Kenney transparency may improve Philadelphia public records access

Impeding the newsgathering process can negatively affect the Constitutionally protected duty a free press has to the public, erode the trust between the governed and our leaders, and damage voters’ ability to make informed decisions.

Many who have tried to pry loose records from city government over the past eight years — records that We the People own — could agree with Philadelphia Daily News journalist Dana DiFilippo’s characterization of the request process as “schizophrenic.” 

From excessive delays (often the best-case scenario) to legally convoluted, pages-long denial letters using every bizarre legal argument and excuse to block release, the public and press have fought an uphill battle for a wide range of records including closed-door meetings between city officials and Wall Street investors over the city’s fiscal health, politicians’ work calendars, police records, and even elevator records.

Impeding the newsgathering process can have a profoundly negative impact on the Constitutionally protected duty a free press has to the public, and it erodes the trust between the governed and our leaders. And perhaps most importantly, the absence of strong open government practices damages voters’ ability to make informed decisions.

Such open-records dysfunction was painstakingly detailed in a 2013 Daily News expose written by William Bender. In that article, then-Councilman Jim Kenney aptly described Philadelphia’s system under the Nutter regime:

“It has evolved from transparency to translucency. It’s like putting Vaseline on glasses. You can see the light, but you can’t see what you’re looking at.”

Sozi P. Tulante is now the city’s top lawyer, representing both the Kenney administration and City Council, which is undoubtedly no simple task. Among the multitude of responsibilities in his charge, his office is now the arbiter of Philadelphians’ access to the inner workings of their government, known as the Right-to-Know Law (RTKL), a truly landmark piece of legislation enacted by Harrisburg in 2008.

That’s a big deal, and one the Nutter administration, through ineptitude or worse, failed to manage. While it’s true they spearheaded an impressive open data policy that to this day is improving, it hardly made them stalwart advocates of government transparency: Voluntarily releasing open data sets while putting up obstacles to other records — ones that might prove embarrassing to the administration, for instance — was selective and hypocritical.

The current administration’s seeming commitment to transparency presents an opportunity to make the birthplace of the Constitution a national example of true open government.

Putting aside the growing pains any new administration goes through, they’re not off to a great start, however.

The city’s confounding response

We can monitor the government’s handling of Right-to-Know with the use of so-called request tracking sheets, which are spreadsheet logs that track the volume of requests coming in to any given agency; the nature and complexity of the request; the length of time it takes to process, including delays; and whether a request was granted, denied, or appealed. Simply put, these logs are a basic accountability tool.

However, my attempt this month to begin auditing 34 city agencies’ handling of Right-to-Know requests, from the beginning of the Nutter administration to the present, quickly went sideways. First, Assistant City Solicitor Robert Kieffer responded with a six-page letter chock full of serpentine legalese that described my original request as “insufficiently specific”; that agency logs, if released, would be “likely to jeopardize or threaten public safety”; and that the records relate to criminal and noncriminal investigations. His office in the same breath released heavily redacted logs from 11 of the 34 agencies. These redactions rendered the spreadsheets useless.

Nutter redux, anyone?

After reviewing the city’s response, Melissa Melewsky, an attorney with the Pennsylvania NewsMedia Association, said:

“There may be some information that could be exempt, such as legal advice from a staff attorney, but dates, types of records requested, grant or denial of access, and whether an appeal was filed are all subject to public access under the law and must be provided, if the agency maintains the data. The public has a right to know how and whether the city complies with the RTKL, and the records requested in this case are a crucial tool.”

I am appealing the city’s decision.

Pushing for greater transparency

“Why are attorneys from the solicitor’s office automatically involved when I request information?” Daily News journalist William Bender posited to me in an email interview.

“Why can’t the administration just have an employee with access to the information provide it? The whole review by the solicitor’s office adds another layer of bureaucracy and a lot more time.”

Bender points to a very real problem in the request process: Agency RTK officers forwarding so many requests to the solicitor’s office instead of following the spirit, and often letter, of the law. RTKL by itself does not require the solicitor’s involvement. Indeed, one of its crowning features is its presumption of openness. If we take the less cynical path and assume the process of stovepiping almost all requests to the law department isn’t some kind of dark plot, this might indicate a need for city employees to get some legal training.

The Office of Open Records (OOR) in Harrisburg confirmed that the Kenney administration has not requested any training sessions.

“If Mayor Kenney or someone on his staff requests OOR training, we’ll certainly make it happen,” said OOR’s Executive Director Erik Arneson.

Another local journalist I interviewed shortly before Kenney’s inauguration took on the problem of delays more directly.

“It is automatic that they will ask for a 30-day extension … and often they will ask for yet another two weeks,” Inquirer reporter Claudia Vargas said. “And even at that point, I have received an RTK denial letter. I don’t see the reason in waiting 50 days to say ‘No, we are not giving you the information requested.'”

The city’s law department almost inevitably cites “bona fide staffing shortages” as a reason for delays. Tulante admitted to me before his confirmation hearing that he had not reviewed the open records law, but to his credit, he vowed to investigate the delays.

“If there are inordinate delays, then quite frankly we’ll need to get more people,” he said, adding that the delays many Philadelphia journalists and members of the public face “are a priority for me.”

“I assure you that my goal — that I think is consistent with the new administration — is that, to the extent that we can get information out, we will,” he said. “But you know, we have to work with Licenses and Inspections, the police department, and so forth. That’s what often drives it, drives our decision making.”

Another prescription for freeing up the backlog would be to digitize more records, as the city’s new chief integrity officer, Ellen Mattleman-Kaplan, has suggested, and post online the information released through successful requests. Such a move would serve to reduce agency workloads, increase transparency, and be in keeping with Kenney’s pledge to streamline constituent services.

“The best solution is to make public and digitize as many government records as possible in order to minimize the need to file this sort of bullshit,” freelance journalist Ryan Briggs told me.

To be sure, the new administration has shown encouraging signs of breaking with the past, including their intention to cancel out Nutter’s refusal to release stop-and-frisk records, and a commitment to the fiscal watchdog PICA board to disclose officer misconduct records. But Tulante and the Kenney administration still have a decision to make: Will they be good faith stewards of our right to know, or gatekeepers?