- The request and appeals process has been substantially streamlined to enable requesters to reach judicial review, in most cases, within a roughly two-month period.
- All records are presumed “public.”
- Agencies bear the burden of proving the applicability of one of 30 new statutory exemptions to the requested information.
- The new law removes substantial ambiguity as to the specific records exempt from disclosure, which should expedite the request and appeals process.
- Appeals procedures are, in part, determined by the type of agency from which records are sought.
Substantive revisions to Pennsylvania’s Right to Know Law will take effect Jan. 1, 2009. The thoroughly revised law establishes for the first time an Office of Open Records with the Department of Community and Economic Development to administer the new law. The law also fundamentally changes how citizens access public records by:
- Switching the presumption regarding what is or is not a public record
- Streamlining the process for requesting a record and appealing a denial
- Adding 30 new, specific exemptions permitting agencies to withhold certain records
Some of these key changes are outlined below. In summary, the revised law should make the request and appeals process easier and more efficient, as well as remove ambiguity regarding which records are exempt from disclosure.
The new Right to Know Law presumes government records are public documents that should be available upon request, unless they fall into one of 30 new statutory exemptions. Under the new law, the agency bears the burden of establishing the application of an exemption. However, the new law does not change the requester’s burden of proving that the requested documents were generated by an agency subject to the law.
Under the new Right to Know Law, requests may be written or spoken. However, if the requester wants to take advantage of the procedural protections of the new law, the request must be in writing. Like the current version of the law, the new law permits the written request to be made in person, by facsimile, by mail, or by electronic means, if permitted by the agency. The request also must identify the records sought with sufficient specificity so that the agency can determine which records are being requested. As is true under the old Right to Know Law, the requester need not explain the reason the records are being requested. The new law, however, requires the agency to appoint an open-records officer who will receive requests and who must be identified on the agency’s website. Agency employees receiving requests must forward them to the open-records officer.
Agency’s Required Response to a Request
The new law requires the agency to make a good faith effort to determine if the requested document is a public record. Unlike the old Right to Know Law, an agency must respond to a written request for records within five business days, regardless of whether it is a non-commonwealth or commonwealth agency. If the agency fails to respond within five business days, the request is deemed denied. However, the response period may be extended to 30 days in certain circumstances, provided the agency supplies the requester of written notice of the extension within five business days. The factors considered in determining whether to permit an extension are:
- The request requires redaction
- The request requires retrieval of a record stored in a remote place
- Timely response to the request cannot be made because of staffing limitations
- Legal review is necessary to determine whether the record is subject to access under the new law
- The requester has not complied with the agency’s policies regarding access to records
- The requester refuses to pay any applicable fees authorized by the new law
- The extent or nature of the request precludes a response within the five- day period
If the agency wishes to use the 30-day extension, it must grant or deny the request within that period. Failure to respond is deemed a denial. Alternatively, the agency and requester may agree to a response period greater than 30 days, though failure by the agency to respond within that period is also deemed a denial.
When an agency denies access to records, it must issue a written denial. Like the old law, a written denial under the new law must include certain provisions. Under the new law, these provisions are: (1) a description of the record requested; (2) specific reasons for denial, including citation to legal authority; (3) the typed or printed name, title, business address, and business telephone number of the open-records officer under whose authority the request is denied; (4) the date of the response; and (5) the procedure for appealing the denial.
The requester may begin the appeals process within 15 days of the mailing date of the written denial or the date the request is deemed denied. Appeals must state the grounds upon which the requester asserts the record is public, and address the grounds stated by the agency in denying or delaying the request. Unlike previous versions of the law, the appeals process will differ depending on the agency from which the requester has attempted to access documents. Where an appeal may be filed also depends on the type of agency from which the requester is appealing:
- Appeals from commonwealth or local agencies are made to an appeals officer appointed by the newly formed Office of Open Records.
- Commonwealth Agencies include any office, department, authority, board, multistate agency or commission of the executive branch, independent agencies and state-affiliated entities. Specific Commonwealth Agencies include the Governor’s Office, the Office of Attorney General, the Department of the Auditor General, and the Treasury Department. Finally, this category also includes any organization established by the Constitution of Pennsylvania, a statute, or executive order, and which performs or is intended to perform an essential government function.
- Local Agencies include any political subdivision, intermediate unit, charter school, cyber charter school, or public trade or vocational school, in addition to any local, intergovernmental, regional or municipal agency, authority, council, board, commission, or similar governmental agency.
- Appeals from Judicial or Legislative agencies are made to the appeals officer designated by the agency.
- Judicial Agencies include a court of the commonwealth or any other entity or office of the judicial system.
- Legislative Agency includes the state Senate and House, as well as various committees and commissions formed under the state legislature.
Rulings must be made within 30 days from the date the appeal is received. Also, the appeals officer must set a schedule for receiving documents supporting the positions of the requester and the agency’s open-records officer. An appeal not decided within 30 days is deemed denied.
The requester may appeal for judicial review from the appeals officer’s decision. The specific court where judicial review may be sought again depends on the type of agency. First, decisions by Commonwealth Agencies, Legislative Agencies or Judicial Agencies must be made to the Commonwealth Court within 30 days of either (1) the mailing date of the final decision, or (2) the date the appeal is deemed denied. Second, decisions by Local Agencies are appealed to the Court of Common pleas for the county where the local agency is located. The record before the court in either case consists of the request, the agency’s response, the appeal, the hearing transcript (if one exists), and the final written decision of the appeals officer.
Statutory Exemptions To Disclosure
Unlike previous versions, the new law contains 30 specific exemptions permitting the agency to deny access to requested documents. In many instances, the exemptions track the case law established under previous versions of the Right to Know Law. However, some of the exemptions depart from the traditional categories of documents exempt from disclosure under previous versions of the law.
Exemptions to disclosure common to both the old and new laws include:
- Police investigations, both complete and on-going
- Complete and on-going investigations conducted by an agency
- The disclosure of documents that would be reasonably likely to result in a substantial and demonstrable risk of physical harm to someone, or to someone’s personal security
- Personal records containing private information, such as a person’s social security number, driver’s license, or personal financial information
- Trade secrets or confidential proprietary information
- Records, the disclosure of which would result in the loss of federal or state funds by the agency or commonwealth
Records representing predecisional deliberations or ones used in predecisional deliberations are exempt from disclosure
Changed & New:
- The new law specifically exempts records regarding negotiations or strategy involving labor relations or collective bargaining and arbitration proceedings. The old law and related case law did not specifically address collective bargaining or labor negotiations.
- The new law likely expands the types of personal information covered by the old law’s exemptions. For example, DNA and RNA records are specifically exempt from the new law’s disclosure obligations. The new law also includes specific exemptions covering a range of documents that may have fit under the old law’s exemption for documents that would prejudice or impair a person’s reputation or personal security. For example, letters of reference, performance ratings and reviews, civil service test results, academic transcripts, unpublished manuscripts, and library records are all exempted from the disclosure obligations of the new law.
- Autopsy reports are exempt from disclosure under the new law. Case law arising under the old law permitted disclosure of autopsy reports.
- Archived library and museum materials, valuable rare book collections, and documents contributed by gift, grant, bequest or devise, to the extent of any limitations imposed by the donor as a condition of the contribution, are exempt from disclosure.
- Records identifying the location of archeological sites and endangered or threatened plants or animals are exempt from disclosure, unless already public.
- Under the old law, it was unclear whether 911 recordings were exempt from disclosure. The new law, however, exempts 911 recordings and transcripts from disclosure, unless a court or agency determines public interest outweighs nondisclosure.
- The new law specifically allows agencies to deny requests that might compromise public safety. The exemptions extend to physical infrastructure and computer hardware and infrastructure.
- Draft bills, resolutions, regulations, statements of policy, and management directives prepared by or for an agency are exempt from disclosure.
The new law allows a court to award attorney’s fees in the same manner as the old law. A court may award attorney’s fees when it either reverses an appeals officer’s final determination or grants access where access was denied. Additionally, the court must find that:
- The agency willfully or with wanton disregard deprived requesters of access to a public record, or otherwise acted in bad faith
- The exemptions, exclusions or defenses relied on by the agency were not based on a reasonable interpretation of law
The new law also allows the court to impose a $1,500 civil penalty if the agency denies a record in bad faith. Additionally, the new law raises the daily civil penalty for failing to obey a court’s disclosure order to $500. The penalty accrues until the agency provides the requested public records.
The new Right to Know Law encompasses both substantial and procedural departures from previous versions. Substantively, the new law establishes much clearer boundaries between what is presumed to be public and what Pennsylvania agencies are permitted to withhold. Procedurally, the new law represents an even more radical departure from its predecessors by streamlining the process to permit requesters to more rapidly appeal agency decisions and seek judicial review.