Terry Mutchler thought Pennsylvania had made considerable progress since she became the first director of the state’s Office of Open Records in 2008.
Now, however, she’s not so sure.
“I thought we had come a long way, but maybe we haven’t,” Mutchler, who served as director for seven years, said in an interview for this column.
The case that has Mutchler wondering about the state’s progress on open records involves a right-to-know request by state Rep. Frank Burns, a Democrat who represents parts of Cambria and Somerset counties.
A senior member of the House Liquor Control Committee, Burns wanted to know the number of restaurant liquor licenses available in each county throughout Pennsylvania.
Burns said he was trying to get the information so he could learn more about legislation (HB1644) sponsored by Rep. Matthew D. Dowling, R-Fayette, which would significantly increase the number of restaurant liquor licenses in the state. The bill is now before the Liquor Control Committee.
Burns told me he was just trying to do his job.
“How could any elected official make an informed vote on this bill without knowing the number of restaurant licenses the LCB (Liquor Control Board) has to auction?” Burns asked. “We didn’t want to flood the market with additional licenses, hurting small business owners. The public didn’t elect us to guess when making decisions that affect them.”
Burns said he was stunned when the liquor board turned down his request so he took the matter to the Office of Open Records which ruled in his favor.
However, the liquor control board still refused to give up the information, appealing the ruling to the state Commonwealth Court.
Shawn Kelly, a spokesman for the board, defended the agencies’ decision to keep the records confidential.
“To preserve the short- and long-term value of licenses, we’ll refrain from commenting on the remaining pool of licenses that may be auctioned. We believe the information sought by Representative Burns is proprietary and trade secret, and that releasing it will have significant impact on the market.
“As such, we believe defending our position is responsible both to Pennsylvania taxpayers that benefit from our operations and to license holders looking to preserve the value of their licenses,” said Kelly in a statement released to the media.
The statement infuriated Burns.
“I thought I was making a simple request and now they’re talking about trade secrets and proprietary interests. It’s like we’re dealing with a Wall Street company instead of a state agency,” he fumed.
Forced to pay an attorney on his own, Burns hired Mutchler to handle his case before Commonwealth Court.
“ I can think of no one better qualified than Terry Mutchler to take up this fight for transparent state government,” Burns said. “She is synonymous with Pennsylvania open records.
“I know firsthand that Terry has the passion to do what’s right and the legal know-how to handle my case effectively,” Burns said. “I was hoping the LCB would see the light and this wouldn’t go to court. But since they chose this route, I’ve hired the best person that I could possibly find. Unlike the LCB, I won’t be paying my attorney using taxpayer dollars.”
Mutchler credited Burns for continuing the fight for open records without using taxpayers money.
“Frank Burns should be commended for paying his legal fees out of his own pocket,” said Mutchler. “What he’s doing is far different from the LCB which is using taxpayers to fight a case I can’t see them winning.
“We’re not talking about something on the cutting edge here,” said Mutchler. “This is crystal clear. This is one of the most basic public records. Taxpayers should definitely be entitled know the number of liquor licenses in every county.
Mutchler also credited the Office of Open Records for thoroughly researching the LCB issue before ruling against the agency.
“I thought the OOR did a great job in dismantling the legal arguments raised by the LCB,” added Mutchler. “It was very well researched and written.”
Mutchler said she’s hoping to sit down with some of the more experienced lawyers at the LCB and try to reach a settlement before the case goes to Commonwealth Court, costing taxpayers even more money.
However, Sean refused to comment on whether the LCB would be willing to meet with Mutchler to work out a settlement.
“The statement speaks for itself, and we’ll have no further comment,” said Kelly.
Last week, Burns asked Gov. Tom Wolf to file a “friend of the court” brief in support of his legal battle.
“As someone who shares my belief in transparent government, I hope you also share my belief that an agency that works for, and is paid by, state taxpayers should not be keeping ‘trade secrets,”’ said Burns.
Burns maintained that Wolf is in a “strong position to reason with the LCB,” since the governor recently appointed Mary Isenhour, his former chief of staff and senior campaign adviser, as a paid member of the agency’s governing board.
“As someone who has made transparent government a priority since day one of your administration, I believe your expertise in this area and status as a champion of transparency would be invaluable in this fight,” Burns concluded.
Wolf’s office couldn’t be reached for comment.
Capital-Star Opinion contributor Mark O’Keefe, of Mechanicsburg, Pa., is the former Editorial Page Editor of the Uniontown Herald-Standard. His work appears biweekly.