Forging a Career in Open Records Law with Terry Mutchler, Chair of Transparency Law and Public Data Practice at Obermayer

In this episode of On Record PR, Gina Rubel goes on record with Terry Mutchler, Chair of Transparency Law and Public Data Practice at Obermayer, to discuss her trailblazing career helping clients navigate open records law. Terry represents government officials, media and multinational corporations. Terry is a former Associated Press journalist who traded her press pass for a law license. She served as Assistant Attorney General in Illinois and was tapped by Gov. Ed Rendell as the Founding Executive Director of the Office of Open Records enforcing open records laws.

Terry started the nation’s first Transparency Law practice, serves as Vice President of the National Freedom of Information Coalition, and was recently named the 2023 Pennsylvania Attorney of the Year.

In addition, Terry is a recipient of Corporate Counsel’s 2023 Women, Influence and Power in Law Awards in the Lifetime Achievement category. Also known as WIPL, the awards honor lawyers who have demonstrated a commitment to advancing the empowerment of women in law. Terry will be recognized at an awards dinner on Oct. 18 as part of the WIPL Conference in New Orleans.

Gina Rubel: I’m so happy to have you here, Terry. You were referred to us by Dena Lefkowitz, right?

Terry Mutchler: Yes, Dena is just terrific. Dena served as the chief counsel at the Office of Open Records. We met through networking, and another woman had called Dena after hearing me speak and said, “I think you should call this woman.” I’m so grateful to that person. In addition to doing that, Dena also played an integral role for me as I was preparing to write a book, and Dena is a life coach and a great friend. For anybody out there who doesn’t understand what a life coach is or what an executive life coach can do for you, I am a true testament that half of the accomplishments in my bio I wouldn’t even have if it weren’t for the fine-tuning of Dena Lefkowitz.

Gina Rubel: Dena has been a guest on our show, and she is brilliant and a dear friend. I’m happy to be in your inner circle now too.

Listen to Episode 118: How to Build Better Law Firms and Minimize Burnout with Dena Lefkowitz

What is transparency law? Why is it so important, and how does it feed into open records law?

Transparency law is a name that I came up with for using the law to obtain public records for competitive advantage. Think of the Freedom of Information Act and the Right-To-Know Law. Those laws are designed so that citizens can access public records of their government. You want to know how much the school superintendent is earning on his or her contract? That’s a public record under the state’s Right-To-Know Law. What I do is train government officials to understand how to implement these laws so that they don’t go completely insane, because let me just start by saying there are two sets of people when you’re dealing with the Right-To-Know Law and transparency law. You have less-than-sane people on both ends of it. You have citizens and members of the media who often think that every public official is a criminal, but on the other side, you have public officials who don’t like the public.

What I do when I’m working with government officials is try to work with them to understand how to use these laws and how to not reinvent the wheel. For the media, I help them understand how to use these laws to obtain public records in the most expeditious way. You read stories about Freedom of Information Act requests taking years. On average, I’m able to obtain records for folks in less than 60 days. Multinational corporations are where the undergrowth of my law practice is. Many times, private corporations and people in the C-suites think, “Oh, I’m a private company. If I do business with the government, state, federal, local, my records aren’t reachable.” I can’t tell you the number of times that people’s jaws drop when I say, “Oh yeah, your records are reachable if you do business with or are regulated by the state or federal government.”

The seeds of this came as a reporter and then at the Office of Open Records. The Obama Administration had asked me to come and train some Pentagon officials and federal contractors on the Freedom of Information Act. After I did my spiel, I noticed that these federal contractors were lined up out the door, and the business wheels started to turn. When I left government, I transformed it into a business platform. I’ve been working out the kinks for a while, but at Obermayer, I feel like I have found a sweet spot.

Have you found benefits in having a niche practice?

There is a tremendous amount of benefits for me, and the primary benefit is that I don’t go head-to-head with other law firms and lawyers, and I certainly don’t go head-to-head with general counsels. I view this practice and have employed this practice as a value-added. I am working with the general counsel to say, “Hey, listen, in essence, this is a one-shot deal. I’m trying to help you protect an important part of your company. I’m not looking, per se, at least initially, to displace someone. I’m not looking to compete in that way.”

Inevitably, what happens, however, is you come in and you do a good job. For example, some of my larger clients, I do a different whole variety. I’ve had Fox Sports, Zillow, and ABC News. What’ll happen is you come in, you work with them, you get to know them, and then they’ll say, “Hey, I have an employment law issue.” Well, I don’t do those things, but my law firm does. The advantage for me is that I have a graceful, easy way in the door by bringing something to the table without trying to take from somebody else’s plate, if you will. That is a great advantage for me.

Gina Rubel: That’s fantastic, which makes me just think that you are going to love the WIPL Conference because there are so many people there who can benefit from what you do.

How does your work affect corporate C-suite executives, the media, and even the average citizen?

Let’s start with the C-suite. A couple of years ago, pre-COVID, I’m taking a little vacation to go see the northern lights in Iceland. The phone rings and I see that it’s an international number, and I of course panic and think that my Airbnb has fallen through. As it turns out, it was a Viennese company that had obtained a contract in the state of Pennsylvania. What happened is after they obtained this contract, unbeknownst to them, the competitor that lost filed a Right-To-Know Law request to obtain all of their secret sauce. Now the danger was that the state agency failed to tell our guys that, “Hey, somebody came after your records.” Now what I was able to do in that it was a $750 million contract, I was able to intervene, go to the Commonwealth Court, and say, “Hey, look, these folks didn’t give us any notice. The Office of Open Records ordered it released, and we have to go through a million documents. We want a do-over.” The court, in an important case, said, “Due process is critical.”

What I starkly remember is this GC at this company saying to me, “Are you seriously telling me that as a private corporation, my records are reachable?” I said, “Yeah, any record that relates to that state contract.” Now let’s keep in mind, it’s taxpayer dollars, so it should be reachable, the things surrounding that contract. Most of what I do for the C-suites, first of all, is prevent them from having to go in for open heart surgery after we tell them what can happen to their company when things like this happen. For members of the media, I’ve represented the New York Times, ProPublica, and ABC. What we do is also train them because members of the media often think they know how these laws work, when in reality they don’t.

I don’t care how many times you ask for the mayor’s social security number, you aren’t getting it. Why keep trying to do that? Understand how the law works. But my most fun part in some ways is for the average citizen, although most average citizens don’t come for litigation help in this regard. But some of the things that average citizens have learned under the Right-To-Know Law, for example, is that there was a school district that had dismissed four employees, yet those employees remained on the payroll for three months. Another school district was serving expired food to kids. We found out under a contract. Another guy’s sewer kept backing up, and he filed a Right-To-Know Law request for all the work that had been done on his street. It turns out that the city was responsible for what was happening in his house, and he recouped $13,000.

These laws are important in terms of helping citizens and everyone understand their government. Now they have been weaponized in ways, particularly around elections, which is troubling. I was able to put together a combination of political law and media and see through these laws to get to a creative place. I love it because I feel I’m passionate about transparency in government, and equally so, I’m passionate about making sure that records that shouldn’t go out the door under the law are protected.

Gina Rubel: So often we talk to clients that may be doing something that will have a public records component, whether it’s a school district or a municipality even. A lot of times we talk to them about the language used in some of those things that become public record so that they think about how the court of public opinion will perceive those things. For example, even if we’re contracting with a school district, we want to make sure that the contract reads in such a way that people understand exactly why we were hired, exactly what we’re doing, and don’t call into question our relationship with that entity. So many people don’t think about how your contracts could affect the court of public opinion, which is the PR side of what I do.

Terry Mutchler: I think that that is why your clients, particularly, have hit the jackpot because not only are you a former litigator and you understand the grit and gristle of what needs to happen, but you also understand story and you understand how that has to get framed for the person that’s listening to this podcast in the morning drinking a cup of coffee, whether they’re at the kitchen table or whether they’re in the courtroom. I think that that is where you and your organization have also found a sweet spot for entities that you work with. Because so often people forget that it doesn’t matter in some ways what the legality of the contract is. Of course, it does, but what matters also is how people are going to react to that.

Gina Rubel: I just think it’s fascinating because what we do definitely overlaps. Sometimes it’s because we have a client that is subject to the sunshine laws or whatever the case may be. It’s fascinating to me what you do and ties in well to what we like to call incident response, not necessarily crisis communications. We try to avoid the crises and just stick with the incidents.

What trends are you seeing in the industry and how do they impact your business and audiences?

One of the biggest trends right now that we’re seeing is in this politically divisive world that we are experiencing here in the United States particularly, but all over the world for that matter. We are seeing these Right-To-Know Laws and transparency laws being weaponized in a way that I have not seen ever, particularly around election law. In fact, I was just interviewed about Maricopa County in Arizona. I can’t decide if it’s hilarious or just heartbreaking. They have put a disclaimer on their website that says, “We can’t tell you whether what we’re reporting is true. We hold no responsibility for what we are reporting on these election results is true, and we can’t be held accountable to it.” I understand the frustration of where that stems from, but they just added fuel to the fire because public records laws are good laws to help deter corruption and help us get to the bottom line.

The trend that I’m seeing now is I could hold up a piece of paper and tell the world that this piece of paper is white, and there’s going to be people out there that say, “First of all, it’s not a piece of paper, and second of all, it’s not white,” and all of those things. The worst trend I’m seeing right now is a crumbling of trust in our institutions of government. Coming from a reporting and litigating background, we know that there are reasons to question things. We get that. It’s a healthy part of democracy, but at the end of the day, there has to be an absolute that used to be the institution or the record underlying it. I think part of this is from technology, but now I think that’s crumbling and it’s in a dangerous place. That’s the worst trend that I see in terms of transparency law, at least in this moment.

How does generative AI affect what you do?

Well, I think that it’s absolutely going to affect all of us. It already has. We’re talking about it, so it has affected us in some way. There are in fact municipalities in the state that already use AI in order to respond to Right-To-Know Law requests. I don’t think that there’s a problem per se, but you cannot remove the human element because the computer is not going to know for good or for bad what’s a public record. I’ll give you an example in the reverse way. There was a school district in Pittsburgh when I was at the head of the Office of Open Records that received a Right-To-Know Law request related to one of their teachers. What the requester was asking was all public record legally under the law. However, they ignored him. When they ignored him, he came to the Office of Open Records and genius that this fellow was, he attached to his request and his appeal an expired protection from abuse order, in which he said, “Hey, look, this protection from abuse order against this woman is expired. I’m no longer a threat.”

If an AI machine had just done a standard application of the Right-To-Know Law and what this man wanted, he would’ve gotten a ton of information about this woman who clearly feared him, who clearly went to court and got a protection order against him. On the flip side with AI, when you’re going through millions of records at PennDOT that are going to be public record, they can be useful in the way that our computers are useful. However, they cannot replace thoughtful application, because there are right to know requests that ask for the blueprints to Three Mile Island. That’s public record, but you have to apply common sense here. Why does this person want the blueprints to Three Mile Island? Come on.

We are going to see AI used more. I think that the biggest warning that I saw was an article that said that the heads of Silicon Valley have asked for there to be a temporary moratorium on AI research because they never thought we’d get where we are as fast as we did. To answer your question, it already does affect us. It’s going to affect us, but I think that we have to be smart about the ways in which we use this as a tool.

Gina Rubel: I couldn’t agree more with you. I don’t think that moratorium is going to happen, by the way. That was two months ago and two months in AI and generative AI is like 20 years with the number of things that are changing and happening, but we certainly will see.

How did you start the nation’s first transparency law practice?

As a reporter, if somebody would’ve ever said to me, “Hey, someday you’re going to be able to pay your mortgage by using the Freedom of Information Act and becoming an expert in it,” I would’ve laughed. What enables me to help citizens and the media primarily is because of the C-suites that need the help. They are the ones that, in essence, pay full freight. A lot of media do pay full freight, but that’s not where the action is in this practice. For me, it was seeing these federal contractors lined up out the door asking questions like, “Wait a minute. Are you telling me that I can get someone’s contract that got this so I can see how they did it in order to buy for this?”

You can, and also at the same time, I have to help them understand, that they’re not getting the Coke formula here. If something is genuinely a trade secret, you’re not getting it. That’s how I did it. Even though we see a lot of numbers increase in relation to the number of women in law, I still think that there’s a predominant leadership that is still male-oriented, and I think that with a niche practice like this, not only am I able to get in the door and at the table, but I’m then able to turn around and help younger lawyers, particularly women lawyers, to understand how that works, and also to be part of helping them move all of us forward.

Gina Rubel: I have to say, people like you, Bobbi Liebenberg, Deb Willig, these are just some of the women who have done exactly that. I’ve had both Bobbi and Deb on the podcast as well. They’re female lawyers, mentoring other women and making this profession a better place. I just want to say thank you for that, and I know that’s one of the many reasons why you’re being honored with the WIPL Award, but it is appreciated as somebody who was raised in this industry.

Listen to Episode 110: Today’s Fight for the Rights of Union Workers with Deborah Willig

Listen to Episode 111: How to Achieve DE&I in Law Firms Now with Roberta “Bobbi” Liebenberg

Can you tell us a little bit about your bestselling book Under This Beautiful Dome?

I’m going to have to tell on myself a little bit here, but Under This Beautiful Dome is a memoir, and it is a memoir about a secret relationship I had when I was an AP reporter in Illinois. I was the youngest bureau chief appointed to the AP State House Bureau in Illinois, and I fell in love with the senator. It was a same-sex relationship and obviously not good on the ethics front. We actually spent more time talking about the ethical conundrum than we did about the crazy ways in which we were hiding. Clearly at that time in the nineties, her political life would’ve ended if she had been outed. She was in a primarily Republican district in Decatur, Illinois. I certainly would have been and should have been fired for being involved with a source without that type of disclosure. My late partner, who was the senator, unfortunately and sadly died, and I was locked out of our home. I did not ever anticipate writing a book.

What happened is about six years after this happened, some close friends came to me and said, “Hey, you’re not doing well.” And I was not doing well, and they knew that I was a writer. They invited me to this writing retreat in California in the mountains of Los Angeles. I went and for the first time, six years at that point, I told that story publicly. I kind of kept that in. Everybody kept saying, “You need to write a book.” I had A, no idea how to do that and B, I was terrified.

Dena Lefkowitz and I lived near each other. We did not know each other. We were commuting to Harrisburg to do the Office of Open Records when she became my chief counsel. Over the course of that wild ride, and I mean that in a big way, but also in the commuting way, we became close friends. I told her the story, and I had told her that everybody said I should write a book. I hired Dena as an executive life coach, and Dena helped me break that down into not thinking about the end result, so to speak, but just in terms of getting an agent and writing the book proposal. She was significant in that.

I was on The Rachel Maddow Show and NPR. I can say without question that this book would be a dusty manuscript on a shelf if it were not for Dena Lefkowitz helping me understand the components of getting it into the world. Obviously, there are many people to thank, such as my partner; I would not have had the grace to endure all the things that we went through as I was writing this book. In terms of the framework of getting it out there, Dena was significant in that way.

Gina Rubel: First of all, I want to say thank you for your transparency and for sharing your story with the world. I know that sharing stories is not always easy, and especially at a time when the LGBTQ+ community was not nearly as accepted as it is today. It shouldn’t even be a question. However, I just want to say thank you on behalf of myself and our listeners because it means a lot. It means so much to people who are still coming to terms with the world that we live in. Also, for all the people who respect you, and you can say, “Look, this is me.” We’ve all had our challenges, “I just want to thank you for sharing that story with us because this is what I love about On Record PR. It’s about going on the record, it’s about helping our listeners, and we never know how one little part of this conversation will help someone live their life. I mean that with the utmost gratitude.

Terry Mutchler: Thank you. My agent emailed me recently and told me the former CEO of MGM had read the book and has been interested in producing it. He’s at Echo Lake, but the agent had emailed me and said that we thought in a way that these were stories of the past, but we’re seeing them come up again and again. In many ways, the story is about truth. It doesn’t matter if you’re gay or straight or what the dynamic is, it’s about getting quiet enough to understand who you are and live that, which I clearly did not do at the time. I was homophobic, and I had the nice easy cover of being like, “Oh, it’s because I’m a reporter and she’s a lawmaker.” Well, that was part of it, but that wasn’t the gut of it. Thank you for that remark. I appreciate that.

Do you have any questions for me?

Now we’re going to have to double the time of the show because I do have a lot of questions, but also there’s something I’m curious about. You remind me of the way Terry Gross approaches an interview; after doing so many, it’s fresh on the mark. I wasn’t sure how this interview was going to go because I do a fair amount of them, but this has been a conversation. I just want to know from you being the interviewer, how do you stay fresh, interested, and engaged when you’re talking to so many diverse people?

Gina Rubel: Oh my gosh. First of all, I think that’s the best compliment I’ve ever gotten because I love Terry Gross. And I genuinely am interested. What I love about being in public relations, and it’s one of the reasons I love being in the legal space, is that things are new every day. I will tell you; I get bored easily. Being able to talk to different people with different backgrounds, learn about them, and find that intersection of what will bring value to our listening audience brings me a lot of joy. I try in my personal life and professional life to live by the term integrity. I ask questions because I’m truly interested and because I think our audience will be truly interested in the answers. I try not to be mundane, but I have two phenomenal producers on the show and great past guests who make recommendations like Dena.

We work hard to bring top-notch guests to the show who have a story to tell. We don’t want our podcast to be like any other. We can sit here and tell you how to do PR until we’re blue in the face, but that’s not why we do this. It’s about what’s in it for the listening audience. What can they learn? How can they become inspired? If you look at the podcast, there are a number of categories. I try to hit as many of those categories that are relevant to our audience, like inspiration. Every one of the podcasts should have an inspirational component. I just love what I do, and when you love what you do, you do it well. When you don’t love what you do, and I did not like litigating, perhaps you don’t do it as well. I never felt I was a good litigator because I didn’t love it. That’s not a good thing.

Terry Mutchler: I actually read a quote once about Einstein, and it said that when he was a boy, he didn’t like math. He turns out to be the best of the best, but at some point, he fell in love with math. I think your point about inspiration is spot on. What a bird’s eye view that you get of so many different industries and people. The only other question I wondered was, is there somebody that you’ve always wanted to interview that you haven’t netted yet?

Gina Rubel: Oh, gosh. So many people. Terry Gross, Rachel Maddow, Oprah. There are so many leading women journalists, and I don’t profess to be a journalist. The podcast is more citizen journalism as you will, but they’re just so inspirational to me in that journey. I would think any one of those, but if I could bring one person back and interview them, it would be Ruth Bader Ginsburg. I’d have a lot of questions for her, especially even more so now.

Terry Mutchler: I bet. Of your trifecta, I actually think you have a shot at getting Rachel Maddow. I went to see her speak in Philadelphia, and some guy stood up in the crowd during questions and he said, “Listen, I’ve been trying to reach your show. I’ve been trying to reach a producer. I can’t do it,” and et cetera. The crowd starts booing and Rachel Maddow says, “You guys are supposed to be in the city of Brotherly Love.” Then she says to the guy, “Here’s the name of my producer, come backstage.” She was gracious to me. I never in a million years thought she would endorse my book. After being interviewed, her quote is at the top. She’s a giving person to people that she doesn’t even know. Shoot for that one. I think you might get it.

Gina Rubel: I will keep that in mind, and we absolutely will. I’m always looking for those opportunities. We’ve had a lot of New York Times bestselling authors on the show, people who are top of their game such as yourself in the legal industry, and we definitely always want to tie it back to legal. I think now is a good time for Rachel, because there’s a lot to talk about, a lot of big issues happening. I think what so many people forget is that we’re involved at every level of life, right down to what we’re doing about these ridiculous Supreme Court decisions coming down. That’s me speaking on my own behalf, not anybody else’s, but about affirmative action and Roe v. Wade and things of that nature.

I’m sure Rachel would be a great person to have some of that conversation with and how it’s affecting the bigger picture. But with that said, I’d love for you to share how our listeners can get in touch with you. How do you like to be contacted?

Terry Mutchler: I’m going to just lay it all out there and you can get me any way you’d like. My cell phone number is (217) 414-8557. My email is terry.muchler@obermayer.com. I do have LinkedIn. I’m going to try to up my game there because I’m not upping my game in the way that I know that you and Dena would tell me to.

Gina Rubel: I’m going to send you an article that I co-authored with one of my colleagues, Jennifer Simpson Carr, about why LinkedIn is for lawyers, and maybe that’ll inspire you a little bit.

Terry Mutchler: I definitely hope so. And more to the point, maybe it’ll inspire the young women behind us to surpass us.

Gina Rubel: Absolutely. That’s all we can hope for. And in the meantime, I look forward to witnessing you receive your award in New Orleans. Congratulations again.

Terry Mutchler: Thank you. I look forward to seeing your panel there.

Terry Mutchler

Phone: (217) 414-8557

E-mail: terry.muchler@obermayer.com

Website: https://www.obermayer.com/capabilities/practices/litigation/transparency-and-public-data/

LinkedIn: https://www.linkedin.com/in/terry-mutchler-8533947/

Order of a copy of Under This Beautiful Dome: A Senator, A Journalist, and the Politics of Gay Love in America

Gina Rubel

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LinkedIn: http://www.linkedin.com/in/ginafuriarubel/