PENNSYLVANIA NEWSPAPER ASSOCIATION GUIDE TO THE NEW OPEN RECORDS ACT

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					                     PENNSYLVANIA NEWSPAPER ASSOCIATION
                        GUIDE TO THE NEW OPEN RECORDS ACT
        The Pennsylvania Right to Know Act requires government agencies to provide copies of public records to
        Pennsylvania residents.

        On June 29, 2002, Governor Schweiker signed the amendments to the Right to Know Act into law. The
        amendments will take effect on December 26, 2002. This Guide is intended to summarize the changes and to
        review what will remain the same in the Act. The most significant changes to the Act involve the agency’s
        response to a records request and the appeals procedure. The definition of what is a “public record” has not
        changed.

        Please call our Legal Hotline at (717) 703-3080 or contact your own counsel if you have a specific legal issue
        or question.

WHAT HAS CHANGED
Definition of “Agency”
         • The definition of “Agency” has been expanded to specifically include any office within the executive
             branch of the Commonwealth and the State System of Higher Education. The definition of agency
             now includes the following:

                  Any office, department, board or commission of the executive branch of Commonwealth
                  government, any political subdivision of the Commonwealth, the Pennsylvania Turnpike
                  Commission, the State System of Higher Education or any State or municipal authority or
                  similar organization which is created by statute and performs essential government functions.

        •         The definition of “Agency” still does not include the General Assembly or the Pennsylvania Courts.

Making a Request for a Public Record
       • The Act now clarifies a number of issues relating to making a request for records. Many of these simply
           confirm current practice.

Verbal and Anonymous Requests /Written Requests
        • An agency may, but is not required to, fulfill a verbal and/or an anonymous request.
        • An agency can still require a request to be in writing. In addition, you must make a written request if you
           plan to avail yourself of the remedies provided for in the Act.

Mechanics of Making a Request
       • Written requests can be made in person, by mail, by facsimile, or by electronic means if permitted by
           agency rules.
       • Written requests must be made to the agency head or other person designated by the agency.
       • The request must identify the records sought with sufficient particularity.
       • The request must include a name and address where the agency should send/direct its response.

Reason for the Request/Intended Use of Documents
        • You do not need to give a reason for the request, nor do you have to explain how you intend to use the
            records. An agency cannot deny a request based on how you plan to use the document.

Agency’s Response to Request
       • The most significant changes in the Act involve the procedure that an agency must follow in responding
           to a records request. The Act requires an agency to make a good faith effort to determine whether a
           requested record is a public record and to respond to a request as quickly as possible.

        Timing of Response
        • Commonwealth Agencies must respond to a records request within 10 business days.
        • Non-Commonwealth (local) agencies must respond within 5 business days.

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        •    If an agency fails to send its response within the required number of days, the “response” is treated as a
             denial under the Act (see Appealing an Agency Decision, below).
        •    The agency must respond within the time limits set forth above by doing one of the following:

                             1.     Providing copies of the records;
                             2.     Issuing a Denial, which must include:
                                         a. A description of the record requested;
                                         b. The specific reason for the denial, including a citation of supporting legal
                                              authority;
                                         c. The name, title, address, telephone number, and signature of the public
                                              official or employee who issued the denial;
                                         d. The date of the response; and
                                         e. The procedure to appeal the denial.
                             3.     Responding in writing to explain that an exception applies. If the agency claims
                                    an “exception” to the time requirements, it must issue a response (within the time
                                    limits) explaining that the request is being reviewed, the reason for the review, and a
                                    reasonable date that a response is expected to be provided. This “response” is only
                                    permitted where one of the following exceptions applies:
                                         a. The request requires redaction (see below);
                                         b. The request requires the agency to retrieve documents that are stored in a
                                              remote location;
                                         c. The agency cannot respond due to “bona fide and specified” staffing
                                              limitations;
                                         d. A legal review is necessary to determine whether the record is a public
                                              record;
                                         e. The requester has not complied with the agency’s policies regarding access
                                              to records; or
                                         f. The requester refuses to pay applicable fees.

                                  Even if one of the above exceptions applies, the anticipated “final” response date must
                                  be within 40 days (Commonwealth Agencies) or 35 days (Non-Commonwealth
                                  Agencies) of the original request. If the response is expected to or actually does take
                                  longer than 35 or 40 days, the agency’s response is treated as a denial (see b., above).

        Redaction.
        •   If a document contains public and non public information, the agency must redact (strike out) the non-
           public information and produce the remainder of the document. The matter that is redacted is treated as a
           “denial” (see b., above).

Form of Document/Electronic Access
        • An agency must make a record available in the medium requested if the record exists in that medium.
           Otherwise, the agency must make the record available in the medium in which it exists.
        • Agencies can make documents available electronically.
        •  If a record is maintained electronically only, an agency must make a paper copy if requested.
        • Agencies are not required to “create” a public record if none exists.
        • An agency is not required to “compile, maintain, format or organize” a public record in a manner in
           which it does not already do so.

Certified Copies
         • An agency must provide certified copies, if requested, but can charge an additional fee (see Fees for
            Copies, below).

Fees for Copies
         • Duplication fees must be reasonable and based on prevailing fees for similar duplication services
            provided by local business entities.
         • Certified copies may cost more (but still 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 subject to access under the Act.
         • An agency may require prepayment where fees are expected to exceed $100.


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Appealing an Agency Decision

        Agency Level
        • Exceptions. If a written request is denied or deemed denied, the requester may file Exceptions with the
           head of the agency within 15 business days of the mailing date of the agency’s response or deemed
           denial. These Exceptions: 1) must include your basis for claiming that the records are public records;
           and 2) must address any agency arguments used to delay or deny the request.
        • Final Determination. The agency must make a “final determination” on the Exceptions within 30 days
           of the mailing date of the Exceptions (unless all parties agree to a longer period).
        • Hearings. The agency can hold a hearing on the issue. If it determines that the denial was correct, it
           must provide a written explanation to the requester.

        Court Level
        • Going Directly to Court. If you are denied access by a Commonwealth Agency, you must first file
           Exceptions (before you can proceed to Commonwealth Court). If you are denied access by a Non-
           Commonwealth Agency, you can appeal directly to Court.
        • Commonwealth Agency Denial. Must appeal to Commonwealth Court within 30 days of a final
           determination.
        • Non-Commonwealth Agency Denial. Must appeal to Common Pleas Court or District Justice within 30
           days of denial or final determination.

Court Costs and Attorneys’ Fees
       • If the court finds that the requester or the agency has acted in bad faith in pursuing an appeal or refusing
            access to records, it can award reasonable attorneys’ fees and/or court costs to the prevailing party.

Penalties
        •    Summary Offense. An agency or public official who intentionally violates the act commits a summary
             offense and can be fined $300 plus costs of prosecution.
        •    Civil Penalties. An agency or public official who does not promptly comply with a court order under the
             Act is subject to a civil penalty of up to $300 per day until the records are provided.

Immunity
      •      Except as provided above, no agency, public official or public employee will be liable for civil or
             criminal damages or penalties resulting from compliance or non-compliance with the Act.

WHAT HASN’T CHANGED
The definition of “Public Record” remains the same under the Act. The Right to Know Act defines certain types of
documents as public records. The following types of documents are considered public records unless they fall into one
of the excluded categories, as set forth in the Act:

    •   Minutes, orders or decisions by an agency fixing the personal or property rights, privileges, immunities,
        duties or obligations of any person or group of persons.

    •   Accounts, vouchers or contracts dealing with the receipt or disbursement of funds or the acquisition, use or
        disposal of services or supplies, materials, equipment or other property (includes canceled checks and cellular
        telephone bills paid by the county).

    •   Reports, communications or other papers pertaining to safety and health in industrial plants.

    •   Records of a conviction for a criminal act.

What the Right to Know Act specifically excludes from the definition of a public record:

    Even if a document meets the above definition for public records, it is not available to the public if it falls
within one of the following categories:

    •   Reports, communications or other papers which, if published, would disclose the institution, progress or
        result of an agency investigation; or

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    •   Reports, documents, materials, exhibits, pleadings, records, memoranda or other paper which:

        1.   Would operate to the prejudice or impairment of a person’s reputation or personal security;
        2.   Would cause the Commonwealth, a political subdivision or commission, or a state or municipal authority
             to lose Federal funds; or
        3.   May not be published or made accessible because of state law or order or decree of the court (for
             example, the federal Privacy Act of 1974 prohibits publication of social security numbers).

The Pennsylvania Courts have determined the public or non-public nature of many other types of records as well.

For more information on what is (and is not) a public record, please see the Pennsylvania Newspaper
Association website at www.pa-news.org.




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