of good government. Citizens have a right to know that the records that they own—government records—are being managed properly and that they can be accessed in a timely manner when a records request is made.

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 is a national board member of the Freedom of Information Coalition. She can be reached at [email protected]