HARRISBURG — A recent decision by the Pennsylvania Supreme Court that forces the state Public Utility Commission to release documents after a nearly three-year battle was not only correct, but also will hopefully make other agencies more likely to release documents without a court battle, the former executive director of the Pennsylvania Office of Open Records said.
Terry Mutchler, who served as the office’s first executive director and is now chair of the transparency practice at Pepper Hamilton LLP, said the decision for the PUC to release a letter that tipped it to a failure to follow procedure by PPL Electric Utilities Corporation was a vindication of the original decision by the Office of Open Records that the document should have been public all along.
“The Supreme Court basically said that the PUC could not keep people in the dark about why they were in the dark,” Mutchler told the Pennsylvania Record.
“I think it really shows the power and the importance of this type of law. The citizens in this case had a right to know, and the Supreme Court said they had a clear and unambiguous right to know what was in this public record. We're not talking about principles on a piece of paper — this had actual consequences.
"It's a really good day for transparency.”
The case, which began in 2013, centered around a letter sent by a tipster that said PPL had violated its policy of restoring customers’ power according to a priority ranking system during the aftermath of an October 2011 snowstorm.
After an investigation, the PUC found that the company may have violated both state law and its own internal policy. That resulted in a settlement agreement in which PPL admitted no wrongdoing, but paid a $60,000 civil settlement and agreed to prevent similar occurrences in the future.
When journalists requested documents about that settlement, including the original tip letter, the PUC refused on the grounds that the letter was so brief that it would be impractical to redact identifying information in the letter, a step that the law allows for.
While the Office of Open Records ordered the letter released, a subsequent decision by a Commonwealth Court ruled the letter could be withheld. The Supreme Court’s ruling reversed that decision.
While a group of nearly a dozen media organizations banded together to fight for the letter’s release, most open records requests come from citizens, not reporters or the media, Mutchler said.
“A lot of times with the Right to Know Law, people tend to think it's a media-driven law,” she said. “The practical reality is that citizen benefit from this law on a regular basis. At the Office of Open Records, about 80 percent of the people that went to the office were citizens.”
Many citizens aren’t able to bear the costs of an appeal if their request is denied, she said.
“Often times, citizens don't have the deep pockets to fight until the end,” Mutchler said. “Here we saw a band of media folks come together because of the paramount significance of transparency and stick this out. The practical reality is that not every citizen can do that.”
Mutchler said she hopes that other state agencies and commissions read the court’s decision and become less likely to deny records requests, but her experience was that many times, such rulings don’t make much of a difference day-to-day, despite the fact Pennsylvania’s Right to Know Law is among the strongest in the nation.
“I think there are hundreds of thousands of records that citizens have been able to access solely because of this law,” she said.
“I think it's also fair to say that there is still a healthy amount of resistance across the Commonwealth. It's why the Office of Open Records is still in business. What we hope is that yes, agencies will look at this decision and be less reluctant to release what was, on its face, a public record, and we certainly hope they'll read the very eloquent remarks of Justice (Max) Baer about transparency and why it's so important.”
Supreme Court of Pennsylvania Case number 52 MAP 2015