PRINTER'S NO. 2905

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 2072 Session of 2007


        INTRODUCED BY MAHONEY, GRELL, SHAPIRO, DeWEESE, McCALL, JOSEPHS,
           BENNINGHOFF, SAMUELSON, KING, HARKINS, GIBBONS, SAYLOR,
           DALLY, KAUFFMAN, KORTZ, LEACH, DePASQUALE, GALLOWAY, BRENNAN,
           LONGIETTI, R. TAYLOR, BENNINGTON, McILHATTAN, TRUE, KULA,
           TANGRETTI, R. STEVENSON, STEIL, BOYD, CARROLL, DALEY,
           SCAVELLO, MELIO, ARGALL, PETRONE, GEORGE, HORNAMAN,
           M. O'BRIEN, FREEMAN, FRANKEL, REED, SURRA, RAMALEY, MANN,
           LEVDANSKY, THOMAS, FABRIZIO, MANDERINO, KOTIK, HARHAI,
           MUSTIO, GRUCELA, HANNA, McILVAINE SMITH, J. EVANS, COHEN,
           CALTAGIRONE, HESS, ROAE, HELM AND D. O'BRIEN,
           NOVEMBER 21, 2007

        REFERRED TO COMMITTEE ON STATE GOVERNMENT, NOVEMBER 21, 2007

                                     AN ACT

     1  Providing for access to public information, for a designated
     2     open-records officer in each Commonwealth agency, local
     3     agency, judicial agency and legislative agency, for
     4     procedure, for appeal of agency determination, for judicial
     5     review and for an Office of Open Records Clearinghouse;
     6     imposing penalties; providing for reporting by State-related
     7     institutions; requiring the posting of certain State contract
     8     information on the Internet; and making related repeals.

     9                         TABLE OF CONTENTS
    10  Chapter 1.  Preliminary Provisions
    11  Section 101.  Short title.
    12  Section 102.  Definitions.
    13  Chapter 3.  Requirements and Prohibitions
    14  Section 301.  Commonwealth agencies.
    15  Section 302.  Local agencies.
    16  Section 303.  Legislative agencies.


     1  Section 304.  Judicial agencies.
     2  Section 305.  Presumption.
     3  Section 306.  Nature of document.
     4  Chapter 5.  Access
     5  Section 501.  Scope of chapter.
     6  Section 502.  Open-records officer.
     7  Section 503.  Appeals officer.
     8  Section 504.  Regulations and policies.
     9  Section 505.  Uniform form.
    10  Section 506.  Requests.
    11  Section 507.  Retention of records.
    12  Chapter 7.  Procedure
    13  Section 701.  Access to public records.
    14  Section 702.  Requests.
    15  Section 703.  Written requests.
    16  Section 704.  Electronic access.
    17  Section 705.  Creation of record.
    18  Section 706.  Redaction.
    19  Section 707.  Production of certain records.
    20  Section 708.  Exceptions for public records.
    21  Chapter 9.  Agency Response
    22  Section 901.  General rule.
    23  Section 902.  Extension of time.
    24  Section 903.  Denial.
    25  Section 904.  Certified copies.
    26  Chapter 11.  Appeal of Agency Determination
    27  Section 1101.  Filing of appeal.
    28  Section 1102.  Appeals officers.
    29  Chapter 13.  Judicial Review
    30  Section 1301.  Commonwealth agencies, legislative agencies and
    20070H2072B2905                  - 2 -     

     1                 judicial agencies.
     2  Section 1302.  Local agencies.
     3  Section 1303.  Notice and records.
     4  Section 1304.  Court costs and attorney fees.
     5  Section 1305.  Penalties.
     6  Section 1306.  Immunity.
     7  Section 1307.  Fee limitations.
     8  Section 1308.  Prohibition.
     9  Section 1309.  Practice and procedure.
    10  Section 1310.  Office of Open Records Clearinghouse.
    11  Chapter 15.  State-Related Institutions
    12  Section 1501.  Definition.
    13  Section 1502.  Reporting.
    14  Section 1503.  Contents of report.
    15  Section 1504.  Copies and posting.
    16  Chapter 17.  State Contract Information
    17  Section 1701.  Submission and retention of contracts.
    18  Section 1702.  Public availability of contracts.
    19  Chapter 31.  Miscellaneous Provisions
    20  Section 3101.  Applicability.
    21  Section 3102.  Repeals.
    22  Section 3103.  Effective date.
    23     The General Assembly of the Commonwealth of Pennsylvania
    24  hereby enacts as follows:
    25                             CHAPTER 1
    26                       PRELIMINARY PROVISIONS
    27  Section 101.  Short title.
    28     This act shall be known and may be cited as the Right-to-Know
    29  Law.
    30  Section 102.  Definitions.
    20070H2072B2905                  - 3 -     

     1     The following words and phrases when used in this act shall
     2  have the meanings given to them in this section unless the
     3  context clearly indicates otherwise:
     4     "Agency."  A Commonwealth agency, a local agency, a judicial
     5  agency or a legislative agency.
     6     "Aggregated data."  A tabulation of data which relate to
     7  broad classes, groups or categories so that it is not possible
     8  to distinguish the properties of individuals within those
     9  classes, groups or categories.
    10     "Appeals officer."  As follows:
    11         (1)  For a Commonwealth agency or a local agency, the
    12     appeals officer designated under section 503(a).
    13         (2)  For a judicial agency, the individual designated
    14     under section 503(b).
    15         (3)  For a legislative agency, the individual designated
    16     under section 503(c).
    17     "Clearinghouse."  The Office of Open Records Clearinghouse
    18  established pursuant to the provisions of section 1310.
    19     "Commonwealth agency."  Any of the following:
    20         (1)  Any office, department, authority, board, multistate
    21     agency or commission of the executive branch; an independent
    22     agency; and a State-affiliated entity. The term includes:
    23             (i)  The Governor's Office.
    24             (ii)  The Office of Attorney General, the Department
    25         of the Auditor General and the Treasury Department.
    26             (iii)  A statutorily established organization which
    27         performs or is intended to perform an essential
    28         governmental function.
    29         (2)  The term does not include a judicial or legislative
    30     agency.
    20070H2072B2905                  - 4 -     

     1     "Confidential proprietary information."  Commercial or
     2  financial information received by an agency:
     3         (1)  which is privileged or confidential; and
     4         (2)  the disclosure of which would cause substantial harm
     5     to the competitive position of the person that submitted the
     6     information.
     7     "Financial record."  Includes:
     8         (1)  Any account, voucher or contract dealing with:
     9             (i)  the receipt or disbursement of funds by an
    10         agency; or
    11             (ii)  an agency's acquisition, use or disposal of
    12         services, supplies, materials, equipment or property.
    13         (2)  The salary or other payments or expenses paid to an
    14     officer or employee of an agency, including the name and
    15     title of the officer or employee.
    16         (3)  Results of a financial audit.
    17     "Homeland security."  Governmental actions designed to
    18  prevent, detect, respond to and recover from acts of terrorism,
    19  major disasters and other emergencies, whether natural or
    20  manmade. The term includes activities relating to the following:
    21         (1)  emergency preparedness and response, including
    22     preparedness and response activities by volunteer medical,
    23     police, emergency management, hazardous materials and fire
    24     personnel;
    25         (2)  intelligence activities;
    26         (3)  critical infrastructure protection;
    27         (4)  border security;
    28         (5)  ground, aviation and maritime transportation
    29     security;
    30         (6)  biodefense;
    20070H2072B2905                  - 5 -     

     1         (7)  detection of nuclear and radiological materials; and
     2         (8)  research on next-generation securities technologies.
     3     "Independent agency."  Any board, commission or other agency
     4  or officer of the Commonwealth, that is not subject to the
     5  policy supervision and control of the Governor. The term does
     6  not include a legislative or judicial agency.
     7     "Judicial agency."  A court of the Commonwealth or any other
     8  entity or office of the unified judicial system.
     9     "Legislative agency."  Any of the following:
    10         (1)  The Senate.
    11         (2)  Political party caucuses of the Senate.
    12         (3)  The House of Representatives.
    13         (4)  Political party caucuses of the House of
    14     Representatives.
    15         (5)  The Capitol Preservation Committee.
    16         (6)  The Center for Rural Pennsylvania.
    17         (7)  The Joint Legislative Air and Water Pollution
    18     Control and Conservation Committee.
    19         (8)  The Joint State Government Commission.
    20         (9)  The Legislative Budget and Finance Committee.
    21         (10)  The Legislative Data Processing Committee.
    22         (11)  The Independent Regulatory Review Commission.
    23         (12)  The Legislative Reference Bureau.
    24         (13)  The Local Government Commission.
    25         (14)  The Pennsylvania Commission on Sentencing.
    26     "Legislative record."  Any of the following relating to a
    27  legislative agency:
    28         (1)  A financial record.
    29         (2)  A bill or resolution that has been introduced and
    30     amendments offered thereto in committee or in legislative
    20070H2072B2905                  - 6 -     

     1     session, including resolutions to adopt or amend the rules of
     2     a chamber.
     3         (3)  Fiscal notes.
     4         (4)  A cosponsorship memorandum.
     5         (5)  The journal of a chamber.
     6         (6)  The minutes of a public committee meeting.
     7         (7)  The transcript of a public hearing when available.
     8         (8)  The record of attendance of members at a public
     9     committee meeting or a public hearing.
    10         (9)  The rules of a chamber.
    11         (10)  A record of all recorded votes taken in a public
    12     committee meeting or legislative session.
    13         (11)  Any administrative staff manuals or written
    14     policies.
    15         (12)  An audit prepared pursuant to the act of June 30,
    16     1970 (P.L.442, No.151) entitled, "An act implementing the
    17     provisions of Article VIII, section 10 of the Constitution of
    18     Pennsylvania, by designating the Commonwealth officers who
    19     shall be charged with the function of auditing the financial
    20     transactions after the occurrence thereof of the Legislative
    21     and Judicial branches of the government of the Commonwealth,
    22     establishing a Legislative Audit Advisory Commission, and
    23     imposing certain powers and duties on such commission."
    24         (13)  Final or annual reports required by law to be
    25     submitted to the General Assembly.
    26         (14)  Legislative Budget and Finance Committee reports.
    27         (15)  Marked calendars.
    28         (16)  A record communicating to an agency the official
    29     appointment or removal of a legislative appointee.
    30         (17)  A record communicating the resignation of a
    20070H2072B2905                  - 7 -     

     1     legislative appointee to the appointing authority.
     2     "Local agency."  Any of the following:
     3         (1)  Any political subdivision, intermediate unit,
     4     charter school or public trade or vocational school.
     5         (2)  Any local, intergovernmental, regional or municipal
     6     agency, authority, council, board, commission or similar
     7     governmental entity.
     8     "Personal financial information."  An individual's personal
     9  credit, charge or debit card information; bank account
    10  information; bank, credit or financial statements; account or
    11  PIN numbers and other information relating to an individual's
    12  personal finances.
    13     "Privilege."  The attorney-work product doctrine, the
    14  attorney-client privilege, the doctor-patient privilege or other
    15  privilege recognized by a court interpreting the laws of this
    16  Commonwealth.
    17     "Public record."  A record of a Commonwealth or local agency
    18  that:
    19         (1)  is not exempt under section 708;
    20         (2)  is not exempt from being disclosed under any other
    21     Federal or State law or regulation or judicial order or
    22     decree; or
    23         (3)  is not protected by a privilege.
    24     "Record."  Information, regardless of physical form or
    25  characteristics, that documents a transaction or activity of an
    26  agency and that is created, received or retained pursuant to law
    27  or in connection with a transaction, business or activity of the
    28  agency. The term includes a document, paper, letter, map, book,
    29  tape, photograph, film or sound recording, information stored or
    30  maintained electronically and a data-processed or image-
    20070H2072B2905                  - 8 -     

     1  processed document. The term includes a financial record, a
     2  legislative record and a public record.
     3     "Requester."  A person that is a resident of the United
     4  States and requests a record pursuant to this act. The term
     5  includes a political subdivision.
     6     "Response."  Access to a record or an agency's written notice
     7  to a requester granting, denying or partially granting and
     8  partially denying access to a record.
     9     "Social services."  Cash assistance and other welfare
    10  benefits, medical, mental and other health care services, drug
    11  and alcohol treatment, adoption services, vocational and
    12  occupational training, education services, counseling services,
    13  workers' compensation services and unemployment compensation
    14  services, foster care services and services for victims of
    15  crimes.
    16     "State-affiliated entity."  A Commonwealth authority or
    17  Commonwealth entity. The term includes the Pennsylvania Higher
    18  Education Assistance Agency, the Pennsylvania Housing Finance
    19  Agency, the Pennsylvania Municipal Retirement Board, the State
    20  System of Higher Education, a community college, the
    21  Pennsylvania Turnpike Commission, the Pennsylvania Public
    22  Utility Commission, the Pennsylvania Infrastructure Investment
    23  Authority, the State Public School Building Authority, the
    24  Pennsylvania Interscholastic Athletic Association and the
    25  Pennsylvania Educational Facilities Authority. The term does not
    26  include a State-related institution.
    27     "Terrorist act."  A violent or life-threatening act that
    28  violates the criminal laws of the United States or any state and
    29  appears to be intended to:
    30         (1)  intimidate or coerce a civilian population;
    20070H2072B2905                  - 9 -     

     1         (2)  influence the policy of a government; or
     2         (3)  affect the conduct of a government by mass
     3     destruction, assassination or kidnapping.
     4     "Trade secret."  Information, including a formula, drawing,
     5  pattern, compilation, including a customer list, program,
     6  device, method, technique or process that:
     7         (1)  derives independent economic value, actual or
     8     potential, from not being generally known to and not being
     9     readily ascertainable by proper means by other persons who
    10     can obtain economic value from its disclosure or use; and
    11         (2)  is the subject of efforts that are reasonable under
    12     the circumstances to maintain its secrecy.
    13  The term includes data processing software obtained by an agency
    14  under a licensing agreement prohibiting disclosure.
    15                             CHAPTER 3
    16                   REQUIREMENTS AND PROHIBITIONS
    17  Section 301.  Commonwealth agencies.
    18     (a)  Requirement.--A Commonwealth agency shall provide public
    19  records in accordance with this act.
    20     (b)  Prohibition.--A Commonwealth agency may not deny a
    21  requester access to a public record due to the intended use of
    22  the public record by the requester.
    23  Section 302.  Local agencies.
    24     (a)  Requirement.--A local agency shall provide public
    25  records in accordance with this act.
    26     (b)  Prohibition.--A local agency may not deny a requester
    27  access to a public record due to the intended use of the public
    28  record by the requester.
    29  Section 303.  Legislative agencies.
    30     (a)  Requirement.--A legislative agency shall provide
    20070H2072B2905                 - 10 -     

     1  legislative records in accordance with this act.
     2     (b)  Prohibition.--A legislative agency may not deny a
     3  requester access to a legislative record due to the intended use
     4  of the legislative record by the requester.
     5  Section 304.  Judicial agencies.
     6     (a)  Requirement.--A judicial agency shall provide financial
     7  records in accordance with this act.
     8     (b)  Prohibition.--A judicial agency may not deny a requester
     9  access to a financial record due to the intended use of the
    10  financial record by the requester.
    11  Section 305.  Presumption.
    12     (a)  Records in possession of Commonwealth or local agency.--
    13  A record in the possession of a Commonwealth agency or local
    14  agency shall be presumed to be a public record unless:
    15         (1)  the record is exempt under section 708;
    16         (2)  the record is protected by a privilege; or
    17         (3)  the record is exempt from disclosure under any other
    18     Federal or State law or regulation or judicial order or
    19     decree.
    20     (b)  Legislative records and financial records.--A
    21  legislative record in the possession of a legislative agency and
    22  a financial record in the possession of a judicial agency shall
    23  be presumed to be available to the public unless:
    24         (1)  the record is exempt under 708(c) or (d);
    25         (2)  the record is protected by a privilege; or
    26         (3)  the record is exempt from disclosure under any other
    27     Federal or State law or regulation or judicial order or
    28     decree.
    29  Section 306.  Nature of document.
    30     Nothing in this act shall supersede or modify the public or
    20070H2072B2905                 - 11 -     

     1  confidential nature of a record or document established in
     2  Federal or State statute or law, regulation or judicial order or
     3  decree.
     4                             CHAPTER 5
     5                               ACCESS
     6  Section 501.  Scope of chapter.
     7     This chapter applies to all agencies.
     8  Section 502.  Open-records officer.
     9     (a)  Establishment.--
    10         (1)  An agency shall designate an official or employee to
    11     act as the open-records officer.
    12         (2)  For a legislative agency other than the Senate or
    13     the House of Representatives, or a political party caucus of
    14     the Senate or the House of Representatives, the open-records
    15     officer designated by the Legislative Reference Bureau shall
    16     serve as the open-records officer.
    17     (b)  Functions.--
    18         (1)  The open-records officer shall receive requests
    19     submitted to the agency under this act, direct requests to
    20     other appropriate persons within the agency, track the
    21     agency's progress in responding to requests and issue interim
    22     and final responses under this act.
    23         (2)  Upon receiving a request for a public record,
    24     legislative record or financial record, the open-records
    25     officer shall do all of the following:
    26             (i)  Note the date of receipt on the written request.
    27             (ii)  Compute the day on which the five-day period
    28         under section 901 will expire and make a notation of that
    29         date on the written request.
    30             (iii)  Maintain an electronic or paper copy of a
    20070H2072B2905                 - 12 -     

     1         written request, including all documents submitted with
     2         the request until the request has been fulfilled. If the
     3         request is denied, the written request shall be
     4         maintained for 30 days or, if an appeal is filed, until a
     5         final determination is issued under section 1101(b) or
     6         the appeal is deemed denied.
     7             (iv)  Create a file for the retention of the original
     8         request, a copy of the response, a record of written
     9         communications with the requester and a copy of other
    10         communications.
    11  Section 503.  Appeals officer.
    12     (a)  Commonwealth agencies and local agencies.--Except as
    13  provided in subsection (d), the clearinghouse established under
    14  section 1310 shall designate an appeals officer under section
    15  1101(a)(2) for all:
    16         (1)  Commonwealth agencies; and
    17         (2)  local agencies.
    18     (b)  Judicial agencies.--A judicial agency shall designate an
    19  appeals officer to hear appeals under Chapter 11.
    20     (c)  Legislative agencies.--
    21         (1)  Except as set forth in paragraph (2), the
    22     Legislative Reference Bureau shall designate an appeals
    23     officer to hear appeals under Chapter 11 for all legislative
    24     agencies.
    25         (2)  Each of the following shall designate an appeals
    26     officer to hear appeals under Chapter 11:
    27             (i)  The Senate.
    28             (ii)  The House of Representatives.
    29             (iii)  A political party caucus of the Senate or the
    30         House of Representatives.
    20070H2072B2905                 - 13 -     

     1     (d)  Law enforcement records and Statewide officials.--
     2         (1)  The Attorney General, State Treasurer and Auditor
     3     General shall each designate an appeals officer to hear
     4     appeals under Chapter 11.
     5         (2)  The district attorney of a county shall designate an
     6     appeals officer to hear appeals under Chapter 11 relating to
     7     access to criminal investigative records in possession of a
     8     local agency of that county. The appeals officer designated
     9     by the district attorney shall determine if the record
    10     requested is a criminal investigative record.
    11  Section 504.  Regulations and policies.
    12     (a)  Authority.--An agency may promulgate regulations, rules
    13  or policies necessary for the agency to implement this act,
    14  consistent with directives of the clearinghouse. The
    15  clearinghouse may promulgate regulations relating to appeals
    16  involving a Commonwealth agency or local agency.
    17     (b)  Posting.--The following information shall be posted at
    18  each agency and, if the agency maintains an Internet website, on
    19  the agency's Internet website:
    20         (1)  Contact information for the open-records officer.
    21         (2)  Contact information for the clearinghouse or other
    22     applicable appeals officer.
    23         (3)  A form which may be used to file a request.
    24         (4)  Rules, regulations, policies and procedures of the
    25     agency relating to this act.
    26  Section 505.  Uniform form.
    27     (a)  Commonwealth agencies.--The clearinghouse shall develop
    28  a uniform form which shall be accepted by all Commonwealth and
    29  local agencies in addition to any form used by the agency to
    30  file a request under this act. The uniform form shall be
    20070H2072B2905                 - 14 -     

     1  published in the Pennsylvania Bulletin and on the
     2  clearinghouse's Internet website.
     3     (b)  Judicial agencies.--A judicial agency may develop a form
     4  to request financial records or may use a form developed by the
     5  Administrative Office of Pennsylvania Courts or the
     6  clearinghouse.
     7     (c)  Legislative agencies.--A legislative agency may develop
     8  a form to request legislative records or may use the form
     9  developed by the clearinghouse.
    10  Section 506.  Requests.
    11     (a)  Disruptive requests.--
    12         (1)  An agency may deny a requester access to a record if
    13     the requester has made repeated requests for that same record
    14     which requests have placed an unreasonable burden on the
    15     agency.
    16         (2)  A denial under this subsection shall not restrict
    17     the ability to request a different record.
    18     (b)  Disaster or potential damage.--
    19         (1)  An agency may deny a requester access:
    20             (i)  when timely access is not possible due to fire,
    21         flood or other disaster; or
    22             (ii)  to historical, ancient or rare documents,
    23         records, archives and manuscripts when access may, in the
    24         professional judgment of the curator or custodian of
    25         records, cause physical damage or irreparable harm to the
    26         record.
    27         (2)  To the extent possible, the contents of a record
    28     under this subsection shall be made accessible to a requester
    29     even when the record is physically unavailable.
    30     (c)  Agency discretion.--An agency may exercise its
    20070H2072B2905                 - 15 -     

     1  discretion to make any otherwise exempt record accessible for
     2  inspection and copying under this chapter, if all of the
     3  following apply:
     4         (1)  Disclosure of the record is not prohibited under any
     5     of the following:
     6             (i)  Federal or State law or regulation.
     7             (ii)  Judicial order or decree.
     8         (2)  The record is not protected by a privilege.
     9         (3)  The agency head determines that the public interest
    10     favoring access outweighs any individual, agency or public
    11     interest that may favor restriction of access.
    12     (d)  Agency possession.--
    13         (1)  A public record that is not in the possession of an
    14     agency but is in the possession of a party with whom the
    15     agency has contracted to perform a governmental function on
    16     behalf of the agency, and which directly relates to the
    17     governmental function and is not exempt under section 305,
    18     shall be considered a public record of the agency for
    19     purposes of this act.
    20         (2)  Nothing in this act shall be construed to require
    21     access to any other record of the party in possession of the
    22     public record.
    23         (3)  A request for a record in the possession of a party
    24     other than the agency shall be submitted to the open records
    25     officer of the agency. Upon a determination to grant the
    26     request, the open records officer shall assess the
    27     duplication fee established under section 1307(b) and upon
    28     collection shall remit the fee to the party in possession of
    29     the record if the party duplicated the record.
    30  Section 507.  Retention of records.
    20070H2072B2905                 - 16 -     

     1     Nothing in this act shall be construed to modify, rescind or
     2  supersede any record retention disposition schedule of an agency
     3  established pursuant to law, regulation, policy or other
     4  directive.
     5                             CHAPTER 7
     6                             PROCEDURE
     7  Section 701.  Access to public records.
     8     (a)  General rule.--Unless otherwise provided by law, a
     9  public record, legislative record or financial record shall be
    10  accessible for inspection and duplication in accordance with
    11  this act. A record being provided to a requester shall be
    12  provided in the medium requested if it exists in that medium;
    13  otherwise, it shall be provided in the medium in which it
    14  exists. Public records, legislative records or financial records
    15  shall be available for access during the regular business hours
    16  of an agency.
    17     (b)  Construction.--Nothing in this act shall be construed to
    18  require access to any computer of either an agency or individual
    19  employee of an agency.
    20  Section 702.  Requests.
    21     Agencies may fulfill informal verbal, written or anonymous
    22  verbal or written requests for access to records under this act.
    23  In the event that the requester wishes to pursue the relief and
    24  remedies provided for in this act, the requester must initiate
    25  such relief with a written request.
    26  Section 703.  Written requests.
    27     A written request for access to records may be submitted in
    28  person, by mail, by e-mail, by facsimile or, to the extent
    29  provided by agency rules, any other electronic means. A written
    30  request shall be addressed to the agency head or open-records
    20070H2072B2905                 - 17 -     

     1  officer designated pursuant to section 502. A written request
     2  should identify or describe the records sought with sufficient
     3  specificity to enable the agency to ascertain which records are
     4  being requested and shall include the name and address to which
     5  the agency should address its response. A written request need
     6  not include any explanation of the requester's reason for
     7  requesting or intended use of the records.
     8  Section 704.  Electronic access.
     9     (a)  General rule.--In addition to the requirements of
    10  section 701, an agency may make its records available through
    11  any publicly accessible electronic means.
    12     (b)  Response.--
    13         (1)  In addition to the requirements of section 701, an
    14     agency may respond to a request by notifying the requester
    15     that the record is available through publicly accessible
    16     electronic means or that the agency will provide access to
    17     inspect the record electronically.
    18         (2)  If the requester is unwilling or unable to access
    19     the record electronically, the requester may, within 30 days
    20     following receipt of the agency notification, submit a
    21     written request to the agency to have the record converted to
    22     paper. The agency shall provide the record in printed form
    23     within five days of the receipt of the written request for
    24     conversion to paper.
    25  Section 705.  Creation of record.
    26     When responding to a request for access, an agency shall not
    27  be required to create a record which does not currently exist or
    28  to compile, maintain, format or organize a record in a manner in
    29  which the agency does not currently compile, maintain, format or
    30  organize the record.
    20070H2072B2905                 - 18 -     

     1  Section 706.  Redaction.
     2     If an agency determines that a public record, legislative
     3  record or financial record contains information which is subject
     4  to access as well as information which is not subject to access,
     5  the agency's response shall grant access to the information
     6  which is subject to access and deny access to the information
     7  which is not subject to access. If the information which is not
     8  subject to access is an integral part of the public record,
     9  legislative record or financial record and cannot be separated,
    10  the agency shall redact from the record the information which is
    11  not subject to access, and the response shall grant access to
    12  the information which is subject to access. The agency may not
    13  deny access to the record if the information which is not
    14  subject to access is able to be redacted. Information which an
    15  agency redacts in accordance with this subsection shall be
    16  deemed a denial under Chapter 9.
    17  Section 707.  Production of certain records.
    18     (a)  General rule.--If, in response to a request, an agency
    19  produces a record that is not a public record, legislative
    20  record or financial record, the agency shall notify any third
    21  party that provided the record to the agency, the person that is
    22  the subject of the record and the requester.
    23     (b)  Requests for trade secrets.--An agency shall notify a
    24  third party of a request for a record if the third party
    25  provided the record and included a written statement signed by a
    26  representative of the third party that the record contains a
    27  trade secret or confidential proprietary information.
    28  Notification shall be provided within five business days of
    29  receipt of the request for the record. The third party shall
    30  have five business days from receipt of notification from the
    20070H2072B2905                 - 19 -     

     1  agency to provide input on the release of the record. The agency
     2  shall deny the request for the record or release the record
     3  within ten business days of the provision of notice to the third
     4  party and shall notify the third party of the decision.
     5     (c)  Transcripts of hearings and administrative
     6  proceedings.--Transcripts of hearings and administrative
     7  proceedings shall be deemed public records at the conclusion of
     8  the hearings and administrative proceedings. Nothing in this act
     9  shall prohibit a litigant or a party to a hearing or
    10  administrative proceeding or the legal representative of the
    11  litigant or party, from acquiring a full transcript of the
    12  hearing or administrative proceeding which shall not be subject
    13  to redaction prior to or after final adjudication. An agency may
    14  refer a litigant or a party to a hearing or administrative
    15  proceeding, or the legal representative of the litigant or
    16  party, to the court reporter or other transcriber to obtain a
    17  copy of the transcript if all of the following apply:
    18         (1)  The court reporter or transcriber prepared the
    19     transcript under contract with the agency.
    20         (2)  The court reporter or transcriber is able to make
    21     the transcripts available within a reasonable time and at a
    22     cost which is reasonable and customary within the court
    23     reporting industry.
    24         (3)  The name, address and telephone number of the court
    25     reporting or transcribing entity under contract with the
    26     agency is made available by the agency.
    27  Section 708.  Exceptions for public records.
    28     (a)  Burden of proof.--
    29         (1)  The burden of proving that a public record is exempt
    30     from public access shall be on the Commonwealth or local
    20070H2072B2905                 - 20 -     

     1     agency receiving a request by a preponderance of the
     2     evidence.
     3         (2)  The burden of proving that a legislative record is
     4     exempt from public access shall be on the legislative agency
     5     receiving a request, by a preponderence of the evidence.
     6         (3)  The burden of proving that a financial record of a
     7     judicial agency is exempt from public access shall be on the
     8     judicial agency receiving a request, by a preponderence of
     9     the evidence.
    10     (b)  Exceptions.--In the case of a public record, unless
    11  disclosure is otherwise required by law, the following are
    12  exempt from access by a requester under this act:
    13         (1)  A record the disclosure of which:
    14             (i)  would result in the loss of Federal or State
    15         funds by an agency or the Commonwealth; or
    16             (ii)  would be reasonably likely to result in a
    17         substantial and demonstrable risk of physical harm to an
    18         individual.
    19         (2)  A record maintained by an agency in connection with
    20     the military, homeland security, national defense, law
    21     enforcement or other public safety activity that if disclosed
    22     would be reasonably likely to jeopardize or threaten public
    23     safety or preparedness or public protection activity or a
    24     record that is designated classified by an appropriate
    25     Federal or State military authority.
    26         (3)  A record, the disclosure of which creates a
    27     reasonable likelihood of endangering the life, safety or the
    28     physical security of a building, public utility, resource,
    29     infrastructure, facility or information storage system, which
    30     may include:
    20070H2072B2905                 - 21 -     

     1             (i)  documents or data relating to computer hardware,
     2         source files, software and system networks that could
     3         jeopardize computer security by exposing a vulnerability
     4         in preventing, protecting against, mitigating or
     5         responding to a terrorist act;
     6             (ii)  lists of infrastructure, resources and
     7         significant special events, including those defined by
     8         the Federal Government in the National Infrastructure
     9         Protections, which are deemed critical due to their
    10         nature and which result from risk analysis; threat
    11         assessments; consequences assessments; antiterrorism
    12         protective measures and plans; counterterrorism measures
    13         and plans; and security and response needs assessments;
    14         and
    15             (iii)  building plans or infrastructure records that
    16         expose or create vulnerability through disclosure of the
    17         location, configuration or security of critical systems,
    18         including public utility systems, structural elements,
    19         technology, communication, electrical, fire suppression,
    20         ventilation, water, wastewater, sewage and gas systems.
    21         (4)  A record regarding computer hardware, software and
    22     networks, including administrative or technical records,
    23     which, if disclosed, would be reasonably likely to jeopardize
    24     computer security.
    25         (5)  A record of an individual's medical, psychiatric or
    26     psychological history or disability status, including
    27     evaluation, consultation, a prescription, diagnosis or
    28     treatment; results of tests, including drug tests; enrollment
    29     in a health care program or program designed for
    30     participation by persons with disabilities, including
    20070H2072B2905                 - 22 -     

     1     vocation rehabilitation, workers' compensation and
     2     unemployment compensation; or related information that would
     3     disclose individually identifiable health information.
     4         (6)  (i)  The following personal identification
     5         information:
     6                 (A)  A record containing all or part of an
     7             individual's Social Security number; driver's license
     8             number; personal financial information of an
     9             individual; telephone number or telephone record;
    10             personal e-mail address; employee number; other
    11             personal identification number.
    12                 (B)  A spouse's name; marital status, beneficiary
    13             or dependent information.
    14             (ii)  Nothing in this paragraph shall preclude the
    15         release of the name, position, salary, actual
    16         compensation or other payments or expenses, employment
    17         contract or agreement and length of service of a public
    18         official or an agency employee.
    19             (iii)  An agency may redact the name or other
    20         identifying information relating to an individual
    21         performing an undercover or covert law enforcement
    22         activity from a record.
    23         (7)  The following records relating to an agency
    24     employee:
    25             (i)  A letter of reference or recommendation
    26         pertaining to the character or qualifications of an
    27         identifiable individual, unless it was prepared in
    28         relation to the appointment of an individual to fill a
    29         vacancy in an elected office or an appointed office
    30         requiring Senate confirmation.
    20070H2072B2905                 - 23 -     

     1             (ii)  A performance rating or review.
     2             (iii)  The result of a civil service or similar test
     3         administered by a Commonwealth agency, legislative agency
     4         or judicial agency. The result of a civil service or
     5         similar test administered by a local agency shall not be
     6         disclosed if restricted by a collective bargaining
     7         agreement. Only test scores of individuals who obtained a
     8         passing score on a test administered by a local agency
     9         may be disclosed.
    10             (iv)  The employment application of an individual who
    11         is not hired by the agency.
    12             (v)  Workplace support services program information.
    13             (vi)  Written criticisms of an employee.
    14             (vii)  Grievance material, including documents
    15         related to discrimination or sexual harassment.
    16             (viii)  (A)  Information regarding discipline,
    17             demotion or discharge contained in a personnel file.
    18                 (B)  This subparagraph shall not apply to the
    19             final action of an agency that results in demotion or
    20             discharge.
    21         (8)  (i)  A record pertaining to strategy or negotiations
    22         relating to labor relations or collective bargaining or
    23         arbitration award.
    24             (ii)  This paragraph does not apply to any final or
    25         executed contract or agreement or arbitration award
    26         between the parties.
    27         (9)  The draft of a bill, resolution, regulation,
    28     statement of policy, management directive, ordinance or
    29     amendment thereto prepared by or for an agency.
    30         (10)  (i)  A record that reflects:
    20070H2072B2905                 - 24 -     

     1                 (A)  The internal, predecisional deliberations of
     2             an agency, its members, employees or officials or
     3             predecisional deliberations between agency members,
     4             employees or officials and members, employees or
     5             officials of another agency, including predecisional
     6             deliberations relating to a budget recommendation,
     7             legislative proposal, legislative amendment,
     8             contemplated or proposed policy or course of action
     9             or any research, memos or other documents used in the
    10             predecisional deliberations.
    11                 (B)  The strategy to be used to develop or
    12             achieve the successful adoption of a budget,
    13             legislative proposal or regulation.
    14             (ii)  This paragraph applies to:
    15                 (A)  The Governor's Office, the head of a
    16             Commonwealth agency and the staff of the Governor or
    17             agency.
    18                 (B)  The chief executive officer or governing
    19             body of a local agency, or a member or staff of the
    20             local agency prior to the presentation of the
    21             decision, policy, proposal or course of action to a
    22             quorum of the governing body.
    23             (iii)  This paragraph does not apply to a written
    24         application or other document used to request
    25         Commonwealth funds.
    26         (11)  A record that constitutes or reveals a trade secret
    27     or confidential proprietary information.
    28         (12)  Notes and working papers prepared by or for a
    29     public official or agency employee used solely for that
    30     official's or employee's own personal use, including
    20070H2072B2905                 - 25 -     

     1     telephone message slips, routing slips and other materials
     2     that do not have an official purpose.
     3         (13)  Records that would disclose the identity of an
     4     individual who lawfully makes a donation to an agency unless
     5     the donation is intended for or restricted to providing
     6     remuneration or personal tangible benefit to a named public
     7     official or employee of the agency, including lists of
     8     potential donors compiled by an agency to pursue donations,
     9     donor profile information or personal identifying information
    10     relating to a donor.
    11         (14)  Unpublished lecture notes, unpublished manuscripts,
    12     unpublished articles, creative works in progress, research-
    13     related material and scholarly correspondence of a community
    14     college or an institution of the State System of Higher
    15     Education or a faculty member, staff employee, guest speaker
    16     or student thereof.
    17         (15)  Examination questions, scoring keys or answers to
    18     an examination.
    19         (16)  A record of an agency relating to or resulting in a
    20     criminal investigation, including:
    21             (i)  Complaints of potential criminal conduct other
    22         than a private criminal complaint.
    23             (ii)  Investigative materials, notes, correspondence,
    24         videos and reports.
    25             (iii)  A record that includes the identity of a
    26         confidential source or the identity of a suspect who has
    27         not been charged with an offense to whom confidentiality
    28         has been promised.
    29             (iv)  A record that includes information made
    30         confidential by law or court order.
    20070H2072B2905                 - 26 -     

     1             (v)  Victim information, including any information
     2         that would jeopardize the safety of the victim.
     3             (vi)  A record that, if disclosed, would do any of
     4         the following:
     5                 (A)  Reveal the institution, progress or result
     6             of a criminal investigation, except the filing of
     7             criminal charges.
     8                 (B)  Deprive a person of the right to a fair
     9             trial or an impartial adjudication.
    10                 (C)  Impair the ability to locate a defendant or
    11             codefendant.
    12                 (D)  Hinder an agency's ability to secure an
    13             arrest, prosecution or conviction.
    14                 (E)  Endanger the life or physical safety of an
    15             individual.
    16         (17)  A record of an agency relating to a noncriminal
    17     investigation, including:
    18             (i)  Complaints submitted to an agency.
    19             (ii)  Investigative materials, notes, correspondence
    20         and reports.
    21             (iii)  A record that includes the identity of a
    22         confidential source, including individuals subject to the
    23         act of December 12, 1986 (P.L.1559, No.169), known as the
    24         Whistleblower Law.
    25             (iv)  A record that includes information made
    26         confidential by law or court order.
    27             (v)  Work papers underlying an audit.
    28             (vi)  A record that, if disclosed, would do any of
    29         the following:
    30                 (A)  Reveal the institution, progress or result
    20070H2072B2905                 - 27 -     

     1             of an agency investigation, except the imposition of
     2             a fine or civil penalty or the suspension,
     3             modification or revocation of a license, permit,
     4             registration, certification or similar authorization
     5             issued by an agency.
     6                 (B)  Deprive a person of the right to an
     7             impartial adjudication.
     8                 (C)  Constitute an unwarranted invasion of
     9             privacy.
    10                 (D)  Hinder an agency's ability to secure an
    11             administrative or civil sanction.
    12                 (E)  Endanger the life or physical safety of an
    13             individual.
    14         (18)  911 recordings.
    15         (19)  DNA records.
    16         (20)  An autopsy record of a coroner or medical examiner
    17     and any audiotape of a postmortem examination or autopsy, or
    18     a copy, reproduction or facsimile of a photograph, negative
    19     or print, including a photograph or videotape of the body or
    20     any portion of the body of a deceased person at the scene of
    21     death or in the course of a postmortem examination or autopsy
    22     taken or made by or caused to be taken or made by the coroner
    23     or medical examiner. This exception shall not limit the
    24     reporting of the name of the deceased individual, the cause
    25     of death and whether the death was caused by criminal
    26     activity or criminal negligence in accordance with section
    27     1251 of the act of August 9, 1955 (P.L.323, No.130), known as
    28     The County Code.
    29         (21)  Minutes of an executive session and any record of
    30     discussions held in executive session.
    20070H2072B2905                 - 28 -     

     1         (22)  (i)  The contents of real estate appraisals,
     2         engineering or feasibility estimates, environmental
     3         reviews, audits or evaluations made for or by an agency
     4         relative to the following:
     5                 (A)  The leasing, acquiring or disposing of real
     6             property.
     7                 (B)  The purchase of public supplies or equipment
     8             included in the real estate transaction.
     9                 (C)  Construction projects.
    10             (ii)  This paragraph does not apply once the decision
    11         is made to proceed with the lease, acquisition or
    12         disposal of real property or the purchase of public
    13         supply or construction project.
    14         (23)  Library and archive circulation and order records
    15     of an identifiable individual or groups of individuals.
    16         (24)  Library archived and museum materials, or valuable
    17     or rare book collections or documents contributed by gift,
    18     grant, bequest or devise, to the extent of any limitations
    19     imposed by the donor as a condition of the contribution.
    20         (25)  A record identifying the location of an
    21     archeological site or an endangered or threatened plant or
    22     animal species if not already known to the general public.
    23         (26)  A proposal pertaining to agency procurement or
    24     disposal of supplies, services or construction prior to the
    25     award of the contract or prior to the opening and rejection
    26     of all bids; financial information of a bidder or offeror
    27     requested in an invitation for bid or request for proposals
    28     to demonstrate the bidder's or offeror's economic capability;
    29     or the identity of members, notes and other records of agency
    30     proposal evaluation committees established under 62 Pa.C.S. §
    20070H2072B2905                 - 29 -     

     1     513 (relating to competitive sealed proposals).
     2         (27)  A record or information relating to a communication
     3     between an agency and its insurance carrier, administrative
     4     service organization or risk management office. This
     5     paragraph does not apply to a contract with an insurance
     6     carrier, administrative service organization or risk
     7     management office or to financial records relating to the
     8     provision of insurance.
     9         (28)  A record or information:
    10             (i)  identifying an individual who applies for or
    11         receives social services;
    12             (ii)  relating to the following:
    13                 (A)  the type of social services received by an
    14             individual;
    15                 (B)  an individual's application to receive
    16             social services, including a record or information
    17             related to an agency decision to grant, deny, reduce
    18             or restrict benefits, including a quasi-judicial
    19             decision of the agency and the identity of a
    20             caregiver or others who provide services to the
    21             individual; or
    22                 (C)  eligibility to receive social benefits,
    23             including the individual's income, assets, physical
    24             or mental health, age, disability, family
    25             circumstances or record of abuse; or
    26             (iii)  identifying a person that requests assistance
    27         or constituent services from a member of the General
    28         Assembly.
    29     (c)  Financial records.--The exceptions set forth in
    30  subsection (b)(1), (2), (3), (4) or (5) shall apply to financial
    20070H2072B2905                 - 30 -     

     1  records. An agency shall redact that portion of a financial
     2  record which would disclose information protected by subsection
     3  (b)(6) or disclose the identity of a crime victim, confidential
     4  source or an individual performing an undercover or covert law
     5  enforcement activity under subsection (b)(16) or (17).
     6     (d)  Aggregated data.--The exceptions set forth in subsection
     7  (b)(1), (2), (3), (4) or (5) shall not apply to aggregated data,
     8  maintained or received by an agency.
     9                             CHAPTER 9
    10                          AGENCY RESPONSE
    11  Section 901.  General rule.
    12     Upon receipt of a written request for access to a record, an
    13  agency shall make a good faith effort to determine if the record
    14  requested is a public record, legislative record or financial
    15  record and whether the agency has possession, custody or control
    16  of the identified record, and to respond as promptly as possible
    17  under the circumstances existing at the time of the request. The
    18  time for response shall not exceed five business days from the
    19  date the written request is received by the agency head or open-
    20  records officer for an agency. If the agency fails to send the
    21  response within five business days of receipt of the written
    22  request for access, the written request for access shall be
    23  deemed denied.
    24  Section 902.  Extension of time.
    25     (a)  Determination.--Upon receipt of a written request for
    26  access, the open-records officer for an agency shall determine
    27  if one of the following applies:
    28         (1)  the request for access requires redaction of a
    29     record in accordance with section 706;
    30         (2)  the request for access requires the retrieval of a
    20070H2072B2905                 - 31 -     

     1     record stored in a remote location;
     2         (3)  a timely response to the request for access cannot
     3     be accomplished due to bona fide and specified staffing
     4     limitations;
     5         (4)  a legal review is necessary to determine whether the
     6     record is a record subject to access under this act;
     7         (5)  the requester has not complied with the Commonwealth
     8     agency's policies regarding access to records;
     9         (6)  the requester refuses to pay applicable fees
    10     authorized by this act; or
    11         (7)  the extent or nature of the request precludes a
    12     response within the required time period.
    13     (b)  Notice.--
    14         (1)  Upon a determination that one of the factors listed
    15     in subsection (a) applies, the open-records officer shall
    16     send written notice to the requester within five business
    17     days of receipt of the request for access under subsection
    18     (a).
    19         (2)  The notice shall include a statement notifying the
    20     requester that the request for access is being reviewed, the
    21     reason for the review and a reasonable date that a response
    22     is expected to be provided. If the date that a response is
    23     expected to be provided is in excess of 30 days, following
    24     the five business days allowed for in section 901, the
    25     request for access shall be deemed denied unless the
    26     requester has agreed in writing for an extension to the date
    27     specified in the notice.
    28         (3)  If the requester agrees to the extension, the
    29     request shall be deemed denied on the day following the date
    30     specified in the notice if the agency has not provided a
    20070H2072B2905                 - 32 -     

     1     response by that date.
     2  Section 903.  Denial.
     3     If an agency's response is a denial of a written request for
     4  access, whether in whole or in part, a written response shall be
     5  issued and include:
     6         (1)  A description of the record requested.
     7         (2)  The specific reasons for the denial, including a
     8     citation of supporting legal authority.
     9         (3)  The typed or printed name, title, business address,
    10     business telephone number and signature of the agency head or
    11     open-records officer on whose authority the denial is issued.
    12         (4)  Date of the response.
    13         (5)  The procedure to appeal the denial of access under
    14     this act.
    15  Section 904.  Certified copies.
    16     If an agency's response grants a request for access, the
    17  agency shall, upon request, provide the requester with a
    18  certified copy of the record if the requester pays the
    19  applicable fees pursuant to section 1307.
    20                             CHAPTER 11
    21                   APPEAL OF AGENCY DETERMINATION
    22  Section 1101.  Filing of appeal.
    23     (a)  Authorization.--
    24         (1)  If a written request for access is denied or deemed
    25     denied, the requester may file an appeal with the
    26     clearinghouse or with the appropriate legislative or judicial
    27     appeals officer within 15 business days of the mailing date
    28     of the agency's response or within 15 business days of a
    29     deemed denial. The appeal shall state the grounds upon which
    30     the requester asserts that the record is a public record,
    20070H2072B2905                 - 33 -     

     1     legislative record or financial record and shall address any
     2     grounds stated by the agency for delaying or denying the
     3     request.
     4         (2)  In the case of an appeal of a decision by a
     5     Commonwealth agency or local agency, the clearinghouse shall
     6     assign an appeals officer to review the denial.
     7     (b)  Determination.--
     8         (1)  Unless the requester agrees otherwise, the appeals
     9     officer shall make a final determination which shall be
    10     mailed to the requester and the agency within 30 days of
    11     receipt of the appeal filed under subsection (a).
    12         (2)  If the appeals officer fails to issue a final
    13     determination within 30 days, the appeal is deemed denied.
    14         (3)  Prior to issuing a final determination, a hearing
    15     may be conducted. The determination by the appeals officer
    16     shall be a final order. The appeals officer shall provide a
    17     written explanation of the reason for the decision to the
    18     requester and the agency.
    19     (c)  Direct interest.--
    20         (1)  A person other than the agency or requester with a
    21     direct interest in the record subject to an appeal under this
    22     section may, within 15 calendar days following receipt of
    23     actual knowledge of the appeal but no later than the date the
    24     appeals officer issues an order, file a written request to
    25     provide information or appear before the appeals officer or
    26     to file information in support of the requester's or agency's
    27     position.
    28         (2)  The appeals officer may grant the request if:
    29             (i)  no hearing has been held;
    30             (ii)  the office has not yet issued its order; and
    20070H2072B2905                 - 34 -     

     1             (iii)  the appeals officer believes the information
     2         will be probative.
     3         (3)  Copies of the written request shall be sent to the
     4     agency and the requester.
     5  Section 1102.  Appeals officers.
     6     (a)  Scope.--This section applies to all agencies.
     7     (b)  Duties.--The appeals officer shall do all of the
     8  following:
     9         (1)  Set a schedule for the requester and the open-
    10     records officer to submit documents in support of their
    11     positions.
    12         (2)  Review all information filed relating to the
    13     request. The appeals officer may hold a hearing. A decision
    14     to hold or not to hold a hearing is not appealable. The
    15     appeals officer may admit into evidence testimony, evidence
    16     and documents that the appeals officer believes to be
    17     reasonably probative and relevant to an issue in dispute. The
    18     appeals officer may limit the nature and extent of evidence
    19     found to be cumulative.
    20         (3)  Consult with agency counsel as appropriate.
    21         (4)  Issue a final determination on behalf of the agency.
    22     (c)  Procedures.--The clearinghouse, a judicial agency or a
    23  legislative agency may adopt procedures relating to appeals
    24  under this chapter.
    25         (1)  If an appeal is resolved without a hearing, 1 Pa.
    26     Code Pt. II (relating to general rules of administrative
    27     practice and procedure) does not apply except to the extent
    28     that the clearinghouse, legislative agency or judicial agency
    29     has adopted these chapters in its regulations or rules.
    30         (2)  If a hearing is held, 1 Pa. Code Pt. II shall apply
    20070H2072B2905                 - 35 -     

     1     unless the clearinghouse, the judicial agency or the
     2     legislative agency has adopted regulations or rules to the
     3     contrary.
     4         (3)  In the absence of a regulation or rule governing
     5     appeals under this chapter, the appeals officer shall rule on
     6     procedural matters on the basis of justice, fairness and the
     7     expeditious resolution of the dispute.
     8                             CHAPTER 13
     9                          JUDICIAL REVIEW
    10  Section 1301.  Commonwealth agencies, legislative agencies and
    11                 judicial agencies.
    12     (a)  General rule.--Within 30 days of the mailing date of the
    13  final determination of the appeals officer relating to a
    14  decision of a Commonwealth agency, a legislative agency or a
    15  judicial agency issued under section 1101(b) or the date a
    16  request for access is deemed denied, a requester or the agency
    17  may file a petition for review or other document as might be
    18  required by rule of court with the Commonwealth Court. The
    19  decision of the court shall contain findings of fact and
    20  conclusions of law based upon the evidence as a whole. The
    21  decision shall clearly and concisely explain the rationale for
    22  the decision.
    23     (b)  Stay.--An appeal under this section shall stay the
    24  release of documents until a decision under subsection (a) is
    25  issued.
    26  Section 1302.  Local agencies.
    27     (a)  General rule.--Within 30 days of the mailing date of the
    28  final determination of the appeals officer relating to a
    29  decision of a local agency issued under section 1101(b) or of
    30  the date a request for access is deemed denied, a requester or
    20070H2072B2905                 - 36 -     

     1  local agency may file a petition for review or other document as
     2  required by rule of court with the court of common pleas for the
     3  county where the local agency is located. The decision of the
     4  court shall contain findings of fact and conclusions of law
     5  based upon the evidence as a whole. The decision shall clearly
     6  and concisely explain the rationale for the decision.
     7     (b)  Stay.--An appeal under this section shall stay the
     8  release of documents until a decision under subsection (a) is
     9  issued.
    10  Section 1303.  Notice and records.
    11     (a)  Notice.--An agency, the requester and the appeals
    12  officer shall be served notice of actions commenced in
    13  accordance with section 1301 or 1302 and shall have an
    14  opportunity to respond in accordance with applicable court
    15  rules.
    16     (b)  Record on appeal.--The record before a court shall
    17  consist of the request, the agency's response, the appeal filed
    18  under section 1101, the hearing transcript, if any, and the
    19  final written determination of the appeals officer.
    20  Section 1304.  Court costs and attorney fees.
    21     (a)  Reversal of agency determination.--If a court reverses
    22  the final determination of the appeals officer or grants access
    23  after a request for access was deemed denied, the court may
    24  award reasonable attorney fees and costs of litigation or an
    25  appropriate portion thereof to a requester if the court finds
    26  either of the following:
    27         (1)  the agency receiving the original request willfully
    28     or with wanton disregard deprived the requester of access to
    29     a public record subject to access or otherwise acted in bad
    30     faith under the provisions of this act; or
    20070H2072B2905                 - 37 -     

     1         (2)  the exemptions, exclusions or defenses asserted by
     2     the agency in its final determination were not based on a
     3     reasonable interpretation of law.
     4     (b)  Sanctions for frivolous requests or appeals.--The court
     5  may award reasonable attorney fees and costs of litigation or an
     6  appropriate portion thereof to an agency or the requester if the
     7  court finds that the legal challenge under this chapter was
     8  frivolous.
     9     (c)  Other sanctions.--Nothing in this act shall prohibit a
    10  court from imposing penalties and costs in accordance with
    11  applicable rules of court.
    12  Section 1305.  Civil penalty.
    13     (a)  Denial of access.--A court may impose a civil penalty of
    14  not more than $1,000 if an agency denied access to a public
    15  record in bad faith.
    16     (b)  Failure to comply with court order.--An agency or public
    17  official who does not promptly comply with a court order under
    18  this act is subject to a civil penalty of not more than $500 per
    19  day until the public records are provided.
    20  Section 1306.  Immunity.
    21     (a)  General rule.--Except as provided in sections 1304 and
    22  1305 and other statutes governing the release of records, no
    23  agency, public official or public employee shall be liable for
    24  civil or criminal damages or penalties resulting from compliance
    25  or failure to comply with this act.
    26     (b)  Schedules.--No agency, public official or public
    27  employee shall be liable for civil or criminal damages or
    28  penalties under this act for complying with any written public
    29  record retention and disposition schedule.
    30  Section 1307.  Fee limitations.
    20070H2072B2905                 - 38 -     

     1     (a)  Postage.--Fees for postage may not exceed the actual
     2  cost of mailing.
     3     (b)  Duplication.--
     4         (1)  Fees for duplication by photocopying, printing from
     5     electronic media or microfilm, copying onto electronic media,
     6     transmission by facsimile or other electronic means and other
     7     means of duplication shall be established:
     8             (i)  by the clearinghouse, for Commonwealth agencies
     9         and local agencies;
    10             (ii)  by each judicial agency; and
    11             (iii)  by each legislative agency.
    12         (2)  (i)  The fees must be reasonable and based on
    13         prevailing fees for comparable duplication services
    14         provided by local business entities.
    15             (ii)  Fees for copying data, collections of data and
    16         compiled data, including, but not limited to, geographic
    17         information systems and property lists, may be based on
    18         consideration of the reasonable market value of same or
    19         closely comparable data, collections of data or compiled
    20         data.
    21         (3)  Fees for local agencies may reflect regional price
    22     differences.
    23     (c)  Certification.--An agency may impose reasonable fees for
    24  official certification of copies if the certification is at the
    25  behest of the requester and for the purpose of legally verifying
    26  the public record.
    27     (d)  Conversion to paper.--If a record is only maintained
    28  electronically or in other nonpaper media, duplication fees
    29  shall be limited to the lesser of the fee for duplication on
    30  paper or the fee for duplication in the original media as
    20070H2072B2905                 - 39 -     

     1  provided by subsection (b) unless the requester specifically
     2  requests for the record to be duplicated in the more expensive
     3  medium.
     4     (e)  Enhanced electronic access.--If an agency offers
     5  enhanced electronic access to records in addition to making the
     6  records accessible for inspection and duplication by a requester
     7  as required by this act, the agency may establish user fees
     8  specifically for the provision of the enhanced electronic
     9  access, but only to the extent that the enhanced electronic
    10  access is in addition to making the records accessible for
    11  inspection and duplication by a requester as required by this
    12  act. The user fees for enhanced electronic access may be a flat
    13  rate, a subscription fee for a period of time, a per-transaction
    14  fee, a fee based on the cumulative time of system access or any
    15  other reasonable method and any combination thereof. The user
    16  fees for enhanced electronic access must be reasonable, must be
    17  approved by the clearinghouse and may not be established with
    18  the intent or effect of excluding persons from access to records
    19  or duplicates thereof or of creating profit for the agency.
    20     (f)  Waiver of fees.--An agency may waive the fees for
    21  duplication of a record, including, but not limited to, when:
    22         (1)  the requester duplicates the record; or
    23         (2)  the agency deems it is in the public interest to do
    24     so.
    25     (g)  Limitations.--Except as otherwise provided by statute,
    26  no other fees may be imposed unless the agency necessarily
    27  incurs costs for complying with the request, and such fees must
    28  be reasonable. No fee may be imposed for an agency's review of a
    29  record to determine whether the record is a public record,
    30  legislative record or financial record subject to access in
    20070H2072B2905                 - 40 -     

     1  accordance with this act.
     2     (h)  Prepayment.--Prior to granting a request for access in
     3  accordance with this act, an agency may require a requester to
     4  prepay an estimate of the fees authorized under this section if
     5  the fees required to fulfill the request are expected to exceed
     6  $100.
     7  Section 1308.  Prohibition.
     8     A policy, rule or regulation adopted under this act may not
     9  include any of the following:
    10         (1)  A limitation on the number of records which may be
    11     requested or made available for inspection or duplication.
    12         (2)  A requirement to disclose the purpose or motive in
    13     requesting access to records.
    14  Section 1309.  Practice and procedure.
    15     The provisions of 2 Pa.C.S. (relating to administrative law
    16  and procedure) shall not apply to this act unless specifically
    17  adopted by rule or regulation.
    18  Section 1310.  Office of Open Records Clearinghouse.
    19     (a)  Establishment.--There is hereby established in the
    20  Department of Community and Economic Development the Office of
    21  Open Records Clearinghouse. The clearinghouse shall do all of
    22  the following:
    23         (1)  Provide information relating to the implementation
    24     and enforcement of this act.
    25         (2)  Issue advisory opinions to agencies and requesters.
    26         (3)  Provide annual training courses to agencies on this
    27     act and 65 Pa.C.S. Ch. 7 (relating to open meetings).
    28         (4)  Provide annual, regional training courses to local
    29     agencies.
    30         (5)  Review appeals of decisions by Commonwealth agencies
    20070H2072B2905                 - 41 -     

     1     or local agencies except as provided in section 503(d) filed
     2     under section 1101 and issue orders and opinions. The
     3     clearinghouse shall employ or contract with attorneys to
     4     serve as appeals officers to review appeals and, if
     5     necessary, to hold hearings on a regional basis under this
     6     act. Each appeals officer must comply with all of the
     7     following:
     8             (i)  Complete a training course provided by the
     9         clearinghouse prior to acting as an appeals officer.
    10             (ii)  If a hearing is necessary, hold hearings
    11         regionally as necessary to ensure access to the remedies
    12         provided by this act.
    13             (iii)  Comply with the procedures under section
    14         1102(b).
    15         (6)  Establish an informal mediation program to resolve
    16     disputes under this act.
    17         (7)  Establish an Internet website with information
    18     relating to this act, including advisory opinions and
    19     decisions and the name and address of all open records
    20     officers in this Commonwealth.
    21         (8)  Conduct a biannual review of fees charged under this
    22     act.
    23         (9)  Annually report on its activities and findings to
    24     the Governor and the General Assembly. The report shall be
    25     posted and maintained on the Internet website established
    26     under paragraph (7).
    27     (b)  Executive director.--The Governor shall appoint an
    28  executive director of the clearinghouse who shall serve for a
    29  term of six years. Compensation shall be set by the Executive
    30  Board established under section 204 of the act of April 9, 1929
    20070H2072B2905                 - 42 -     

     1  (P.L.177, No.175), known as The Administrative Code of 1929. The
     2  executive director may serve no more than two terms.
     3     (c)  Limitation.--The executive director shall not seek
     4  election nor accept appointment to any political office during
     5  his tenure as executive director and for one year thereafter.
     6     (d)  Staffing.--The executive director shall appoint
     7  attorneys to act as appeals officers and additional clerical,
     8  technical and professional staff as may be appropriate and may
     9  contract for additional services as necessary for the
    10  performance of the executive director's function. The
    11  compensation of attorneys and other staff shall be set by the
    12  Executive Board.
    13     (e)  Duties.--The executive director shall ensure that the
    14  duties of the clearinghouse are carried out and shall monitor
    15  cases appealed to the clearinghouse.
    16     (f)  Appropriation.--The appropriation for the clearinghouse
    17  shall be in a separate line item and shall be under the
    18  jurisdiction of the executive director.
    19                             CHAPTER 15
    20                     STATE-RELATED INSTITUTIONS
    21  Section 1501.  Definition.
    22     As used in this chapter, "State-related institution" means
    23  any of the following:
    24         (1)  Temple University.
    25         (2)  The University of Pittsburgh.
    26         (3)  The Pennsylvania State University.
    27         (4)  Lincoln University.
    28  Section 1502.  Reporting.
    29     No later than May 30 of each year, a State-related
    30  institution shall file with the Governor's Office, the General
    20070H2072B2905                 - 43 -     

     1  Assembly, the Auditor General and the State Library the
     2  information set forth in section 1503.
     3  Section 1503.  Contents of report.
     4     The report required under section 1502 shall include the
     5  following:
     6         (1)  Except as provided in paragraph (4), all information
     7     required by Form 990 or an equivalent form, of the United
     8     States Department of the Treasury, Internal Revenue Service,
     9     entitled the Return of Organization Exempt From Income Tax,
    10     regardless of whether the State-related institution is
    11     required to file the form by the Federal Government.
    12         (2)  The salaries of all officers and directors of the
    13     State-related institution.
    14         (3)  The highest 25 salaries paid to employees of the
    15     institution that are not included under paragraph (2).
    16         (4)  The report shall not include information relating to
    17     individual donors.
    18  Section 1504.  Copies and posting.
    19     A State-related institution shall maintain, for at least
    20  seven years, a copy of the report in the institution's library
    21  and shall provide free access to the report on the institution's
    22  Internet website.
    23                             CHAPTER 17
    24                     STATE CONTRACT INFORMATION
    25  Section 1701.  Submission and retention of contracts.
    26     (a)  General rule.--Whenever any Commonwealth agency,
    27  legislative agency or judicial agency shall enter into any
    28  contract involving any property, real, personal or mixed of any
    29  kind or description or any contract for personal services where
    30  the consideration involved in the contract is $5,000 or more, a
    20070H2072B2905                 - 44 -     

     1  copy of the contract shall be furnished to the Treasury
     2  Department within ten days after the contract is executed on
     3  behalf of the Commonwealth agency, legislative agency or
     4  judicial agency or otherwise becomes an obligation of the
     5  Commonwealth agency, legislative agency or judicial agency. The
     6  contract provided to the Treasury Department pursuant to this
     7  chapter shall be redacted in accordance with applicable
     8  provisions of this act by the agency providing the contract to
     9  the Treasury Department. The contract provided to the Treasury
    10  Department pursuant to this chapter shall be in addition to any
    11  copy of the contract provided to the State Treasurer under the
    12  act of April 9, 1929 (P.L.343, No.176), known as The Fiscal
    13  Code. A contract provided to the State Treasurer, Auditor
    14  General or Secretary of Revenue under The Fiscal Code shall be
    15  confidential and shall not be subject to this act. The
    16  provisions of this chapter shall not apply to contracts for
    17  services protected by a privilege. The following shall apply:
    18         (1)  Each Commonwealth agency, legislative agency and
    19     judicial agency shall submit contracts in a form and
    20     structure mutually agreed upon by the Commonwealth agency,
    21     legislative agency or judicial agency and the State
    22     Treasurer.
    23         (2)  The Treasury Department may require each
    24     Commonwealth agency, legislative agency or judicial agency to
    25     provide a summary with each contract, which shall include the
    26     following:
    27             (i)  Date of execution.
    28             (ii)  Amount of the contract.
    29             (iii)  Beginning date of the contract.
    30             (iv)  End date of the contract, if applicable.
    20070H2072B2905                 - 45 -     

     1             (v)  Name of the agency entering into the contract.
     2             (vi)  All parties to the contract.
     3             (vii)  Subject matter of the contract.
     4     Each agency shall create and maintain the data under this
     5     paragraph in an ASCII-delimited text format, spreadsheet
     6     format or other format provided by regulation.
     7     (b)  Retention.--Every contract filed pursuant to subsection
     8  (a) shall remain on file with the Treasury Department for a
     9  period of not less than four years after the end date of the
    10  contract.
    11     (c)  Accuracy.--Each Commonwealth agency, legislative agency
    12  and judicial agency is responsible for verifying the accuracy
    13  and completeness of the information that it submits to the State
    14  Treasurer.
    15  Section 1702.  Public availability of contracts.
    16     (a)  General rule.--The Treasury Department shall make each
    17  contract filed pursuant to section 1701 available for public
    18  inspection either by posting a copy of the contract on the
    19  Treasury Department's publicly accessible Internet website or by
    20  posting a contract summary on the department's publicly
    21  accessible Internet website.
    22     (b)  Posting.--The Treasury Department shall post the
    23  information received pursuant to this chapter in a way that
    24  allows the public to search contracts or contract summaries by
    25  the categories enumerated in section 1701(a)(2).
    26     (c)  Request to review or receive copy of contract.--The
    27  Treasury Department shall maintain a page on its publicly
    28  accessible Internet website with instructions on how to request
    29  to review a contract and how to request a copy of a contract.
    30  Requests to review or receive a copy of a contract shall be
    20070H2072B2905                 - 46 -     

     1  allowed by letter, facsimile or e-mail. Additionally, both
     2  requests shall be honored within five days of the submission of
     3  the request and in the case of a request for a copy of a
     4  contract it shall be provided to the individual at cost. The
     5  Treasury Department may offer to provide a copy of the requested
     6  contract electronically to the requester at no cost.
     7                             CHAPTER 31
     8                      MISCELLANEOUS PROVISIONS
     9  Section 3101.  Applicability.
    10     This act applies as follows:
    11         (1)  This act shall apply to requests filed after the
    12     effective date of this section.
    13         (2)  Chapter 15 shall apply to fiscal years beginning
    14     after June 30, 2008.
    15         (3)  Chapter 17 shall apply to contracts entered into or
    16     renewed after the effective date of this section.
    17         (4)  Section 3102(1)(ii)(B) shall apply to bids submitted
    18     on or after the effective date of this section.
    19  Section 3102.  Repeals.
    20     Repeals are as follows:
    21         (1)  (i)  General Assembly declares that the repeals
    22         under subparagraph (ii) are necessary to effectuate this
    23         act.
    24             (ii)  The following acts and parts of acts are
    25         repealed:
    26                 (A)  The act of June 21, 1957 (P.L.390, No.212),
    27             referred to as the Right-to-Know Law.
    28                 (B)  62 Pa.C.S. § 106.
    29         (2)  (i)  The General Assembly declares that the repeal
    30         under subparagraph (ii) is necessary to effectuate
    20070H2072B2905                 - 47 -     

     1         Chapter 17.
     2             (ii)  Section 1104 of the act of April 9, 1929
     3         (P.L.177, No.175), known as The Administrative Code of
     4         1929, is repealed.
     5  Section 3103.  Effective date.
     6     This act shall take effect in 180 days or July 1, 2008,
     7  whichever is later.
















    K21L02VDL/20070H2072B2905       - 48 -
See other bills
under the
same topic