The following program materials are provided below by the Cowitch/Fisher group:

• A Summary of the Major Changes to the RTKL in 2009, and
• Pennsylvania's Right To Know Law

 

Summary of Major Changes to the RTKL in 2008

65 P.S. § 67.101et seq.

 

1)       More agencies and branches included within its coverage.

 

Records from all branches of local and state government including the judiciary are now accessible under the RTKL although there is limited access to legislative and judicial records.  The prior law was limited to the executive branch.

 

2)      The definition of "record" was added.

 

Record: Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.  65 P.S. § 67.102.

 

3)      The definition of "public record" was changed and broadened.

 

Prior definition: any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property and any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons . . . .  65 P.S. § 66.1(2)

 

2008 definition: A record, including a financial record, of a Commonwealth or local agency that:  (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.  65 P.S. § 67.102.

 

4)      Added definitions for legislative and financial records.

 

Legislative Records: Any of the following relating to a legislative agency or a standing committee, subcommittee or conference committee of a legislative agency:

(1)         A financial record.

(2)         A bill or resolution that has been introduced and amendments offered thereto in committee or in legislative session, including resolutions to adopt or amend the rules of a chamber.

(3)         Fiscal notes.

(4)         A cosponsorship memorandum.

(5)         The journal of a chamber.

(6)         The minutes of, record of attendance of members at a public hearing or a public committee meeting and all recorded votes taken in a public committee meeting.

(7)         The transcript of a public hearing when available.

(8)         Executive nomination calendars.

(9)         The rules of a chamber.

(10)     A record of all recorded votes taken in a legislative session.

(11)     Any administrative staff manuals or written policies.

(12)     An audit report prepared pursuant to the act of June 30, 1970 (P.L. 442, No. 151) entitled, "An act implementing the provisions of Article VIII, section 10 of the Constitution of Pennsylvania, by designating the Commonwealth officers who shall be charged with the function of auditing the financial transactions after the occurrence thereof of the Legislative and Judicial branches of the government of the Commonwealth, establishing a Legislative Audit Advisory Commission, and imposing certain powers and duties on such commission."

(13)     Final or annual reports required by law to be submitted to the General Assembly.

(14)     Legislative Budget and Finance Committee reports.

(15)     Daily legislative session calendars and marked calendars.

(16)     A record communicating to an agency the official appointment of a legislative appointee.

(17)     A record communicating to the appointing authority the resignation of a legislative appointee.

(18)     Proposed regulations, final-form regulations and final-omitted regulations submitted to a legislative agency.

(19)     The results of public opinion surveys, polls, focus groups, marketing research or similar efforts designed to measure public opinion funded by a legislative agency.

 

Financial Record:  Any of the following:

(1)   Any account, voucher or contract dealing with:

                                                  i.            the receipt or disbursement of funds by an agency; or

                                                ii.            an agency's acquisition, use or disposal of services, supplies, materials, equipment or property.

(2)   The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee.

(3)   A financial audit report. The term does not include work papers underlying an audit.

 

5)      Shifted burden of proof to government agencies.

 

Prior:  Burden was on the person seeking to compel disclosure to establish that the document: (1) was generated by an agency subject to the RTKL; (2) was a minute, order or decision of an agency or an essential component thereof; (3) fixes personal or property rights or duties of any person or group; and (4) is not protected by statute, order or decree of law.

 

2008:  There is a presumption that a record in the possession of an agency is a public record unless otherwise protected by law or privilege.

 

6)      The 2008 amendments added penalties against agencies for unreasonable refusals to release records.  65 P.S. §§ 1303, 1305

 

Denial of access = not more than $1,500 if an agency denied access to a public record in bad faith

Failure to comply with court order = not more than $500 per day until the records are provided

 

Court costs and attorney fees.

 

7)      2008 amendments created a defined procedure for a member of the public to request records. 65 P.S. §§ 901, 902, 903.

 

a)      Requester submits a verbal or written request for records to an agency's open records officer (AORO).  Only denials of written requests are appealable.

 

b)      Agency has 5 business days to respond.  May ask for a 30-day extension for certain reasons: redaction, retrieval of records from remote location, bona fide staffing limitations, legal review is necessary, requester has not complied with agency's policies regarding access to records, requester refuses to pay applicable fees, extent or nature of records precludes a response within 5 days.

 

c)      Agency response must be in writing and, if denied, include detailed reasons for denial, the legal authority for the denial and the procedure for taking the appeal.

 

d)     If no response is provided within the 5 (or 30) days, the request is deemed denied and the requester may appeal to the OOR.

 

8)      OOR was created.  65 P.S. § 67.1310.

 

Duties of the OOR:

a)      Provide information relating to the implementation and enforcement of the RTKL.

b)      Issue advisory opinions to agencies and requesters.

c)      Provide annual training to local and state agencies, public officials and public employees

d)     Assign appeals officers to review appeals.

e)      Train appeals officers.

f)       Hold appeal hearings if necessary.

g)      Establish an informal mediation program.

h)      Establish a website.

i)        Conduct a biannual review of fees under the RTKL.

j)        Annually report its activities and findings to the Governor and General Assembly.

 

 

9)      Defined 30 exemptions from disclosure.  65 P.S. § 67.708(b).

 

Examples:

 

Records which the disclosure of would be reasonably likely to result in substantial and demonstrable risk of physical harm to or the personal security of an individual.  65 P.S. § 67.708(b)(1)(ii).

           

Personal identification information including social security number; driver's license number; personal financial information; home, cell or personal telephone numbers; personal email addresses; employee number; other confidential personal identification number; spouse's name; marital status; beneficiary or dependent information; home addresses of law enforcement officer or judge.  65 P.S. § 67.708(b)(6)(i).

 

Specific records related to an agency employee.  65 P.S. § 67.708(b)(7).

 

A record that reflects the predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members of another agency including those records related to budget recommendations, legislative proposals, contemplated or proposed policy or any research, memos or other documents used in the predecisional deliberation.  65 P.S. § 67.708(b)(10)(i)(A).

 

Notes or working papers prepared by or for a public agency or public employee used solely for that official's or employee's own personal use.  65 P.S. § 67.708(b)(12).

 

Records related to criminal and noncriminal investigations. 65 P.S. §§ 67.708(b)(16), (17).

 

10)        Prior: had to be a citizen of Pennsylvania in order to make a request or through a PA attorney

 

2008: must be a legal resident of the United States

 

11)        2008 Amendments now have 30 statutory exemptions.  65 P.S. § 67.708(b).

 

 

 

 

 

Cases and Statutes Referenced in Presentation

 

Bowling v. Office of Open Records, 2013 Pa. LEXIS 1800 (Pa. August 30, 2013)

The Commonwealth Court correctly held that its standard of review isde novoand its scope of review is broad and plenary when it hears appeals from determinations made by appeals officers under the RTKL.

 

 

Pa. Gaming Control Bd. v. Office of Open Records, 48 A.3d 503 (Pa. Cmwlth. 2012),appeal granted, ___ A.3d ___, 2013 Pa. LEXIS 2033 (Pa. Sept. 11, 2013).

A request for records is valid even if it does not state that it is a RTKL request and is not presented on the agency's or OOR's standardized RTKL form.

 

 

Levy v. Senate of Pa., 65 A.3d 361 (Pa. 2013)

The Commonwealth Court erred in holding that an agency waives any reasons for non-disclosure not raised in its initial Section 903 written response, and therefore the per se waiver rule set forth inSignature Info. Solutions, LLC v. Aston Twp.,995 A.2d 510, 512 (Pa. Cmwlth. 2010) and its progeny is unnecessarily restrictive.

 

 

Commonwealth v. Donahue, 59 A.3d 1165 (Pa. Cmwlth. 2013).

Section 901 of the RTKL requires an agency to respond to a written RTKL request within 5 days of the request's receipt by theagency's open records officer.

 

 

Office of the Lt. Governor v Mohn, 67 A.3d 123 (Pa. Cmwlth 2012).

There is no constitutional right to privacy in one's home address under the Pennsylvania Constitution that would preclude the release of the home addresses.

 

 

Section 708(b)(6)(i)(C) of the RTKL- home addresses of judges and law enforcement officers are exempt from disclosure.

 

 

Section 708(b)(30) of the RTKL- home addresses of children 17 years of age or younger are exempt from disclosure.

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Pennsylvania's New Right to Know Law

Act 3 of 2008, as signed by Gov. Edward G. Rendell on February 14, 2008

Effective January 1, 2009

AN ACT

Providing for access to public information, for a designated open

 

-

records officer in each Commonwealth

agency, local agency, judicial agency and legislative agency, for procedure, for appeal of agency

determination, for judicial review and for the Office of Open Records; imposing penalties; providing for

reporting by State

 

-

related institutions; requiring the posting of certain State contract information on the

Internet; and making related repeals.

TABLE OF CONTENTS

Chapter 1. Preliminary Provisions

Section 101. Short title.

Section 102. Definitions.

Chapter 3. Requirements and Prohibitions

Section 301. Commonwealth agencies.

Section 302. Local agencies.

Section 303. Legislative agencies.

Section 304. Judicial agencies.

Section 305. Presumption.

Section 306. Nature of document.

Chapter 5. Access

Section 501. Scope of chapter.

Section 502. Open

 

-

records officer.

Section 503. Appeals officer.

Section 504. Regulations and policies.

Section 505. Uniform form.

Section 506. Requests.

Section 507. Retention of records.

Chapter 7. Procedure

Section 701. Access.

Section 702. Requests.

Section 703. Written requests.

Section 704. Electronic access.

Section 705. Creation of record.

Section 706. Redaction.

Section 707. Production of certain records.

Section 708. Exceptions for public records.

Pennsylvania's New

 

2

Right-To-Know Law

Chapter 9. Agency Response

Section 901. General rule.

Section 902. Extension of time.

Section 903. Denial.

Section 904. Certified copies.

Section 905. Record discard.

Chapter 11. Appeal of Agency Determination

Section 1101. Filing of appeal.

Section 1102. Appeals officers.

Chapter 13. Judicial Review

Section 1301. Commonwealth agencies, legislative agencies judicial agencies.

Section 1302. Local agencies.

Section 1303. Notice and records.

Section 1304. Court costs and attorney fees.

Section 1305. Penalties.

Section 1306. Immunity.

Section 1307. Fee limitations.

Section 1308. Prohibition.

Section 1309. Practice and procedure.

Section 1310. Office of Open Records.

Chapter 15. State

 

-

Related Institutions

Section 1501. Definition.

Section 1502. Reporting.

Section 1503. Contents of report.

Section 1504. Copies and posting.

Chapter 17. State Contract Information

Section 1701. Submission and retention of contracts.

Section 1702. Public availability of contracts.

Chapter 31. Miscellaneous Provisions

Section 3101. Applicability.

Section 3101.1. Relation to other law or judicial actions.

Section 3101.2. Severability.

Section 3102. Repeals.

Section 3103. References.

Section 3104. Effective date.

Pennsylvania's New Right-To-Know Law

 

3

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

CHAPTER 1. PRELIMINARY PROVISIONS

Section 101. Short title.

This act shall be known and may be cited as the Right

 

-to-

Know Law.

Section 102. Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section

unless the context clearly indicates otherwise:

"

 

Administrative proceeding."

A proceeding by an agency the outcome of which is required to be based on

a record or documentation prescribed by law or in which a statute or regulation is particularized in

application to individuals. The term includes an appeal.

"

 

Agency."

A Commonwealth agency, a local agency, a judicial agency or a legislative agency.

"

 

Aggregated data."

A tabulation of data which relate to broad classes, groups or categories so that it is not

possible to distinguish the properties of individuals within those classes, groups or categories.

"

 

Appeals officer."

As follows:

(

 

1) For a Commonwealth agency or a local agency, the appeals officer designated under section 503(a )

.

(

 

2) For a judicial agency, the individual designated under section 503(b )

.

(

 

3) For a legislative agency, the individual designated under section 503(c )

.

(

 

4)

For the Attorney General, State Treasurer, Auditor General and local agencies in possession of criminal

investigative records, the individual designated under section 503

 

(d)

.

"

 

Commonwealth agency."

Any of the following:

(

 

1)

Any office, department, authority, board, multistate agency or commission of the executive branch; an

independent agency; and a State

 

-

affiliated entity. The term includes:

(

 

i) The Governor'

s Office.

(

 

ii)

The Office of Attorney General, the Department of the Auditor General and the Treasury

Department.

(

 

iii)

An organization established by the Constitution of Pennsylvania, a statute or an executive order

which performs or is intended to perform an essential governmental function.

(

 

2)

The term does not include a judicial or legislative agency.

"

 

Confidential proprietary information."

Commercial or financial information received by an agency:

(

 

1)

which is privileged or confidential; and

(

 

2)

the disclosure of which would cause substantial harm to the competitive position of the person that

submitted the information.

"

 

Financial record."

Any of the following:

(

 

1)

Any account, voucher or contract dealing with:

(

 

i)

the receipt or disbursement of funds by an agency; or

(

 

ii) an agency'

s acquisition, use or disposal of services, supplies, materials, equipment or property.

Pennsylvania's New

 

4

Right-To-Know Law

(

 

2)

The salary or other payments or expenses paid to an officer or employee of an agency, including the

name and title of the officer or employee.

(

 

3)

A financial audit report. The term does not include work papers underlying an audit.

"

 

Homeland security."

Governmental actions designed to prevent, detect, respond to and recover from acts

of terrorism, major disasters and other emergencies, whether natural or manmade. The term includes

activities relating to the following:

(

 

1)

emergency preparedness and response, including preparedness and response activities by volunteer

medical, police, emergency management, hazardous materials and fire personnel;

(

 

2)

intelligence activities;

(

 

3)

critical infrastructure protection;

(

 

4)

border security;

(

 

5)

ground, aviation and maritime transportation security;

(

 

6)

biodefense;

(

 

7) detection of nuclear and radiological materials; and (8) research on next-

generation securities

technologies.

"

 

Independent agency."

Any board, commission or other agency or officer of the Commonwealth, that is

not subject to the policy supervision and control of the Governor. The term does not include a legislative

or judicial agency.

"

 

Judicial agency."

A court of the Commonwealth or any other entity or office of the unified judicial system.

"

 

Legislative agency."

Any of the following:

(

 

1)

The Senate.

(

 

2)

The House of Representatives.

(

 

3)

The Capitol Preservation Committee.

(

 

4)

The Center for Rural Pennsylvania.

(

 

5)

The Joint Legislative Air and Water Pollution Control and Conservation Committee.

(

 

6)

The Joint State Government Commission.

(

 

7)

The Legislative Budget and Finance Committee.

(

 

8)

The Legislative Data Processing Committee.

(

 

9)

The Independent Regulatory Review Commission.

(

 

10)

The Legislative Reference Bureau.

(

 

11)

The Local Government Commission.

(

 

12)

The Pennsylvania Commission on Sentencing.

(

 

13)

The Legislative Reapportionment Commission.

(

 

14)

The Legislative Office of Research Liaison.

(

 

15)

The Legislative Audit Advisory Commission.

Pennsylvania's New Right-To-Know Law

 

5

"

 

Legislative record."

Any of the following relating to a legislative agency or a standing committee,

subcommittee or conference committee of a legislative agency:

(

 

1)

A financial record.

(

 

2)

A bill or resolution that has been introduced and amendments offered thereto in committee or in

legislative session, including resolutions to adopt or amend the rules of a chamber.

(

 

3)

Fiscal notes.

(

 

4)

A cosponsorship memorandum.

(

 

5)

The journal of a chamber.

(

 

6)

The minutes of, record of attendance of members at a public hearing or a public committee meeting

and all recorded votes taken in a public committee meeting.

(

 

7)

The transcript of a public hearing when available.

(

 

8)

Executive nomination calendars.

(

 

9)

The rules of a chamber.

(

 

10)

A record of all recorded votes taken in a legislative session.

(

 

11)

Any administrative staff manuals or written policies.

(

 

12) An audit report prepared pursuant to the act of June 30, 1970 (P.L.442, No.151) entitled, "

An act

implementing the provisions of Article VIII, section 10 of the Constitution of Pennsylvania, by

designating the Commonwealth officers who shall be charged with the function of auditing the

financial transactions after the occurrence thereof of the Legislative and Judicial branches of the

government of the Commonwealth, establishing a Legislative Audit Advisory Commission, and

imposing certain powers and duties on such commission.

 

"

(

 

13)

Final or annual reports required by law to be submitted to the General Assembly.

(

 

14)

Legislative Budget and Finance Committee reports.

(

 

15)

Daily Legislative Session Calendars and marked calendars.

(

 

16)

A record communicating to an agency the official appointment of a legislative appointee.

(

 

17)

A record communicating to the appointing authority the resignation of a legislative appointee.

(

 

18) Proposed regulations, final-form regulations and final-

omitted regulations submitted to a legislative

agency.

(

 

19)

The results of public opinion surveys, polls, focus groups, marketing research or similar efforts

designed to measure public opinion funded by a legislative agency.

"

 

Local agency."

Any of the following:

(

 

1)

Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or

vocational school.

(

 

2)

Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or

similar governmental entity.

"

 

Office of Open Records."

The Office of Open Records established in section 1310.

"

 

Personal financial information." An individual'

s personal credit, charge or debit card information; bank

account information; bank, credit or financial statements; account or PIN numbers and other

information relating to an individual

 

'

s personal finances.

Pennsylvania's New

 

6

Right-To-Know Law

"

 

Privilege." The attorney-work product doctrine, the attorney-client privilege, the doctor-

patient privilege,

the speech and debate privilege or other privilege recognized by a court interpreting the laws of this

Commonwealth.

"

 

Public record."

A record, including a financial record, of a Commonwealth or local agency that:

(

 

1)

is not exempt under section 708;

(

 

2)

is not exempt from being disclosed under any other Federal or State law or regulation or judicial order

or decree; or

(

 

3)

is not protected by a privilege.

"

 

Record."

Information, regardless of physical form or characteristics, that documents a transaction or

activity of an agency and that is created, received or retained pursuant to law or in connection with a

transaction, business or activity of the agency. The term includes a document, paper, letter, map, book,

tape, photograph, film or sound recording, information stored or maintained electronically and a dataprocessed

or image

 

-

processed document.

"

 

Requester."

A person that is a legal resident of the United States and requests a record pursuant to this act.

The term includes an agency.

"

 

Response." Access to a record or an agency'

s written notice to a requester granting, denying or partially

granting and partially denying access to a record.

"

 

Social services."

Cash assistance and other welfare benefits, medical, mental and other health care services,

drug and alcohol treatment, adoption services, vocational services and training, occupational training,

education services, counseling services, workers

 

'

compensation services and unemployment

compensation services, foster care services, services for the elderly, services for individuals with

disabilities and services for victims of crimes and domestic violence.

"

 

State- affiliated entity."

A Commonwealth authority or Commonwealth entity. The term includes the

Pennsylvania Higher Education Assistance Agency and any entity established thereby, the Pennsylvania

Gaming Control Board, the Pennsylvania Game Commission, the Pennsylvania Fish and Boat

Commission, the Pennsylvania Housing Finance Agency, the Pennsylvania Municipal Retirement Board,

the State System of Higher Education, a community college, the Pennsylvania Turnpike Commission, the

Pennsylvania Public Utility Commission, the Pennsylvania Infrastructure Investment Authority, the State

Public School Building Authority, the Pennsylvania Interscholastic Athletic Association and the

Pennsylvania Educational Facilities Authority. The term does not include a State

 

-

related institution.

"

 

State- related institution."

Includes:

(

 

1)

Temple University.

(

 

2)

The University of Pittsburgh.

(

 

3)

The Pennsylvania State University.

(

 

4)

Lincoln University.

"

 

Terrorist act." A violent or life-

threatening act that violates the criminal laws of the United States or any

state and appears to be intended to:

(

 

1)

intimidate or coerce a civilian population;

(

 

2)

influence the policy of a government; or

(

 

3)

affect the conduct of a government by mass destruction, assassination or kidnapping.

"

 

Trade secret."

Information, including a formula, drawing, pattern, compilation, including a customer list,

program, device, method, technique or process that:

(

 

1)

derives independent economic value, actual or potential, from not being generally known to and not

being readily ascertainable by proper means by other persons who can obtain economic value from its

disclosure or use; and

Pennsylvania's New Right-To-Know Law

 

7

(

 

2)

is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The term includes data processing software obtained by an agency under a licensing agreement prohibiting

disclosure.

CHAPTER 3. REQUIREMENTS AND PROHIBITIONS

Section 301. Commonwealth agencies.

(

 

a) Requirement. -

A Commonwealth agency shall provide public records in accordance with this act.

(

 

b) Prohibition. -

A Commonwealth agency may not deny a requester access to a public record due to the

intended use of the public record by the requester unless otherwise provided by law.

Section 302. Local agencies.

(

 

a) Requirement. -

A local agency shall provide public records in accordance with this act.

(

 

b) Prohibition. -

A local agency may not deny a requester access to a public record due to the intended use

of the public record by the requester unless otherwise provided by law.

Section 303. Legislative agencies.

(

 

a) Requirement. -

A legislative agency shall provide legislative records in accordance with this act.

(

 

b) Prohibition. -

A legislative agency may not deny a requester access to a legislative record due to the

intended use of the legislative record by the requester.

Section 304. Judicial agencies.

(

 

a) Requirement. -

A judicial agency shall provide financial records in accordance with this act or any rule

or order of court providing equal or greater access to the records.

(

 

b) Prohibition. -

A judicial agency may not deny a requester access to a financial record due to the

intended use of the financial record by the requester.

Section 305. Presumption.

(

 

a) General rule. -

A record in the possession of a Commonwealth agency or local agency shall be presumed

to be a public record. The presumption shall not apply if:

(

 

1)

the record is exempt under section 708;

(

 

2)

the record is protected by a privilege; or

(

 

3)

the record is exempt from disclosure under any other Federal or State law or regulation or judicial order

or decree.

(

 

b) Legislative records and financial records. -

A legislative record in the possession of a legislative

agency and a financial record in the possession of a judicial agency shall be presumed to be available in

accordance with this act. The presumption shall not apply if:

(

 

1)

the record is exempt under section 708;

(

 

2)

the record is protected by a privilege; or

(

 

3)

the record is exempt from disclosure under any other Federal or State law, regulation or judicial order

or decree.

Section 306. Nature of document.

Nothing in this act shall supersede or modify the public or nonpublic nature of a record or document

established in Federal or State law, regulation or judicial order or decree.

Pennsylvania's New

 

8

Right-To-Know Law

CHAPTER 5. ACCESS

Section 501. Scope of chapter.

This chapter applies to all agencies.

Section 502. Open-records officer.

(

 

a) Establishment.

-

(

 

1) An agency shall designate an official or employee to act as the open-

records officer.

(

 

2) For a legislative agency other than the Senate or the House of Representatives, the open-

records officer

designated by the Legislative Reference Bureau shall serve as the open

 

-

records officer.

Notwithstanding paragraph

 

(1)

, a political party caucus of a legislative agency may appoint an openrecords

officer under this section.

(

 

b) Functions.

-

(

 

1) The open-

records officer shall receive requests submitted to the agency under this act, direct requests

to other appropriate persons within the agency or to appropriate persons in another agency, track the

agency

 

'

s progress in responding to requests and issue interim and final responses under this act.

(

 

2) Upon receiving a request for a public record, legislative record or financial record, the open-

records

officer shall do all of the following:

(

 

i)

Note the date of receipt on the written request.

(

 

ii) Compute the day on which the five-

day period under section 901 will expire and make a notation

of that date on the written request.

(

 

iii)

Maintain an electronic or paper copy of a written request, including all documents submitted with

the request until the request has been fulfilled. If the request is denied, the written request shall

be maintained for 30 days or, if an appeal is filed, until a final determination is issued under

section 1101

 

(b)

or the appeal is deemed denied.

(

 

iv)

Create a file for the retention of the original request, a copy of the response, a record of written

communications with the requester and a copy of other communications. This subparagraph shall

only apply to Commonwealth agencies.

Section 503. Appeals officer.

(

 

a) Commonwealth agencies and local agencies. - Except as provided in subsection (d)

, the Office of

Open Records established under section 1310 shall designate an appeals officer under section 1101

 

(a)( 2)

for

all:

(

 

1)

Commonwealth agencies; and

(

 

2)

local agencies.

(

 

b) Judicial agencies. -

A judicial agency shall designate an appeals officer to hear appeals under Chapter 11.

(

 

c) Legislative agencies.

-

(

 

1) Except as set forth in paragraph (2)

, the Legislative Reference Bureau shall designate an appeals officer

to hear appeals under Chapter 11 for all legislative agencies.

(

 

2)

Each of the following shall designate an appeals officer to hear appeals under Chapter 11:

(

 

i)

The Senate.

(

 

ii)

The House of Representatives.

Pennsylvania's New Right-To-Know Law

 

9

(

 

d) Law enforcement records and Statewide officials.

-

(

 

1)

The Attorney General, State Treasurer and Auditor General shall each designate an appeals officer to

hear appeals under Chapter 11.

(

 

2)

The district attorney of a county shall designate one or more appeals officers to hear appeals under

Chapter 11 relating to access to criminal investigative records in possession of a local agency of that

county. The appeals officer designated by the district attorney shall determine if the record requested

is a criminal investigative record.

Section 504. Regulations and policies.

(

 

a) Authority. -

An agency may promulgate regulations and policies necessary for the agency to implement

this act. The Office of Open Records may promulgate regulations relating to appeals involving a

Commonwealth agency or local agency.

(

 

b) Posting. -

The following information shall be posted at each agency and, if the agency maintains an

Internet website, on the agency

 

'

s Internet website:

(

 

1) Contact information for the open-

records officer.

(

 

2)

Contact information for the Office of Open Records or other applicable appeals officer.

(

 

3)

A form which may be used to file a request.

(

 

4)

Regulations, policies and procedures of the agency relating to this act.

Section 505. Uniform form.

(

 

a) Commonwealth and local agencies. -

The Office of Open Records shall develop a uniform form

which shall be accepted by all Commonwealth and local agencies in addition to any form used by the

agency to file a request under this act. The uniform form shall be published in the Pennsylvania Bulletin

and on the Office of Open Record

 

'

s Internet website.

(

 

b) Judicial agencies. -

A judicial agency or the Administrative Office of Pennsylvania Courts may develop

a form to request financial records or may accept a form developed by the Office of Open Records.

(

 

c) Legislative agencies. -

A legislative agency may develop a form to request legislative records or may

accept the form developed by the Office of Open Records.

Section 506. Requests.

(

 

a) Disruptive requests.

-

(

 

1)

An agency may deny a requester access to a record if the requester has made repeated requests for that

same record and the repeated requests have placed an unreasonable burden on the agency.

(

 

2)

A denial under this subsection shall not restrict the ability to request a different record.

(

 

b) Disaster or potential damage.

-

(

 

1)

An agency may deny a requester access:

(

 

i)

when timely access is not possible due to fire, flood or other disaster; or

(

 

ii)

to historical, ancient or rare documents, records, archives and manuscripts when access may, in the

professional judgment of the curator or custodian of records, cause physical damage or irreparable

harm to the record.

(

 

2)

To the extent possible, the contents of a record under this subsection shall be made accessible to a

requester even when the record is physically unavailable.

(

 

c) Agency discretion. -

An agency may exercise its discretion to make any otherwise exempt record

accessible for inspection and copying under this chapter, if all of the following apply:

Pennsylvania's New

 

10

Right-To-Know Law

(

 

1)

Disclosure of the record is not prohibited under any of the following:

(

 

i)

Federal or State law or regulation.

(

 

ii)

Judicial order or decree.

(

 

2)

The record is not protected by a privilege.

(

 

3)

The agency head determines that the public interest favoring access outweighs any individual, agency or

public interest that may favor restriction of access.

(

 

d) Agency possession.

-

(

 

1)

A public record that is not in the possession of an agency but is in the possession of a party with whom

the agency has contracted to perform a governmental function on behalf of the agency, and which

directly relates to the governmental function and is not exempt under this act, shall be considered a

public record of the agency for purposes of this act.

(

 

2)

Nothing in this act shall be construed to require access to any other record of the party in possession of

the public record.

(

 

3)

A request for a public record in possession of a party other than the agency shall be submitted to the

open records officer of the agency. Upon a determination that the record is subject to access under

this act, the open records officer shall assess the duplication fee established under section 1307

 

(b)

and

upon collection shall remit the fee to the party in possession of the record if the party duplicated the

record.

Section 507. Retention of records.

Nothing in this act shall be construed to modify, rescind or supersede any record retention policy or

disposition schedule of an agency established pursuant to law, regulation, policy or other directive.

CHAPTER 7 PROCEDURE

Section 701. Access.

(

 

a) General rule. -

Unless otherwise provided by law, a public record, legislative record or financial record

shall be accessible for inspection and duplication in accordance with this act. A record being provided to a

requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be

provided in the medium in which it exists. Public records, legislative records or financial records shall be

available for access during the regular business hours of an agency.

(

 

b) Construction. -

Nothing in this act shall be construed to require access to any computer either of an

agency or individual employee of an agency.

Section 702. Requests.

Agencies may fulfill verbal, written or anonymous verbal or written requests for access to records under this

act. If the requester wishes to pursue the relief and remedies provided for in this act, the request for

access to records must be a written request.

Section 703. Written requests.

A written request for access to records may be submitted in person, by mail, by e

 

-

mail, by facsimile or, to the

extent provided by agency rules, any other electronic means. A written request must be addressed to the

open

 

-

records officer designated pursuant to section 502. Employees of an agency shall be directed to

forward requests for records to the open

 

-

records officer. A written request should identify or describe the

records sought with sufficient specificity to enable the agency to ascertain which records are being

requested and shall include the name and address to which the agency should address its response. A

written request need not include any explanation of the requester

 

'

s reason for requesting or intended use

of the records unless otherwise required by law.

Pennsylvania's New Right-To-Know Law

 

11

Section 704. Electronic access.

(

 

a) General rule. -

In addition to the requirements of section 701, an agency may make its records available

through any publicly accessible electronic means.

(

 

b) Response.

-

(

 

1)

In addition to the requirements of section 701, an agency may respond to a request by notifying the

requester that the record is available through publicly accessible electronic means or that the agency

will provide access to inspect the record electronically.

(

 

2)

If the requester is unwilling or unable to access the record electronically, the requester may, within 30

days following receipt of the agency notification, submit a written request to the agency to have the

record converted to paper. The agency shall provide access to the record in printed form within five

days of the receipt of the written request for conversion to paper.

Section 705. Creation of record.

When responding to a request for access, an agency shall not be required to create a record which does not

currently exist or to compile, maintain, format or organize a record in a manner in which the agency does

not currently compile, maintain, format or organize the record.

Section 706. Redaction.

If an agency determines that a public record, legislative record or financial record contains information which

is subject to access as well as information which is not subject to access, the agency

 

'

s response shall grant

access to the information which is subject to access and deny access to the information which is not

subject to access. If the information which is not subject to access is an integral part of the public record,

legislative record or financial record and cannot be separated, the agency shall redact from the record the

information which is not subject to access, and the response shall grant access to the information which is

subject to access. The agency may not deny access to the record if the information which is not subject to

access is able to be redacted. Information which an agency redacts in accordance with this subsection

shall be deemed a denial under Chapter 9.

Section 707. Production of certain records.

(

 

a) General rule. -

If, in response to a request, an agency produces a record that is not a public record,

legislative record or financial record, the agency shall notify any third party that provided the record to

the agency, the person that is the subject of the record and the requester.

(

 

b) Requests for trade secrets. -

An agency shall notify a third party of a request for a record if the third

party provided the record and included a written statement signed by a representative of the third party

that the record contains a trade secret or confidential proprietary information.

Notification shall be provided within five business days of receipt of the request for the record. The third

party shall have five business days from receipt of notification from the agency to provide input on the

release of the record. The agency shall deny the request for the record or release the record within ten

business days of the provision of notice to the third party and shall notify the third party of the decision.

(

 

c) Transcripts.

-

(

 

1)

Prior to an adjudication becoming final, binding and nonappealable, a transcript of an administrative

proceeding shall be provided to a requester by the agency stenographer or a court reporter, in

accordance with agency procedure or an applicable contract.

(

 

2)

Following an adjudication becoming final, binding and nonappealable, a transcript of an administrative

proceeding shall be provided to a requester in accordance with the duplication rates established in

section 1307

 

(b)

.

Pennsylvania's New

 

12

Right-To-Know Law

Section 708. Exceptions for public records.

(

 

a) Burden of proof.

-

(

 

1)

The burden of proving that a record of a Commonwealth agency or local agency is exempt from public

access shall be on the Commonwealth agency or local agency receiving a request by a preponderance

of the evidence.

(

 

2)

The burden of proving that a legislative record is exempt from public access shall be on the legislative

agency receiving a request by a preponderance of the evidence.

(

 

3)

The burden of proving that a financial record of a judicial agency is exempt from public access shall be

on the judicial agency receiving a request by a preponderance of the evidence.

(

 

b) Exceptions. - Except as provided in subsections (c) and (d)

, the following are exempt from access by a

requester under this act:

(

 

1)

A record the disclosure of which:

(

 

i)

would result in the loss of Federal or State funds by an agency or the Commonwealth; or

(

 

ii)

would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or

the personal security of an individual.

(

 

2)

A record maintained by an agency in connection with the military, homeland security, national defense,

law enforcement or other public safety activity that if disclosed would be reasonably likely to

jeopardize or threaten public safety or preparedness or public protection activity or a record that is

designated classified by an appropriate Federal or State military authority.

(

 

3)

A record, the disclosure of which creates a reasonable likelihood of endangering the safety or the

physical security of a building, public utility, resource, infrastructure, facility or information storage

system, which may include:

(

 

i)

documents or data relating to computer hardware, source files, software and system networks that

could jeopardize computer security by exposing a vulnerability in preventing, protecting against,

mitigating or responding to a terrorist act;

(

 

ii)

lists of infrastructure, resources and significant special events, including those defined by the

Federal Government in the National Infrastructure Protections, which are deemed critical due to

their nature and which result from risk analysis; threat assessments; consequences assessments;

antiterrorism protective measures and plans; counterterrorism measures and plans; and security

and response needs assessments; and

(

 

iii)

building plans or infrastructure records that expose or create vulnerability through disclosure of

the location, configuration or security of critical systems, including public utility systems,

structural elements, technology, communication, electrical, fire suppression, ventilation, water,

wastewater, sewage and gas systems.

(

 

4)

A record regarding computer hardware, software and networks, including administrative or technical

records, which, if disclosed, would be reasonably likely to jeopardize computer security.

(

 

5) A record of an individual'

s medical, psychiatric or psychological history or disability status, including an

evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests;

enrollment in a health care program or program designed for participation by persons with

disabilities, including vocation rehabilitation, workers

 

'

compensation and unemployment

compensation; or related information that would disclose individually identifiable health information.

(

 

6) (i)

The following personal identification information:

(

 

A) A record containing all or part of a person's Social Security number; driver'

s license number;

personal financial information; home, cellular or personal telephone numbers; personal email

addresses; employee number or other confidential personal identification number.

Pennsylvania's New Right-To-Know Law

 

13

(

 

B) A spouse'

s name; marital status, beneficiary or dependent information.

(

 

C)

The home address of a law enforcement officer or judge.

(

 

ii)

Nothing in this paragraph shall preclude the release of the name, position, salary, actual

compensation or other payments or expenses, employment contract, employment

 

-

related

contract or agreement and length of service of a public official or an agency employee.

(

 

iii)

An agency may redact the name or other identifying information relating to an individual

performing an undercover or covert law enforcement activity from a record.

(

 

7)

The following records relating to an agency employee:

(

 

i)

A letter of reference or recommendation pertaining to the character or qualifications of an

identifiable individual, unless it was prepared in relation to the appointment of an individual to

fill a vacancy in an elected office or an appointed office requiring Senate confirmation.

(

 

ii)

A performance rating or review.

(

 

iii)

The result of a civil service or similar test administered by a Commonwealth agency, legislative

agency or judicial agency. The result of a civil service or similar test administered by a local agency

shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of

individuals who obtained a passing score on a test administered by a local agency may be

disclosed.

(

 

iv)

The employment application of an individual who is not hired by the agency.

(

 

v)

Workplace support services program information.

(

 

vi)

Written criticisms of an employee.

(

 

vii)

Grievance material, including documents related to discrimination or sexual harassment.

(

 

viii)

Information regarding discipline, demotion or discharge contained in a personnel file. This

subparagraph shall not apply to the final action of an agency that results in demotion or discharge.

(

 

ix)

An academic transcript.

(

 

8) (i)

A record pertaining to strategy or negotiations relating to labor relations or collective bargaining

and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract

or agreement between the parties in a collective bargaining procedure.

(

 

ii)

In the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an

exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the

opinion. This subparagraph shall not apply to the final award or order of the arbitrator in a dispute

or grievance procedure.

(

 

9)

The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or

amendment thereto prepared by or for an agency.

(

 

10) (i)

A record that reflects:

(

 

A)

The internal, predecisional deliberations of an agency, its members, employees or officials or

predecisional deliberations between agency members, employees or officials and members,

employees or officials of another agency, including predecisional deliberations relating to a

budget recommendation, legislative proposal, legislative amendment, contemplated or

proposed policy or course of action or any research, memos or other documents used in the

predecisional deliberations.

(

 

B)

The strategy to be used to develop or achieve the successful adoption of a budget, legislative

proposal or regulation.

Pennsylvania's New

 

14

Right-To-Know Law

(

 

ii) Subparagraph (i)( A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to open meetings)

in

a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not otherwise exempt from access

under this act and which is presented to a quorum for deliberation in accordance with 65 Pa.C.S.

Ch. 7 shall be a public record.

(

 

iii)

This paragraph shall not apply to a written or Internet application or other document that has

been submitted to request Commonwealth funds.

(

 

iv)

This paragraph shall not apply to the results of public opinion surveys, polls, focus groups,

marketing research or similar effort designed to measure public opinion.

(

 

11)

A record that constitutes or reveals a trade secret or confidential proprietary information.

(

 

12)

Notes and working papers prepared by or for a public official or agency employee used solely for that

official

 

's or employee'

s own personal use, including telephone message slips, routing slips and other

materials that do not have an official purpose.

(

 

13)

Records that would disclose the identity of an individual who lawfully makes a donation to an agency

unless the donation is intended for or restricted to providing remuneration or personal tangible

benefit to a named public official or employee of the agency, including lists of potential donors

compiled by an agency to pursue donations, donor profile information or personal identifying

information relating to a donor.

(

 

14)

Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works in progress,

research

 

-

related material and scholarly correspondence of a community college or an institution of the

State System of Higher Education or a faculty member, staff employee, guest speaker or student

thereof.

(

 

15) (i)

Academic transcripts

(

 

ii)

Examinations, examination questions, scoring keys or answers to examinations. This subparagraph

shall include licensing and other examinations relating to the qualifications of an individual and to

examinations given in primary and secondary schools and institutions of higher education.

(

 

16)

A record of an agency relating to or resulting in a criminal investigation, including:

(

 

i)

Complaints of potential criminal conduct other than a private criminal complaint.

(

 

ii)

Investigative materials, notes, correspondence, videos and reports.

(

 

iii)

A record that includes the identity of a confidential source or the identity of a suspect who has not

been charged with an offense to whom confidentiality has been promised.

(

 

iv)

A record that includes information made confidential by law or court order.

(

 

v)

Victim information, including any information that would jeopardize the safety of the victim.

(

 

vi)

A record that, if disclosed, would do any of the following:

(

 

A)

Reveal the institution, progress or result of a criminal investigation, except the filing of

criminal charges.

(

 

B)

Deprive a person of the right to a fair trial or an impartial adjudication.

(

 

C)

Impair the ability to locate a defendant or codefendant.

(

 

D) Hinder an agency'

s ability to secure an arrest, prosecution or conviction.

(

 

E)

Endanger the life or physical safety of an individual.

This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102

(

 

relating to definitions)

and utilized or maintained by the Pennsylvania State Police, local, campus,

transit or port authority police department or other law enforcement agency or in a traffic report

except as provided under 75 Pa.C.S. § 3754

 

(b) (relating to accident prevention investigations)

.

Pennsylvania's New Right-To-Know Law

 

15

(

 

17)

A record of an agency relating to a noncriminal investigation, including:

(

 

i)

Complaints submitted to an agency.

(

 

ii)

Investigative materials, notes, correspondence and reports.

(

 

iii)

A record that includes the identity of a confidential source, including individuals subject to the act

of December 12, 1986

 

(P.L.1559, No.169)

, known as the Whistleblower Law.

(

 

iv)

A record that includes information made confidential by law.

(

 

v)

Work papers underlying an audit.

(

 

vi)

A record that, if disclosed, would do any of the following:

(

 

A)

Reveal the institution, progress or result of an agency investigation, except the imposition of a

fine or civil penalty, the suspension, modification or revocation of a license, permit,

registration, certification or similar authorization issued by an agency or an executed

settlement agreement unless the agreement is determined to be confidential by a court.

(

 

B)

Deprive a person of the right to an impartial adjudication.

(

 

C)

Constitute an unwarranted invasion of privacy.

(

 

D) Hinder an agency'

s ability to secure an administrative or civil sanction.

(

 

E)

Endanger the life or physical safety of an individual.

(

 

18) (i)

Records or parts of records, except time response logs, pertaining to audio recordings, telephone or

radio transmissions received by emergency dispatch personnel, including 911 recordings.

(

 

ii)

This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if the agency or

a court determines that the public interest in disclosure outweighs the interest in nondisclosure.

(

 

19)

DNA and RNA records.

(

 

20)

An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination

or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print,

including a photograph or videotape of the body or any portion of the body of a deceased person at

the scene of death or in the course of a postmortem examination or autopsy taken or made by or

caused to be taken or made by the coroner or medical examiner. This exception shall not limit the

reporting of the name of the deceased individual and the cause and manner of death.

(

 

21) (i)

Draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency.

(

 

ii)

Minutes of an executive session and any record of discussions held in executive session.

(

 

22) (i)

The contents of real estate appraisals, engineering or feasibility estimates, environmental reviews,

audits or evaluations made for or by an agency relative to the following:

(

 

A)

The leasing, acquiring or disposing of real property or an interest in real property.

(

 

B)

The purchase of public supplies or equipment included in the real estate transaction.

(

 

C)

Construction projects.

(

 

ii)

This paragraph shall not apply once the decision is made to proceed with the lease, acquisition or

disposal of real property or an interest in real property or the purchase of public supply or

construction project.

(

 

23)

Library and archive circulation and order records of an identifiable individual or groups of individuals.

(

 

24)

Library archived and museum materials, or valuable or rare book collections or documents contributed

by gift, grant, bequest or devise, to the extent of any limitations imposed by the donor as a condition

of the contribution.

Pennsylvania's New

 

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Right-To-Know Law

(

 

25)

A record identifying the location of an archeological site or an endangered or threatened plant or

animal species if not already known to the general public.

(

 

26)

A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to

the award of the contract or prior to the opening and rejection of all bids; financial information of a

bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the

bidder

 

's or offeror'

s economic capability; or the identity of members, notes and other records of

agency proposal evaluation committees established under 62 Pa.C.S. § 513

 

(

relating to competitive

sealed proposals

 

)

.

(

 

27)

A record or information relating to a communication between an agency and its insurance carrier,

administrative service organization or risk management office. This paragraph shall not apply to a

contract with an insurance carrier, administrative service organization or risk management office or to

financial records relating to the provision of insurance.

(

 

28)

A record or information:

(

 

i)

identifying an individual who applies for or receives social services; or

(

 

ii)

relating to the following:

(

 

A)

the type of social services received by an individual;

(

 

B) an individual'

s application to receive social services, including a record or information related

to an agency decision to grant, deny, reduce or restrict benefits, including a quasi

 

-

judicial

decision of the agency and the identity of a caregiver or others who provide services to the

individual; or

(

 

C) eligibility to receive social services, including the individual'

s income, assets, physical or mental

health, age, disability, family circumstances or record of abuse.

(

 

29)

Correspondence between a person and a member of the General Assembly and records accompanying

the correspondence which would identify a person that requests assistance or constituent services.

This paragraph shall not apply to correspondence between a member of the General Assembly and a

principal or lobbyist under 65 Pa.C.S. Ch. 13A

 

(relating to lobbyist disclosure)

.

(

 

30)

A record identifying the name, home address or date of birth of a child 17 years of age or younger.

(

 

c) Financial records. - The exceptions set forth in subsection (b)

shall not apply to financial records, except

that an agency may redact that portion of a financial record protected under subsection

 

(b)( 1), (2) , (3) , (4)

,

(

 

5), (6) , (16) OR (17)

. An agency shall not disclose the identity of an individual performing an undercover or

covert law enforcement activity.

(

 

d) Aggregated data. - The exceptions set forth in subsection (b)

shall not apply to aggregated data

maintained or received by an agency, except for data protected under subsection

 

(b)( 1), (2) , (3) , (4) or (5)

.

(

 

e) Construction. -

In determining whether a record is exempt from access under this section, an agency shall

consider and apply each exemption separately.

CHAPTER 9 AGENCY RESPONSE

Section 901. General rule.

Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine

if the record requested is a public record, legislative record or financial record and whether the agency has

possession, custody or control of the identified record, and to respond as promptly as possible under the

circumstances existing at the time of the request. All applicable fees shall be paid in order to receive

access to the record requested. The time for response shall not exceed five business days from the date

the written request is received by the open

 

-

records officer for an agency. If the agency fails to send the

response within five business days of receipt of the written request for access, the written request for

access shall be deemed denied.

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Section 902. Extension of time.

(

 

a) Determination. - Upon receipt of a written request for access, the open-

records officer for an agency

shall determine if one of the following applies:

(

 

1)

the request for access requires redaction of a record in accordance with section 706;

(

 

2)

the request for access requires the retrieval of a record stored in a remote location;

(

 

3)

a timely response to the request for access cannot be accomplished due to bona fide and specified

staffing limitations;

(

 

4)

a legal review is necessary to determine whether the record is a record subject to access under this act;

(

 

5) the requester has not complied with the agency'

s policies regarding access to records;

(

 

6)

the requester refuses to pay applicable fees authorized by this act; or

(

 

7)

the extent or nature of the request precludes a response within the required time period.

(

 

b) Notice.

-

(

 

1) Upon a determination that one of the factors listed in subsection (a) applies, the open-

records officer

shall send written notice to the requester within five business days of receipt of the request for access

under subsection

 

(a)

.

(

 

2)

The notice shall include a statement notifying the requester that the request for access is being

reviewed, the reason for the review, a reasonable date that a response is expected to be provided and

an estimate of applicable fees owed when the record becomes available. If the date that a response is

expected to be provided is in excess of 30 days, following the five business days allowed for in section

901, the request for access shall be deemed denied unless the requester has agreed in writing to an

extension to the date specified in the notice.

(

 

3)

If the requester agrees to the extension, the request shall be deemed denied on the day following the

date specified in the notice if the agency has not provided a response by that date.

Section 903. Denial.

If an agency

 

'

s response is a denial of a written request for access, whether in whole or in part, the denial shall

be issued in writing and shall include:

(

 

1)

A description of the record requested.

(

 

2)

The specific reasons for the denial, including a citation of supporting legal authority.

(

 

3)

The typed or printed name, title, business address, business telephone number and signature of the

open

 

-

records officer on whose authority the denial is issued.

(

 

4)

Date of the response.

(

 

5)

The procedure to appeal the denial of access under this act.

Section 904. Certified copies.

If an agency

 

'

s response grants a request for access, the agency shall, upon request, provide the requester with a

certified copy of the record if the requester pays the applicable fees under section 1307.

Section 905. Record discard.

If an agency response to a requester states that copies of the requested records are available for delivery at the

office of an agency and the requester fails to retrieve the records within 60 days of the agency

 

'

s response,

the agency may dispose of any copies which have not been retrieved and retain any fees paid to date.

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CHAPTER 11. APPEAL OF AGENCY DETERMINATION

Section 1101. Filing of appeal.

(

 

a) Authorization.

-

(

 

1)

If a written request for access to a record is denied or deemed denied, the requester may file an appeal

with the Office of Open Records or judicial, legislative or other appeals officer designated under

section 503

 

(d) within 15 business days of the mailing date of the agency'

s response or within 15

business days of a deemed denial. The appeal shall state the grounds upon which the requester asserts

that the record is a public record, legislative record or financial record and shall address any grounds

stated by the agency for delaying or denying the request.

(

 

2) Except as provided in section 503(d )

, in the case of an appeal of a decision by a Commonwealth agency

or local agency, the Office of Open Records shall assign an appeals officer to review the denial.

(

 

b) Determination.

-

(

 

1)

Unless the requester agrees otherwise, the appeals officer shall make a final determination which shall

be mailed to the requester and the agency within 30 days of receipt of the appeal filed under

subsection

 

(a)

.

(

 

2)

If the appeals officer fails to issue a final determination within 30 days, the appeal is deemed denied.

(

 

3)

Prior to issuing a final determination, a hearing may be conducted. The determination by the appeals

officer shall be a final order. The appeals officer shall provide a written explanation of the reason for

the decision to the requester and the agency.

(

 

c) Direct interest.

-

(

 

1)

A person other than the agency or requester with a direct interest in the record subject to an appeal

under this section may, within 15 days following receipt of actual knowledge of the appeal but no later

than the date the appeals officer issues an order, file a written request to provide information or to

appear before the appeals officer or to file information in support of the requester

 

's or agency'

s

position.

(

 

2) The appeals officer may grant a request under paragraph (1)

if:

(

 

i)

no hearing has been held;

(

 

ii)

the appeals officer has not yet issued its order; and

(

 

iii)

the appeals officer believes the information will be probative.

(

 

3)

Copies of the written request shall be sent to the agency and the requester.

Section 1102. Appeals officers.

(

 

a) Duties. -

An appeals officer designated under section 503 shall do all of the following:

(

 

1) Set a schedule for the requester and the open-

records officer to submit documents in support of their

positions.

(

 

2)

Review all information filed relating to the request. The appeals officer may hold a hearing. A decision

to hold or not to hold a hearing is not appealable. The appeals officer may admit into evidence

testimony, evidence and documents that the appeals officer believes to be reasonably probative and

relevant to an issue in dispute. The appeals officer may limit the nature and extent of evidence found

to be cumulative.

(

 

3)

Consult with agency counsel as appropriate.

(

 

4)

Issue a final determination on behalf of the Office of Open Records or other agency.

(

 

b) Procedures. -

The Office of Open Records, a judicial agency, a legislative agency, the Attorney General,

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Auditor General, State Treasurer or district attorney may adopt procedures relating to appeals under this

chapter.

(

 

1) If an appeal is resolved without a hearing, 1 Pa. Code Pt. II (

relating to general rules of administrative

practice and procedure

 

)

does not apply except to the extent that the agency has adopted these

chapters in its regulations or rules under this subsection.

(

 

2)

If a hearing is held, 1 Pa. Code Pt. II shall apply unless the agency has adopted regulations, policies or

procedures to the contrary under this subsection.

(

 

3)

In the absence of a regulation, policy or procedure governing appeals under this chapter, the appeals

officer shall rule on procedural matters on the basis of justice, fairness and the expeditious resolution

of the dispute.

CHAPTER 13. JUDICIAL REVIEW

Section 1301. Commonwealth agencies, legislative agencies and judicial agencies.

(

 

a) General rule. -

Within 30 days of the mailing date of the final determination of the appeals officer

relating to a decision of a Commonwealth agency, a legislative agency or a judicial agency issued under

section 1101

 

(b)

or the date a request for access is deemed denied, a requester or the agency may file a

petition for review or other document as might be required by rule of court with the Commonwealth

Court. The decision of the court shall contain findings of fact and conclusions of law based upon the

evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.

(

 

b) Stay. -

A petition for review under this section shall stay the release of documents until a decision under

subsection

 

(a)

is issued.

Section 1302. Local agencies.

(

 

a) General rule. -

Within 30 days of the mailing date of the final determination of the appeals officer

relating to a decision of a local agency issued under section 1101

 

(b)

or of the date a request for access is

deemed denied, a requester or local agency may file a petition for review or other document as required

by rule of court with the court of common pleas for the county where the local agency is located. The

decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a

whole. The decision shall clearly and concisely explain the rationale for the decision.

(

 

b) Stay. -

A petition for review under this section shall stay the release of documents until a decision under

subsection

 

(a)

is issued.

Section 1303. Notice and records.

(

 

a) Notice. -

An agency, the requester and the Office of Open Records or designated appeals officer shall be

served notice of actions commenced in accordance with section 1301 or 1302 and shall have an

opportunity to respond in accordance with applicable court rules.

(

 

b) Record on appeal. - The record before a court shall consist of the request, the agency'

s response, the

appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the

appeals officer.

Section 1304. Court costs and attorney fees.

(

 

a) Reversal of agency determination. -

If a court reverses the final determination of the appeals officer

or grants access to a record after a request for access was deemed denied, the court may award reasonable

attorney fees and costs of litigation or an appropriate portion thereof to a requester if the court finds

either of the following:

(

 

1)

the agency receiving the original request willfully or with wanton disregard deprived the requester of

access to a public record subject to access or otherwise acted in bad faith under the provisions of this

act; or

(

 

2)

the exemptions, exclusions or defenses asserted by the agency in its final determination were not based

on a reasonable interpretation of law.

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(

 

b) Sanctions for frivolous requests or appeals. -

The court may award reasonable attorney fees and

costs of litigation or an appropriate portion thereof to an agency or the requester if the court finds that

the legal challenge under this chapter was frivolous.

(

 

c) Other sanctions. -

Nothing in this act shall prohibit a court from imposing penalties and costs in

accordance with applicable rules of court.

Section 1305. Civil penalty.

(

 

a) Denial of access. - A court may impose a civil penalty of not more than $

1,500 if an agency denied

access to a public record in bad faith.

(

 

b) Failure to comply with court order. -

An agency or public official who does not promptly comply

with a court order under this act is subject to a civil penalty of not more than

 

$

500 per day until the

public records are provided.

Section 1306. Immunity.

(

 

a) General rule. -

Except as provided in sections 1304 and 1305 and other statutes governing the release of

records, no agency, public official or public employee shall be liable for civil penalties resulting from

compliance or failure to comply with this act.

(

 

b) Schedules. -

No agency, public official or public employee shall be liable for civil or criminal damages or

penalties under this act for complying with any written public record retention and disposition schedule.

Section 1307. Fee limitations.

(

 

a) Postage. -

Fees for postage may not exceed the actual cost of mailing.

(

 

b) Duplication.

-

(

 

1)

Fees for duplication by photocopying, printing from electronic media or microfilm, copying onto

electronic media, transmission by facsimile or other electronic means and other means of duplication

shall be established:

(

 

i)

by the Office of Open Records, for Commonwealth agencies and local agencies;

(

 

ii)

by each judicial agency; and

(

 

iii)

by each legislative agency.

(

 

2)

The fees must be reasonable and based on prevailing fees for comparable duplication services provided

by local business entities.

(

 

3)

Fees for local agencies may reflect regional price differences.

(

 

4)

The following apply to complex and extensive data sets, including geographic information systems or

integrated property assessment lists.

(

 

i)

Fees for copying may be based on the reasonable market value of the same or closely related data

sets.

(

 

ii) Subparagraph (i)

shall not apply to:

(

 

A)

a request by an individual employed by or connected with a newspaper or magazine of general

circulation, weekly newspaper publication, press association or radio or television station, for

the purpose of obtaining information for publication or broadcast; or

(

 

B)

a request by a nonprofit organization for the conduct of educational research.

(

 

iii) Information obtained under subparagraph (ii) shall be subject to paragraphs (1) , (2) and (3)

.

(

 

c) Certification. -

An agency may impose reasonable fees for official certification of copies if the

certification is at the behest of the requester and for the purpose of legally verifying the public record.

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21

(

 

d) Conversion to paper. -

If a record is only maintained electronically or in other nonpaper media,

duplication fees shall be limited to the lesser of the fee for duplication on paper or the fee for duplication

in the original media as provided by subsection

 

(b)

unless the requester specifically requests for the record

to be duplicated in the more expensive medium.

(

 

e) Enhanced electronic access. -

If an agency offers enhanced electronic access to records in addition to

making the records accessible for inspection and duplication by a requester as required by this act, the

agency may establish user fees specifically for the provision of the enhanced electronic access, but only to

the extent that the enhanced electronic access is in addition to making the records accessible for

inspection and duplication by a requester as required by this act. The user fees for enhanced electronic

access may be a flat rate, a subscription fee for a period of time, a per

 

-

transaction fee, a fee based on the

cumulative time of system access or any other reasonable method and any combination thereof. The user

fees for enhanced electronic access must be reasonable, must be approved by the Office of Open Records

and may not be established with the intent or effect of excluding persons from access to records or

duplicates thereof or of creating profit for the agency.

(

 

f) Waiver of fees. -

An agency may waive the fees for duplication of a record, including, but not limited to,

when:

(

 

1)

the requester duplicates the record; or

(

 

2)

the agency deems it is in the public interest to do so.

(

 

g) Limitations. -

Except as otherwise provided by statute, no other fees may be imposed unless the agency

necessarily incurs costs for complying with the request, and such fees must be reasonable. No fee may be

imposed for an agency

 

'

s review of a record to determine whether the record is a public record, legislative

record or financial record subject to access in accordance with this act.

(

 

h) Prepayment. -

Prior to granting a request for access in accordance with this act, an agency may require

a requester to prepay an estimate of the fees authorized under this section if the fees required to fulfill

the request are expected to exceed

 

$

100.

Section 1308. Prohibition.

A policy or regulation adopted under this act may not include any of the following:

(

 

1)

A limitation on the number of records which may be requested or made available for inspection or

duplication.

(

 

2)

A requirement to disclose the purpose or motive in requesting access to records.

Section 1309. Practice and procedure.

The provisions of 2 Pa.C.S.

 

(relating to administrative law and procedure)

shall not apply to this act unless

specifically adopted by regulation or policy.

Section 1310. Office of Open Records.

(

 

a) Establishment. -

There is established in the Department of Community and Economic Development

an Office of Open Records.

The office shall do all of the following:

(

 

1)

Provide information relating to the implementation and enforcement of this act.

(

 

2)

Issue advisory opinions to agencies and requesters.

(

 

3)

Provide annual training courses to agencies, public officials and public employees on this act and 65

Pa.C.S. Ch. 7

 

(relating to open meetings)

.

(

 

4)

Provide annual, regional training courses to local agencies, public officials and public employees.

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(

 

5)

Assign appeals officers to review appeals of decisions by Commonwealth agencies or local agencies,

except as provided in section 503

 

(d)

, filed under section 1101 and issue orders and opinions. The office

shall employ or contract with attorneys to serve as appeals officers to review appeals and, if necessary,

to hold hearings on a regional basis under this act. Each appeals officer must comply with all of the

following:

(

 

i)

Complete a training course provided by the Office of Open Records prior to acting as an appeals

officer.

(

 

ii)

If a hearing is necessary, hold hearings regionally as necessary to ensure access to the remedies

provided by this act.

(

 

iii) Comply with the procedures under section 1102(b )

.

(

 

6)

Establish an informal mediation program to resolve disputes under this act.

(

 

7)

Establish an Internet website with information relating to this act, including information on fees,

advisory opinions and decisions and the name and address of all open records officers in this

Commonwealth.

(

 

8)

Conduct a biannual review of fees charged under this act.

(

 

9)

Annually report on its activities and findings to the Governor and the General Assembly. The report

shall be posted and maintained on the Internet website established under paragraph

 

(7)

.

(

 

b) Executive director. -

Within 90 days of the effective date of this section, the Governor shall appoint

an executive director of the office who shall serve for a term of six years. Compensation shall be set by the

Executive Board established under section 204 of the act of April 9, 1929

 

(P.L.177, No.175)

, known as The

Administrative Code of 1929. The executive director may serve no more than two terms.

(

 

c) Limitation. -

The executive director shall not seek election nor accept appointment to any political

office during his tenure as executive director and for one year thereafter.

(

 

d) Staffing. -

The executive director shall appoint attorneys to act as appeals officers and additional

clerical, technical and professional staff as may be appropriate and may contract for additional services as

necessary for the performance of the executive director

 

'

s duties. The compensation of attorneys and

other staff shall be set by the Executive Board. The appointment of attorneys shall not be subject to the

act of October 15, 1980

 

(P.L.950, No.164)

, known as the Commonwealth Attorneys Act.

(

 

e) Duties. -

The executive director shall ensure that the duties of the Office of Open Records are carried

out and shall monitor cases appealed to the Office of Open Records.

(

 

f) Appropriation. -

The appropriation for the office shall be in a separate line item and shall be under the

jurisdiction of the executive director.

CHAPTER 15. STATE-RELATED INSTITUTIONS

Section 1501. Definition.

As used in this chapter,

 

"State -related institution"

means any of the following:

(

 

1)

Temple University.

(

 

2)

The University of Pittsburgh.

(

 

3)

The Pennsylvania State University.

(

 

4)

Lincoln University.

Section 1502. Reporting.

No later than May 30 of each year, a State

 

-related institution shall file with the Governor'

s Office, the General

Assembly, the Auditor General and the State Library the information set forth in section 1503.

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Section 1503. Contents of report.

The report required under section 1502 shall include the following:

(

 

1) Except as provided in paragraph (4)

, all information required by Form 990 or an equivalent form, of the

United States Department of the Treasury, Internal Revenue Service, entitled the Return of

Organization Exempt From Income Tax, regardless of whether the State

 

-

related institution is

required to file the form by the Federal Government.

(

 

2) The salaries of all officers and directors of the State-

related institution.

(

 

3) The highest 25 salaries paid to employees of the institution that are not included under paragraph (2)

.

(

 

4)

The report shall not include information relating to individual donors.

Section 1504. Copies and posting.

A State

 

-related institution shall maintain, for at least seven years, a copy of the report in the institution'

s

library and shall provide free access to the report on the institution

 

'

s Internet website.

CHAPTER 17. STATE CONTRACT INFORMATION

Section 1701. Submission and retention of contracts.

(

 

a) General rule. -

Whenever any Commonwealth agency, legislative agency or judicial agency shall enter

into any contract involving any property, real, personal or mixed of any kind or description or any

contract for personal services where the consideration involved in the contract is

 

$

5,000 or more, a copy

of the contract shall be filed with the Treasury Department within ten days after the contract is fully

executed on behalf of the Commonwealth agency, legislative agency or judicial agency or otherwise

becomes an obligation of the Commonwealth agency, legislative agency or judicial agency. The provisions

of this chapter shall not apply to contracts for services protected by a privilege. The provisions of this

chapter shall not apply to a purchase order evidencing fulfillment of an existing contract but shall apply to

a purchase order evidencing new obligations. The following shall apply:

(

 

1)

Each Commonwealth agency, legislative agency and judicial agency shall submit contracts in a form and

structure mutually agreed upon by the Commonwealth agency, legislative agency or judicial agency

and the State Treasurer.

(

 

2)

The Treasury Department may require each Commonwealth agency, legislative agency or judicial

agency to provide a summary with each contract, which shall include the following:

(

 

i)

Date of execution.

(

 

ii)

Amount of the contract.

(

 

iii)

Beginning date of the contract.

(

 

iv)

End date of the contract, if applicable.

(

 

v)

Name of the agency entering into the contract.

(

 

vi)

The name of all parties executing the contract.

(

 

vii)

Subject matter of the contract.

Each agency shall create and maintain the data under this paragraph in an ASCII

 

-

delimited text file,

spreadsheet file or other file provided by Treasury Department regulation.

(

 

b) Retention. - Every contract filed pursuant to subsection (a)

shall remain on file with the Treasury

Department for a period of not less than four years after the end date of the contract.

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(

 

c) Accuracy. -

Each Commonwealth agency, legislative agency and judicial agency is responsible for

verifying the accuracy and completeness of the information that it submits to the State Treasurer. The

contract provided to the Treasury Department pursuant to this chapter shall be redacted in accordance

with applicable provisions of this act by the agency filing the contract to the Treasury Department.

(

 

d) Applicability. -

The provisions of this act shall not apply to copies of contracts submitted to the

Treasury Department, the Office of Auditor General or other agency for purposes of audits and warrants

for disbursements under section 307, 401, 402 or 403 of the act of April 9, 1929

 

(P.L.343, No.176)

, known

as The Fiscal Code.

Section 1702. Public availability of contracts.

(

 

a) General rule. -

The Treasury Department shall make each contract filed pursuant to section 1701

available for public inspection either by posting a copy of the contract on the Treasury Department

 

'

s

publicly accessible Internet website or by posting a contract summary on the department

 

'

s publicly

accessible Internet website.

(

 

b) Posting. -

The Treasury Department shall post the information received pursuant to this chapter in a

manner that allows the public to search contracts or contract summaries by the categories enumerated in

section 1701

 

(a)( 2)

.

(

 

c) Request to review or receive copy of contract. -

The Treasury Department shall maintain a page on

its publicly accessible Internet website that includes instructions on how to review a contract on the

Internet website.

(

 

d) Paper copy. -

A paper copy of a contract may be requested from the agency that executed the contract

in accordance with this act.

CHAPTER 31. MISCELLANEOUS PROVISIONS

Section 3101. Applicability.

This Act shall apply to requests for information made after December 31, 2008.

Section 3101.1. Relation to other laws.

If the provisions of this act regarding access to records conflict with any other federal or state law, the

provisions of this act shall not apply.

Section 3101.2. Severability.

All provisions of this act are severable.

Section 3102. Repeals.

Repeals are as follows:

(

 

1)

The General Assembly declares as follows:

(

 

i) The repeal under paragraph (2)( i)

is necessary to effectuate Chapter 17.

(

 

ii) The repeals under paragraph (2)( ii) and (iii )

are necessary to effectuate this act.

(

 

2)

The following acts and parts of acts are repealed:

(

 

i) Section 1104 of the act of April 9, 1929 (P.L.177, No.175)

, known as The Administrative Code of

1929.

(

 

ii) The act of June 21, 1957 (P.L.390, No.212), referred to as the Right-to -

Know Law.

(

 

iii)

62 Pa.C.S. § 106.

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25

Section 3103. References.

Notwithstanding 1 PA.C.S. § 1937

 

(B) , a reference in a statute or regulation to the act of June 21, 1957 (

P.L.390,

No.212

 

), referred to as the Right-to -

Know Law, shall be deemed a reference to this act.

Section 3104. Effective date.

This act shall take effect as follows:

(

 

1)

The following provisions shall take effect immediately:

(

 

i)

Sections 101, 102 and 1310.

(

 

ii)

This section.

(

 

2) Chapters 15 and 17 and sections 3102(1 )(I) and 3102(2 )(I)

shall take effect July 1, 2008.

(

 

3)

The remainder of this act shall take effect January 1, 2009.

###