Evan M. Lopez
NOTE: This story has been altered since its original print publication.
On a cloudy day in August, tucked away in a quiescent library on the 17th floor of a drab, gray-and-brown skyscraper along 15th and Arch streets, where the city's law department resides, there is a stack of papers. Each one documents a case in which the city refused to reveal something to someone. There are, quite literally, hundreds of them, each offering a glimpse — but only a glimpse — into what our local government doesn't think we should know.
Take, for instance, the 911 tapes regarding the April 29, 2008, shooting of Dwight Dixon on West Thompson Street in North Philly: The public cannot hear them, the city has decided — not now, likely not ever. Same goes for the Police Department's procedures for investigating officers who've shot civilians, and the groundwater contamination records for a building on 1500 S. Columbus Blvd. Ditto for records showing which City Hall renovations from 1962 to 1977 may have involved asbestos, documents implicating the Board of Revision of Taxes in legal violations, video from surveillance cameras showing a car accident around Broad and Susquehanna on July 8, 2009, and many, many more.
In some cases, the city says the records simply don't exist. In others, the requested records did exist, but city officials destroyed them. In others still, the city asserts that the information is privileged because "a criminal investigation is not subject to disclosure" — not even 100 years after that investigation is fait accompli.
Sometimes, of course, secrecy has its merits: The government has an interest in protecting trade secrets, information that might endanger citizens, invasions of privacy and so forth. But in this land of Vince Fumo, where politicians have destroyed public documents and will likely do so again, and where government agencies too frequently try to bury information that might embarrass them, the default should be transparency.
And all too often, it's simply, undeniably, not.
And so you can't help but wonder: Which of these hundreds of denied records requests involve things we ought to know? And more importantly, why doesn't the city think we as taxpayers are entitled to them?
These questions and gaps in intelligence brew an intoxicatingly, frustratingly, even tantalizingly mysterious air around City Hall — an air that Mayor Michael Nutter promised to promptly clear when he entered office in 2008. That climate is bad for politics, after all.
But Nutter hasn't done any such thing. In fact, in the past two-and-a-half years, the fog has only grown thicker and darker.
CULTURE OF SECRECY
It's not supposed to be like this.
On Jan. 7, 2008, with an ebullient crowd in front of him and red-and-white poinsettias wrapped in crinkly paper behind, Nutter delivered his inaugural address. He spoke of "a renewal of Philadelphia." He got endearingly roiled in that classic Nutter way, declaring to criminals, "This is our city, not yours!" and "Enough is enough!" He made a bounty of promises that seem, for the most part, wildly optimistic and naïve today.
Evan M. Lopez
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But then he said something that, even in this new decade of cynicism, seems viable: "There is nothing government does that cannot be done ethically and transparently."
For Brett Mandel, former executive director of good-government group Philadelphia Forward and a candidate for city controller in 2009, it was a galvanizing moment. "I thought, Yes! He gets it," says Mandel. "But that's not how he's chosen to act. Every administration holds their cards close to their vest, obviously, but the difference is this mayor came in saying, 'I'm not going to do what everyone else has done.' What's uncommon — what's appalling — is that the way he's acted strays so far from his campaign rhetoric."
But at the time, Mandel and other good-government wonks, lawyers, activists, journalists, techies, academics and curious laypersons across the city took Nutter's proclamation to mean that a politician was finally willing to halt Philadelphia's legendary culture of secrecy. Here was someone who would let the public in on the decision-making process and, perhaps most importantly, hand over more of those shielded documents sitting in the library at 15th and Arch.
In fact, all three tiers of government seemed to be coalescing around this open-government idea: On Feb. 14, 2008, Gov. Ed Rendell signed into law Pennsylvania's new Right-to-Know act — which hadn't been updated in 51 years — prompting groups like the Better Government Association and Investigative Reporters and Editors Inc., which had once ranked the old law as the second worst in the country, to believe that change was around the bend. Unlike the old law, the new one begins with the presumption that all records are public, and places the onus on the government to prove they're not. A new state agency — the Office of Open Records (OOR) — was created to help citizens access public documents, and the governor appointed former Associated Press journalist Terry Mutchler its executive director.
Early in 2009, President Barack Obama, too, weighed in, saying in a memorandum to the heads of his executive departments and agencies, "My administration is committed to creating an unprecedented level of openness in government. ... In the face of doubt, openness prevails."
But it never did, at least not to the extent it was promised. In the Obama administration's first year, The Washington Post reported in January, more than 300 individuals and public interest groups have sued the White House seeking records — and "in case after case, the plaintiffs say little has changed since the Bush administration years, when most began their quests for records."
In Harrisburg, the open-government ideal was clouded by a bad start. In March 2009 — three months after Pennsylvania's new open records law went into effect — Mutchler sent Rendell a dismaying letter: "I know that you appreciate candor and I cannot be more candid than this. Some agencies, apparently at the direction of [the governor's lawyers], are using the Right-to-Know law as a shield with which to block information rather than a tool with which to open records of government."
She detailed how the governor's lawyers had instructed representatives of state agencies to not answer her calls and asserted that these agencies openly defied the new law; she wondered if "that open-government position" that Rendell touted was "shared by others further down [his] chain-of-command."
Since then, Mutchler says in an interview, she's seen state and local agencies take egregious steps to keep their secrets: One wrote in response to a records request, "None of your business." Others have illegally backdated their denial letters so that requesters can't appeal those denials to OOR. In some cases, the agencies ignored record requests altogether.
In the city, too, the rhetoric of transparency has far outpaced the reality.
Records obtained by City Paper indicate that the press isn't the only group trying to peer under the city and state governments' lids: Lawyers, corporations, researchers, amateur slueths from Media and everyone in between are filing right-to-know requests en masse. For instance, from 2008 to 2009 — when the new law went into effect — the number of requests to the state's Department of Corrections shot up almost threefold, from 397 to 944; of those, more than half came from prisoners, wondering about everything from how often they'd be getting new socks to the name of the cop who shot them.
In theory, strong open records laws empower the little guy — those without the clout of a press badge or the resources to hire a lawyer. "The more scrutiny that we have on the government, the better it's going to behave," says Mutchler.
Ed Goppelt, the citizen journalist who ran the now-defunct hallwatch.org, once put it another way: "It's no accident that Philadelphia ranks near the bottom of the country when it comes to jobs and schools. ... If the public can't see what kind of job their officials are doing, officials have no incentive to do a good job."
Both Nutter and Chris DiFusco, the city's head open records officer, declined interview requests. Instead, the administration referred questions to outgoing spokesman Doug Oliver, who will soon depart for a marketing post at Philadelphia Gas Works.
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Asked how Nutter has lived up to his campaign promises of open government, Oliver points to the city's new 311 line, PhillyStat — the troubled database on city agencies, which has been inoperable since July — and the fact that the city now places more information online, including contract opportunities and weekly revenues.
"Transparency isn't always, you know, 'Mr. Mayor, I want to see what's on your desk,'" says Oliver. "It's often about how you make people feel about their government and how their tax dollars are spent, so we've taken a very broad approach to transparency."
But has the city changed any official policies?
"No," says Oliver.
Of the 20 or so lawyers, city workers, laypersons, reporters and good-government advocates interviewed for this story, almost all congratulate Nutter on making tech-friendly moves. However, some argue that gadgetry-as-transparency is merely a distraction.
"People think that just because there's a flow of Twitter information out there, that's openness," says Mutchler. "That's not openness, that's effusiveness."
Indeed, there's a sense among open-government advocates that the city has continued in the wrong direction during Nutter's tenure: They point to the armed security guard who prevented the press from entering a budget meeting in 2008; the fact that Superintendent Arlene Ackerman first refused to disclose the criteria for her $65,000 bonus, then blocked access to the school district's payroll system from all but two city employees; and the 2010 budget process, which was downright mysterious compared to 2009's, when the public was able to weigh in at budget workshops.
"Philadelphia has gotten worse and worse in terms of filling [Right-to-Know] requests," says Dawn Fallik, a onetime Inquirer reporter who is now an assistant journalism professor at the University of Delaware. In 2006, she requested and got information on how frequently Philly conducts restaurant inspections, which revealed the city was performing fewer inspections than its own regulations require.
But when she sought the same thing this August? The city denied her. "I was told that looking at that was like letting somebody look at your personal medical records. That [attitude] scares me," she says.
"Like most things the mayor talks about, it's form over substance. There's a tradition in the city that says you don't put mistakes in writing," adds Leon King, the former Philadelphia Prison System commissioner and current civil rights attorney. He says that city police and prisons are especially secretive, often claiming that investigations should be kept confidential on unjust grounds. "When I was commissioner, I used to put up a fight, say that investigations were sensitive," he says. "Very rarely was that true."
Since then, says King, nothing's changed.
There's no cut-and-dried way to quantify the city's transparency, or lack thereof. But by looking at the cases in which the city is fighting the state Office of Open Records' rulings, we can see what information the city is willing to go to court — and spend taxpayer money — to keep secret.
The system works like this: If the city denies a record request, the requester can appeal to OOR, which then makes a legally binding final determination — it can deny, grant, withdraw or dismiss the request. If either the city or the requester disagrees with OOR's decision, they can appeal to the Philadelphia Court of Common Pleas and, from there, up the judicial food chain.
Earlier this year, Jonathan Bari, president of the Constitutional Walking Tour of Philadelphia, asked for the meeting minutes of the Independence Visitor Center Corp.'s (IVCC) Board of Directors, on which Nutter sits, for the past six years. Bari suspects that the mayor is cutting deals with his business contacts at IVCC — he notes that Rendell also serves on the nonprofit's board — such as Ride the Ducks. (This year's state budget allocated $5 million to IVCC in Redevelopment Assistance Capital Program funds.)
The city denied Bari's request, arguing that because IVCC isn't a city agency, the public isn't entitled to know what happens at its board meetings. OOR overruled the city, noting, "If a public official serves on a private board in an official capacity, the public has a right to know the extent of that service and see records associated with it."
Instead of heeding OOR's ruling, the city took Bari to court. (The IVCC is fighting the request, as well.) "What we don't want is an unintended consequence where people say, 'OK, let's not put the mayor on this board because now our information is public,'" Oliver says.
Bari requested related documents, too — the correspondence between the mayor and IVCC's chairman, and records related to IVCC's operations at the City Hall Visitors Center — and was denied.
It's doubtful the meeting minutes are as damning as Bari suspects. Nonetheless, the city "knows it's supposed to give this information to [Bari], and will lose eventually," says Mandel. "But by taking him to court, it sends a message. You scare other people from having this battle in the future."
That case is currently tied up in the Court of Common Pleas, as is Inquirer reporter Jeff Shields' request for the past daily calendars of the mayor and City Council members, which Shields hoped might shed light on private meetings with lobbyists and other public officials. It followed the same course as Bari's request: The city denied Shields; OOR ordered that it provide the records; and the city appealed.
The city claims it's a safety issue: "Release of the mayor's daily schedule, including past schedules, would be reasonably likely to result in a substantial and demonstrable risk to the personal security of the mayor," Police Commissioner Charles Ramsey wrote to OOR.
This excuse, however, is belied by the Nutter administration's own actions: Every weekday afternoon, the mayor's office sends reporters an e-mail detailing Nutter's itinerary for the following day. If there were a legitimate safety risk, one imagines, it would be at these well-publicized appearances, not at private meetings with lobbyists.
Indeed, Fallik, who also requested the mayor's calendar, doesn't buy it, either. She points out that The New York Times published Timothy Geithner's schedule from 2007 to 2009, when he was president of the Federal Reserve Bank of New York.
"So that information is public at the federal level, but not here in Philadelphia?" asks Fallik.
And then there's the case involving the ACLU of Pennsylvania, which requested records from the Philadelphia Police Department (PPD) involving stop-and-frisk practices and officers' interactions with undocumented immigrants. After asking the ACLU for a 30-day extension, PPD simply didn't respond; when the ACLU appealed, OOR ordered the police department to hand over the information.
"For the record, the OOR finds the PPD's behavior a willful and wanton disregard for the [Right-to-Know law]," the state agency wrote in its final determination.
PPD simply ignored OOR, too. It took the ACLU filing a petition with the Court of Common Pleas for the PPD to disclose those records.
Howard Maniloff, a board member of the ACLU's Philadelphia chapter, says he's "never seen an agency less open" than the PPD.
One barometer of a government's openness is how well it keeps records of, well, records.
Asked for the number of record requests the city has received, granted and denied since Nutter took office, DiFusco declined, saying that many of them are informal and thus impossible to measure. He allowed City Paper to examine what he called a "representative sample" of these requests. DiFusco also turned down a request for the same information about past administrations.
State agencies have figured out how to track this information: Pennsylvania's Department of Labor and Industry, for instance, reports that it received 201 requests in 2009, and 188 in 2008. And OOR keeps track of how many people appeal the city's denials — 102 since 2009. (Comparatively, 17 people have appealed Pittsburgh's decisions.)
Of these 102, OOR sided with the city 19 times. In 24 cases, OOR overruled the city's denial, at least in part — information that included everything from records of sheriff's foreclosure sales to questions the School Reform Commission asked Ackerman about budget recommendations and legislative needs. (The rest were either withdrawn, dismissed, consolidated or are pending.)
But these numbers don't speak to those who never bothered to appeal to OOR, because they lacked time, were afraid of getting swept up into a costly legal battle, or simply didn't know they could. (In at least one case, for instance, the Sheriff's Office failed to inform a requester that he could appeal to OOR, though it must do so by law.) These factors, say good-government advocates, give agencies the upper hand in the appeals process. They argue that to tip the scales, there must be stricter punishments for violating the Right-to-Know law. Currently, the court may not exceed a penalty of $1,500.
"That's budget dust for most governments," says Tim Potts, Democracy Rising Pa.'s co-founder and president. "In states that take their open records more seriously, repeat offenders of the law can be fired."
Robert Freeman, executive director of New York state's Committee on Open Government, condemns other aspects of Pennsylvania's law, in particular the provision that allows agencies to deny requests deemed "disruptive."
"It's difficult to draw the line between the person who the government thinks is disruptive and the hero in the eyes of the world," he says. He also criticizes the fact that criminal investigations, even decades after they're completed, are not considered public records.
But poor law is only part of the problem. After all, the law only lays down the baseline for what governments must do; there's nothing stopping Nutter from ordering his department heads to adhere to the standards of openness he promised during the campaign.
Thus far, he hasn't.
The Nutter administration, meanwhile, insists that the mayor is keeping his campaign promises. "This government certainly isn't trying to obstruct access to any information," Oliver says.
The stack of hundreds of denied record requests warehoused in the 17th floor of that drab Center City skyscraper suggests otherwise.
NOTE: In the print edition of this story, we incorrectly stated that the city took down an online database of restaurant inspection violations. In fact, the database moved to the state’s Department of Agriculture site. City Paper regrets the error. The online version of this story has been altered to reflect this correction.