The Case For Embracing Transparency

The demand for transparency in government is as old as our democracy. In fact, the founding fathers spelled it out in the Declaration of Independence:

“He has called together Legislative Bodies at Places unusual, uncomfortable, and distant from the Depository of their public Records, for the sole Purpose of fatiguing them into Compliance with his Measures.”

If you skip past the section of the declaration that you had to memorize as a kid, you’ll find this less-quoted list of grievances against King George III. That’s where Thomas Jefferson calls out colonial governors for clandestinely moving the meeting sites of assemblies and limiting access to public records.

Fast forward 242 years and transparency advocates continue to fight the powers that be in the revolutionary pursuit of public access. And—given the current climate of distrust in our democracy and the proliferation of “fake news”—the need for an informed and educated citizenry has arguably never been greater.

Terry Mutchler, the former executive director of Pennsylvania's Office of Open Records (OOR), has made transparency her life’s mission. She was recently inducted into the National Freedom of Information (FOI) Coalition's State Open Government Hall of Fame. It’s a long and cumbersome title for the annually bestowed national honor, but it’s fitting when you consider that there’s nothing concise or easy about getting government agencies to show you their checkbooks.

In a recent interview, the newly minted hall-of-famer summarized the drive toward open government this way: “If ‘fatiguing them into compliance’ doesn’t describe today’s environment, nothing does.”

No one knows that better than Mutchler. Ten years ago she single-handedly built Pennsylvania’s independent open records office from the ground up. Before she even had a budget or a building, she set up a makeshift office in the back of a dismantled library and, with a copy of the state’s new open records law in hand, began interviewing stakeholders and writing the policies and procedures that paved the way for the level of transparency the state currently enjoys.

Mutchler is a former AP award-winning journalist and a current practicing partner at Mutchler Lyons, the nation’s first firm focused exclusively on transparency law. She’s also something of a self-proclaimed openness geek, as evidenced by her ability to quote lesser-known passages from the Declaration of Independence at the drop of a hat.

I asked for her expert take on the near-impossible task of nudging local officials into compliance. Here’s what she had to say about where municipalities stand today and where they should focus their energies for the long-term.

Reframing the argument

Sure, transparency is the bedrock of democracy, but to frame the idea in a way that makes modern sense, Mutchler likens the role of municipal official to that of a credit counselor. She explains, “the first thing a credit counselor tells their client is that you can’t budget or make sound financial decisions for your family unless you actually know where you stand.”

As keepers and executors of the public purse, local leaders should want their constituents to understand what resources they actually have and how those resources are distributed. Yet, there’s often resistance on the part of municipalities to pony up the receipts when asked.

As a practicing attorney, Mutchler attests to the fact that few laws are as emotionally fraught as right-to-know laws. That’s because people on both sides go in with their guard up. The town clerk thinks the constituent is there to check up on him or her. And the constituent thinks the clerk is trying to hide something. So, the relationship tends to be adversarial from the get-go, but it doesn’t have to be.

Reduce Friction

When Mutchler first started at the OOR, she and her modest staff of three managed to conduct some 1500 presentations across the state. She says that every time they went into a town to train municipal officials the amount of record requests actually declined.

Mutchler suggests there are three steps clerks can take now to reduce friction and set the stage for better transparency:

1. Strip emotion from the equation: While a record request may feel personal, it’s not. The requestor wants to see the township’s checkbook, not yours. When you remove emotion and err on the side of openness, you immediately reduce the friction. She advises clerks to adopt a presumption of openness, meaning that they should presume the record is open and then check to see if there’s a legitimate reason to withhold it.
    
2. Formalize the request process: One way to strip the emotion from the task is to make it routine. Create a structure and put forms in place so you don’t have to reinvent the wheel every time you get a request.
    
3. Put it online: Once you’ve built a form and a process, put everything on your website — including your records. The more information you can make accessible, the less you’ll have to manually track down. Plus, you’ll have fewer requests to field if you empower citizens to effectively serve themselves.

All of this may sound overwhelming to public officials who are already overworked and underpaid, but there are actually new ways for municipalities to be more transparent with their records without incurring additional work.

Mutchler says there are companies out there now who can help local governments do the heavy lifting by automating more of what is shared online. Turnkey platforms make it easy to share financials with constituents in a way that’s not only easy-to-understand but also helps to drive public trust, understanding and engagement. According to Mutchler, “trying to be transparent without taking advantage of new technology is like clearing the roads by hand with a shovel instead of using a plow.”

Positioning Pennsylvania for the long-term

Today, with the open records leg of the stool firmly in place, Mutchler says Pennsylvania officials will need to attach two more legs to build government transparency that’s stable and sustainable for the long-term. She explains that to continue on this trajectory, they’ll next need to revisit laws around record retention and open meetings.

Mutchler says the existing record retention law that’s on the books in Pennsylvania hasn’t been updated since 1929.

Today, municipalities struggle to manage not only physical documents but voluminous electronic records as well. There’s just way too much data to tackle transparency without factoring technology into the equation. Furthermore, someone has to decide how long governments should be required to store all those records. These are just a few of the myriad issues that still need to be researched and resolved.

As far as open meetings go, the Pennsylvania Sunshine Act currently requires agencies to “deliberate and take official action on agency business in an open and public meeting.” They also have to notify the public in advance so people “can attend, participate, and comment.” The founding fathers would be proud. Right now, the OOR does not enforce the Sunshine Act, but it does provide training on the law.

Mutchler declares it may take 10 to 15 years to get all three of these pieces to fall into place, but when they do, Pennsylvania will lead the country in transparency and serve as a model for open government everywhere. Spoken like a true hall of famer.