PRIOR PRINTER'S NOS. 772, 1509, 1553          PRINTER'S NO. 1562

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 1 Session of 2007


        INTRODUCED BY PILEGGI, SCARNATI, MELLOW, ORIE, KASUNIC, MUSTO,
           RAFFERTY, O'PAKE, TOMLINSON, M. WHITE, ERICKSON, WAUGH,
           FOLMER, COSTA, EARLL, VANCE, BOSCOLA, CORMAN, WONDERLING,
           GORDNER, RHOADES, D. WHITE, PIPPY, MADIGAN, ARMSTRONG, BAKER,
           C. WILLIAMS, BRUBAKER, BROWNE, REGOLA, DINNIMAN AND
           EICHELBERGER, MARCH 29, 2007

        AS AMENDED ON SECOND CONSIDERATION, NOVEMBER 19, 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 Open Records Clearinghouse; imposing
     6     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.
    17  Section 304.  Judicial agencies.
    18  Section 305.  Presumption.
    19  Section 306.  Nature of document.

     1  Chapter 5.  Access
     2  Section 501.  Scope of chapter.
     3  Section 502.  Open-records officer.
     4  Section 503.  Appeals officer.
     5  Section 504.  Regulations and policies.
     6  Section 505.  Uniform form.
     7  Section 506.  Requests.
     8  Section 507.  Retention of records.
     9  Chapter 7.  Procedure
    10  Section 701.  Access to public records.
    11  Section 702.  Requests.
    12  Section 703.  Written requests.
    13  Section 704.  Electronic access.
    14  Section 705.  Creation of record.
    15  Section 706.  Redaction.
    16  Section 707.  Production of certain records.
    17  Section 708.  Exceptions for public records.
    18  Chapter 9.  Agency Response
    19  Section 901.  General rule.
    20  Section 902.  Extension of time.
    21  Section 903.  Denial.
    22  Section 904.  Certified copies.
    23  Chapter 11.  Appeal of Agency Determination
    24  Section 1101.  Filing of appeal.
    25  Section 1102.  Appeals officers.
    26  Chapter 13.  Judicial Review
    27  Section 1301.  Commonwealth agencies, legislative agencies and
    28                 judicial agencies.
    29  Section 1302.  Local agencies.
    30  Section 1303.  Notice and records.
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     1  Section 1304.  Court costs and attorney fees.
     2  Section 1305.  Penalties.
     3  Section 1306.  Immunity.
     4  Section 1307.  Fee limitations.
     5  Section 1308.  Prohibition.
     6  Section 1309.  Practice and procedure.
     7  Section 1310.  Clearinghouse.
     8  Chapter 15.  State-Related Institutions
     9  Section 1501.  Definition.
    10  Section 1502.  Reporting.
    11  Section 1503.  Contents of report.
    12  Section 1504.  Copies and posting.
    13  Chapter 17.  State Contract Information
    14  Section 1701.  Submission and retention of contracts.
    15  Section 1702.  Public availability of contracts.
    16  Chapter 31.  Miscellaneous Provisions
    17  Section 3101.  Applicability.
    18  Section 3102.  Repeals.
    19  Section 3103.  Effective date.
    20     The General Assembly of the Commonwealth of Pennsylvania
    21  hereby enacts as follows:
    22                             CHAPTER 1
    23                       PRELIMINARY PROVISIONS
    24  Section 101.  Short title.
    25     This act shall be known and may be cited as the Right-to-Know
    26  Law.
    27  Section 102.  Definitions.
    28     The following words and phrases when used in this act shall
    29  have the meanings given to them in this section unless the
    30  context clearly indicates otherwise:
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     1     "ADMINISTRATIVE PROCEEDING."  A PROCEEDING BY AN AGENCY THE    <--
     2  OUTCOME OF WHICH IS REQUIRED TO BE BASED ON A RECORD OR
     3  DOCUMENTATION PRESCRIBED BY LAW OR IN WHICH A STATUTE OR
     4  REGULATION IS PARTICULARIZED IN APPLICATION TO INDIVIDUALS. THE
     5  TERM INCLUDES AN APPEAL.
     6     "Agency."  A Commonwealth agency, a local agency, a judicial
     7  agency or a legislative agency.
     8     "Aggregated data."  A tabulation of data which relate to
     9  broad classes, groups or categories so that it is not possible
    10  to distinguish the properties of individuals within those
    11  classes, groups or categories.
    12     "Appeals officer."  As follows:
    13         (1)  For a Commonwealth agency or a local agency, the
    14     appeals officer designated under section 503(a).
    15         (2)  For a judicial agency, the individual designated
    16     under section 503(b).
    17         (3)  For a legislative agency, the individual designated
    18     under section 503(c).
    19     "Clearinghouse."  The Open Records Clearinghouse established
    20  pursuant to the provisions of section 1310.
    21     "Commonwealth agency."  Any of the following:
    22         (1)  Any office, department, authority, board, multistate
    23     agency or commission of the executive branch; an independent
    24     agency; and a State-affiliated entity. The term includes:
    25             (i)  The Governor's Office.
    26             (ii)  The Office of Attorney General, the Department
    27         of the Auditor General and the Treasury Department.
    28             (iii)  A statutorily established organization which
    29         performs or is intended to perform an essential
    30         governmental function.
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     1         (2)  The term does not include a judicial or legislative
     2     agency.
     3     "Confidential proprietary information."  Commercial or
     4  financial information received by an agency:
     5         (1)  which is privileged or confidential; and
     6         (2)  the disclosure of which would cause substantial harm
     7     to the competitive position of the person that submitted the
     8     information.
     9     "Financial record."  Includes:
    10         (1)  Any account, voucher or contract dealing with:
    11             (i)  the receipt or disbursement of funds by an
    12         agency; or
    13             (ii)  an agency's acquisition, use or disposal of
    14         services, supplies, materials, equipment or property.
    15         (2)  The salary or other payments or expenses paid to an
    16     officer or employee of an agency, including the name and
    17     title of the officer or employee.
    18         (3)  Results of a financial audit.
    19     "Homeland security."  Governmental actions designed to
    20  prevent, detect, respond to and recover from acts of terrorism,
    21  major disasters and other emergencies, whether natural or
    22  manmade. The term includes activities relating to the following:
    23         (1)  emergency preparedness and response, including
    24     preparedness and response activities by volunteer medical,
    25     police, emergency management, hazardous materials and fire
    26     personnel;
    27         (2)  intelligence activities;
    28         (3)  critical infrastructure protection;
    29         (4)  border security;
    30         (5)  ground, aviation and maritime transportation
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     1     security;
     2         (6)  biodefense;
     3         (7)  detection of nuclear and radiological materials; and
     4         (8)  research on next-generation securities technologies.
     5     "Independent agency."  Any board, commission or other agency
     6  or officer of the Commonwealth, that is not subject to the
     7  policy supervision and control of the Governor. The term does
     8  not include a legislative or judicial agency.
     9     "Judicial agency."  A court of the Commonwealth or any other
    10  entity or office of the unified judicial system.
    11     "Legislative agency."  Any of the following:
    12         (1)  The Senate.
    13         (2)  The House of Representatives.
    14         (3)  The Capitol Preservation Committee.
    15         (4)  The Center for Rural Pennsylvania.
    16         (5)  The Joint Legislative Air and Water Pollution
    17     Control and Conservation Committee.
    18         (6)  The Joint State Government Commission.
    19         (7)  The Legislative Budget and Finance Committee.
    20         (8)  The Legislative Data Processing Committee.
    21         (9)  The Independent Regulatory Review Commission.
    22         (10)  The Legislative Reference Bureau.
    23         (11)  The Local Government Commission.
    24         (12)  The Pennsylvania Commission on Sentencing.
    25     "Legislative record."  Includes the following information
    26  relating to a legislative agency or standing committee:
    27         (1)  A financial record.
    28         (2)  A bill or resolution that has been introduced and
    29     amendments offered thereto in committee or in legislative
    30     session, including resolutions to adopt or amend the rules of
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     1     a chamber.
     2         (3)  Fiscal notes.
     3         (4)  A cosponsorship memorandum.
     4         (5)  The journal of a chamber.
     5         (6)  The minutes of a public committee meeting.
     6         (7)  The transcript of a public hearing when available.
     7         (8)  The record of attendance of members at a committee
     8     meeting.
     9         (9)  The rules of a chamber.
    10         (10)  A record of all recorded votes taken in a committee
    11     meeting or legislative session.
    12         (11)  Any administrative staff manuals or written
    13     policies.
    14         (12)  An audit prepared pursuant to the act of June 30,
    15     1970 (P.L.442, No.151) entitled, "An act implementing the
    16     provisions of Article VIII, section 10 of the Constitution of
    17     Pennsylvania, by designating the Commonwealth officers who
    18     shall be charged with the function of auditing the financial
    19     transactions after the occurrence thereof of the Legislative
    20     and Judicial branches of the government of the Commonwealth,
    21     establishing a Legislative Audit Advisory Commission, and
    22     imposing certain powers and duties on such commission."
    23         (13)  Final or annual reports required by law to be
    24     submitted to the General Assembly.
    25         (14)  Legislative Budget and Finance Committee reports.
    26         (15)  Marked calendars.
    27     "Local agency." Any of the following:
    28         (1)  Any political subdivision, intermediate unit,
    29     charter school or public trade or vocational school.
    30         (2)  Any local, intergovernmental, regional or municipal
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     1     agency, authority, council, board, commission or similar
     2     governmental entity.
     3     "Personal financial information."  An individual's personal
     4  credit, charge or debit card information; bank account
     5  information; bank, credit or financial statements; account or
     6  PIN numbers and other information relating to an individual's
     7  personal finances.
     8     "Privilege."  The attorney-work product doctrine, the
     9  attorney-client privilege, the doctor-patient privilege or other
    10  privilege recognized by a court interpreting the laws of this
    11  Commonwealth.
    12     "Public record."  A record of a Commonwealth or local agency
    13  that:
    14         (1)  is not exempt under section 708;
    15         (2)  is not exempt from being disclosed under any other
    16     Federal or State law or regulation or judicial order or
    17     decree; or
    18         (3)  is not protected by a privilege.
    19     "Record."  Information, regardless of physical form or
    20  characteristics, that documents a transaction or activity of an
    21  agency and that is created, received or retained pursuant to law
    22  or in connection with a transaction, business or activity of the
    23  agency. The term includes a document, paper, letter, map, book,
    24  tape, photograph, film or sound recording, information stored or
    25  maintained electronically and a data-processed or image-
    26  processed document. The term includes a financial record, a
    27  legislative record and a public record.
    28     "Requester."  A person that is a resident of the United
    29  States and requests a record pursuant to this act. The term
    30  includes a political subdivision.
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     1     "Response."  Access to a record or an agency's written notice
     2  granting, denying or partially granting and partially denying
     3  access to a record.
     4     "Social services."  Cash assistance and other welfare
     5  benefits, medical, mental and other health care services, drug
     6  and alcohol treatment, adoption services, vocational and
     7  occupational training, education services, counseling services,
     8  workers' compensation services and unemployment compensation
     9  services, foster care services and services for victims of
    10  crimes.
    11     "State-affiliated entity."  A Commonwealth authority or
    12  Commonwealth entity. The term includes the Pennsylvania Higher
    13  Education Assistance Agency, the Pennsylvania Housing Finance
    14  Agency, the Pennsylvania Municipal Retirement Board, the State
    15  System of Higher Education, a community college, the
    16  Pennsylvania Turnpike Commission, the Pennsylvania Public
    17  Utility Commission, the Pennsylvania Infrastructure Investment
    18  Authority, the State Public School Building Authority, the
    19  Pennsylvania Interscholastic Athletic Association and the
    20  Pennsylvania Educational Facilities Authority. The term does not
    21  include a State-related institution.
    22     "Terrorist act."  A violent or life-threatening act that
    23  violates the criminal laws of the United States or any state and
    24  appears to be intended to:
    25         (1)  intimidate or coerce a civilian population;
    26         (2)  influence the policy of a government; or
    27         (3)  affect the conduct of a government by mass
    28     destruction, assassination or kidnapping.
    29     "Trade secret."  Information, including a formula, drawing,
    30  pattern, compilation, including a customer list, program,
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     1  device, method, technique or process that:
     2         (1)  derives independent economic value, actual or
     3     potential, from not being generally known to and not being
     4     readily ascertainable by proper means by other persons who
     5     can obtain economic value from its disclosure or use; and
     6         (2)  is the subject of efforts that are reasonable under
     7     the circumstances to maintain its secrecy.
     8  The term includes data processing software obtained by an agency
     9  under a licensing agreement prohibiting disclosure.
    10                             CHAPTER 3
    11                   REQUIREMENTS AND PROHIBITIONS
    12  Section 301.  Commonwealth agencies.
    13     (a)  Requirement.--A Commonwealth agency shall provide public
    14  records in accordance with this act.
    15     (b)  Prohibition.--A Commonwealth agency may not deny a
    16  requester access to a public record due to the intended use of
    17  the public record by the requester.
    18  Section 302.  Local agencies.
    19     (a)  Requirement.--A local agency shall provide public
    20  records in accordance with this act.
    21     (b)  Prohibition.--A local agency may not deny a requester
    22  access to a public record due to the intended use of the public
    23  record by the requester.
    24  Section 303.  Legislative agencies.
    25     (a)  Requirement.--A legislative agency shall provide
    26  legislative records in accordance with this act.
    27     (b)  Prohibition.--A legislative agency may not deny a
    28  requester access to a legislative record due to the intended use
    29  of the legislative record by the requester.
    30  Section 304.  Judicial agencies.
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     1     (a)  Requirement.--A judicial agency shall provide financial
     2  records in accordance with this act.
     3     (b)  Prohibition.--A judicial agency may not deny a requester
     4  access to a financial record due to the intended use of the
     5  financial record by the requester.
     6  Section 305.  Presumption.
     7     A record in the possession of a Commonwealth agency or local
     8  agency shall be presumed to be a public record unless:
     9         (1)  the record is exempt under section 708;
    10         (2)  the record is protected by a privilege; or
    11         (3)  the record is exempt from disclosure under any other
    12     Federal or State law or regulation or judicial order or
    13     decree.
    14  Section 306.  Nature of document.
    15     Nothing in this act shall supersede or modify the public or
    16  confidential nature of a record or document established in
    17  Federal or State statute or law, regulation or judicial order or
    18  decree.
    19                             CHAPTER 5
    20                               ACCESS
    21  Section 501.  Scope of chapter.
    22     This chapter applies to all agencies.
    23  Section 502.  Open-records officer.
    24     (a)  Establishment.--
    25         (1)  An agency shall designate an official or employee to
    26     act as the open-records officer.
    27         (2)  For a legislative agency other than the Senate or
    28     the House of Representatives, the open-records officer
    29     designated by the Legislative Reference Bureau shall serve as
    30     the open-records officer.
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     1     (b)  Functions.--
     2         (1)  The open-records officer shall receive requests
     3     submitted to the agency under this act, direct requests to
     4     other appropriate persons within the agency OR TO APPROPRIATE  <--
     5     PERSONS IN ANOTHER AGENCY, track the agency's progress in
     6     responding to requests and issue interim and final responses
     7     under this act.
     8         (2)  Upon receiving a request for a public record,
     9     legislative record or financial record, the open-records
    10     officer shall do all of the following:
    11             (i)  Note the date of receipt on the written request.
    12             (ii)  Compute the day on which the five-day period
    13         under section 901 will expire and make a notation of that
    14         date on the written request.
    15             (iii)  Maintain an electronic or paper copy of a
    16         written request, including all documents submitted with
    17         the request until the request has been fulfilled. If the
    18         request is denied, the written request shall be
    19         maintained for 30 days or, if an appeal is filed, until a
    20         final determination is issued under section 1101(b) or
    21         the appeal is deemed denied.
    22             (iv)  Create a file for the retention of the original
    23         request, a copy of the response, a record of written
    24         communications with the requester and a copy of other
    25         communications. THIS SUBPARAGRAPH SHALL ONLY APPLY TO      <--
    26         COMMONWEALTH AGENCIES.
    27  Section 503.  Appeals officer.
    28     (a)  Commonwealth agencies and local agencies.--Except as
    29  provided in subsection (d), the clearinghouse established under
    30  section 1310 shall designate an appeals officer under section
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     1  1101(a)(2) for all:
     2         (1)  Commonwealth agencies; and
     3         (2)  local agencies.
     4     (b)  Judicial agencies.--A judicial agency shall designate an
     5  appeals officer to hear appeals under Chapter 11.
     6     (c)  Legislative agencies.--
     7         (1)  Except as set forth in paragraph (2), the
     8     Legislative Reference Bureau shall designate an appeals
     9     officer to hear appeals under Chapter 11 for all legislative
    10     agencies.
    11         (2)  Each of the following shall designate an appeals
    12     officer to hear appeals under Chapter 11:
    13             (i)  The Senate.
    14             (ii)  The House of Representatives.
    15     (d)  Law enforcement records and Statewide officials.--
    16         (1)  The Attorney General, State Treasurer and Auditor
    17     General shall each designate an appeals officer to hear
    18     appeals under Chapter 11.
    19         (2)  The district attorney of a county shall designate an
    20     appeals officer to hear appeals under Chapter 11 relating to
    21     access to criminal investigative records in possession of a
    22     local agency of that county. The appeals officer designated
    23     by the district attorney shall determine if the record
    24     requested is a criminal investigative record.
    25  Section 504.  Regulations and policies.
    26     (a)  Authority.--An agency may promulgate regulations, rules
    27  or policies necessary for the agency to implement this act. The
    28  clearinghouse may promulgate regulations relating to appeals
    29  involving a Commonwealth agency or local agency.
    30     (b)  Posting.--The following information shall be posted at
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     1  each agency and, if the agency maintains an Internet website, on
     2  the agency's Internet website:
     3         (1)  Contact information for the open-records officer.
     4         (2)  Contact information for the clearinghouse or other
     5     applicable appeals officer.
     6         (3)  A form which may be used to file a request.
     7         (4)  Rules, regulations, policies and procedures of the
     8     agency relating to this act.
     9  Section 505.  Uniform form.
    10     (a)  Commonwealth agencies.--The clearinghouse shall develop
    11  a uniform form which shall be accepted by all Commonwealth and
    12  local agencies in addition to any form used by the agency to
    13  file a request under this act. The uniform form shall be
    14  published in the Pennsylvania Bulletin and on the
    15  clearinghouse's Internet website.
    16     (b)  Judicial agencies.--A judicial agency may develop a form
    17  to request financial records or may use a form developed by the
    18  Administrative Office of Pennsylvania Courts or the
    19  clearinghouse.
    20     (c)  Legislative agencies.--A legislative agency may develop
    21  a form to request legislative records or may use the form
    22  developed by the clearinghouse.
    23  Section 506.  Requests.
    24     (a)  Disruptive requests.--
    25         (1)  An agency may deny a requester access to a record if
    26     the requester has made repeated requests for that same record
    27     which requests have placed an unreasonable burden on the
    28     agency.
    29         (2)  A denial under this subsection shall not restrict
    30     the ability to request a different record.
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     1     (b)  Disaster or potential damage.--
     2         (1)  An agency may deny a requester access:
     3             (i)  when timely access is not possible due to fire,
     4         flood or other disaster; or
     5             (ii)  to historical, ancient or rare documents,
     6         records, archives and manuscripts when access may, in the
     7         professional judgment of the curator or custodian of
     8         records, cause physical damage or irreparable harm to the
     9         record.
    10         (2)  To the extent possible, the contents of a record
    11     under this subsection shall be made accessible to a requester
    12     even when the record is physically unavailable.
    13     (c)  Agency discretion.--An agency may exercise its
    14  discretion to make any otherwise exempt record accessible for
    15  inspection and copying under this chapter, if all of the
    16  following apply:
    17         (1)  Disclosure of the record is not prohibited under any
    18     of the following:
    19             (i)  Federal or State law or regulation.
    20             (ii)  Judicial order or decree.
    21         (2)  The record is not protected by a privilege.
    22         (3)  The agency head determines that the public interest
    23     favoring access outweighs any individual, agency or public
    24     interest that may favor restriction of access.
    25     (d)  Agency possession.--
    26         (1)  A public record that is not in the possession of an
    27     agency but is in the possession of a party with whom the
    28     agency has contracted to perform a governmental function for
    29     the agency, and which directly relates to the governmental
    30     function and is not exempt under section 305, shall be
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     1     considered a public record of the agency for purposes of this
     2     act.
     3         (2)  Nothing in this act shall be construed to require
     4     access to any other PUBLIC record of the party in possession   <--
     5     of the record.
     6         (3)  A request for a PUBLIC record in possession of a      <--
     7     party other than the agency shall be submitted to the open
     8     records officer of the agency. The open records officer shall
     9     assess the duplication fee established under section 1307(b)
    10     and remit the fee to the party in possession of the record if
    11     the party duplicated the record.
    12  Section 507.  Retention of records.
    13     Nothing in this act shall be construed to modify, rescind or
    14  supersede any record retention disposition schedule of an agency
    15  established pursuant to law, regulation, policy or other
    16  directive.
    17                             CHAPTER 7
    18                             PROCEDURE
    19  Section 701.  Access to public records.
    20     (a)  General rule.--Unless otherwise provided by law, a
    21  public record, legislative record or financial record shall be
    22  accessible for inspection and duplication in accordance with
    23  this act. A record shall be provided to a requester in the
    24  medium requested if the public record exists in that medium;
    25  otherwise, it shall be provided in the medium in which it
    26  exists. Public records, legislative records or financial records
    27  shall be available for access during the regular business hours
    28  of an agency.
    29     (b)  Construction.--Nothing in this act shall be construed to
    30  require access to the computer of an agency or individual
    20070S0001B1562                 - 16 -     

     1  employee of an agency.
     2  Section 702.  Requests.
     3     Agencies may fulfill informal verbal, written or anonymous
     4  verbal or written requests for access to records under this act.
     5  In the event that the requester wishes to pursue the relief and
     6  remedies provided for in this act, the requester must initiate
     7  such relief with a written request.
     8  Section 703.  Written requests.
     9     A written request for access to records may be submitted in
    10  person, by mail, by e-mail, by facsimile or, to the extent
    11  provided by agency rules, any other electronic means. A written
    12  request shall be addressed to the agency head or open-records
    13  officer designated in section 502. A written request should
    14  identify or describe the records sought with sufficient
    15  specificity to enable the agency to ascertain which records are
    16  being requested and shall include the name and address to which
    17  the agency should address its response. A written request need
    18  not include any explanation of the requester's reason for
    19  requesting or intended use of the records.
    20  Section 704.  Electronic access.
    21     (a)  General rule.--In addition to the requirements of
    22  section 701, an agency may make its records available through
    23  any publicly accessible electronic means.
    24     (b)  Response.--
    25         (1)  In addition to the requirements of section 701, an
    26     agency may respond to a request by notifying the requester
    27     that the record is available through publicly accessible
    28     electronic means or that the agency will provide access to
    29     inspect the record electronically.
    30         (2)  If the requester is unwilling or unable to use the
    20070S0001B1562                 - 17 -     

     1     electronic access, the requester may submit a written request
     2     to the agency, within 30 days following receipt of the agency
     3     notification, to have the record converted to paper. The
     4     agency shall provide the record in printed form within five
     5     days of the receipt of the written request for conversion to
     6     paper.
     7  Section 705.  Creation of record.
     8     When responding to a request for access, an agency shall not
     9  be required to create a record which does not currently exist or
    10  to compile, maintain, format or organize a record in a manner in
    11  which the agency does not currently compile, maintain, format or
    12  organize the record.
    13  Section 706.  Redaction.
    14     If an agency determines that a public record, legislative
    15  record or financial record contains information which is subject
    16  to access as well as information which is not subject to access
    17  under section 305 or 708, the agency's response shall grant
    18  access to the information which is subject to access and deny
    19  access to the information which is not subject to access. If the
    20  information which is not subject to access is an integral part
    21  of the public record, legislative record or financial record and
    22  cannot be separated, the agency shall redact from the record the
    23  information which is not subject to access, and the response
    24  shall grant access to the information which is subject to
    25  access. The agency may not deny access to the record if the
    26  information which is not subject to access is able to be
    27  redacted. Information which an agency redacts in accordance with
    28  this subsection shall be deemed a denial under Chapter 9.
    29  Section 707.  Production of certain records.
    30     (a)  General rule.--If, in response to a request, an agency
    20070S0001B1562                 - 18 -     

     1  produces a record that is not a public record, legislative
     2  record or financial record, the agency shall notify any third
     3  party that provided the record to the agency, the person that is
     4  the subject of the record and the requester.
     5     (b)  Requests for trade secrets.--An agency shall notify a
     6  third party of a request for a record if the third party
     7  provided the record and included a written statement signed by a
     8  representative of the third party that the record contains a
     9  trade secret or confidential proprietary information.
    10  Notification shall be provided within five business days of
    11  receipt of the request for the record. The third party shall
    12  have five business days from receipt of notification from the
    13  agency to provide input on the release of the record. The agency
    14  shall deny the request for the record or release the record
    15  within ten business days of the provision of notice to the third
    16  party and shall notify the third party of the decision.
    17     (C)  TRANSCRIPTS.--                                            <--
    18         (1)  EXCEPT AS SET FORTH IN PARAGRAPH (2), A TRANSCRIPT
    19     OF AN ADMINISTRATIVE PROCEEDING SHALL NOT BECOME A PUBLIC
    20     RECORD UNTIL THE FINAL ADJUDICATION.
    21         (2)  TRANSCRIPTS SHALL BE PROVIDED TO PARTIES AND THEIR
    22     ATTORNEYS PRIOR TO FINAL ADJUDICATION BY THE AGENCY
    23     STENOGRAPHER OR A COURT REPORTER, IN ACCORDANCE WITH AGENCY
    24     PROCEDURE OR AN APPLICABLE CONTRACT.
    25  Section 708.  Exceptions for public records.
    26     (a)  Burden of proof.--The burden of proving that a public
    27  record is exempt from public access shall be on the Commonwealth
    28  or local agency receiving a request by a preponderance of the
    29  evidence.
    30     (b)  Exceptions.--In the case of a public record, unless
    20070S0001B1562                 - 19 -     

     1  disclosure is otherwise required by law, the following are
     2  exempt from access by a requester under this act:
     3         (1)  A record the disclosure of which:
     4             (i)  would result in the loss of Federal or State
     5         funds by an agency or the Commonwealth; or
     6             (ii)  would be reasonably likely to result in a
     7         substantial and demonstrable risk of physical harm to an
     8         individual.
     9         (2)  A record maintained by an agency in connection with
    10     the military, homeland security, national defense, law
    11     enforcement or other public safety activity that if disclosed
    12     would be reasonably likely to jeopardize or threaten public
    13     safety or preparedness or public protection activity or a
    14     record that is designated classified by an appropriate
    15     Federal or State military authority.
    16         (3)  A record, the disclosure of which creates a
    17     reasonable likelihood of endangering the life, safety or the
    18     physical security of a building, public utility, resource,
    19     infrastructure, facility or information storage system, which
    20     may include:
    21             (i)  documents or data relating to computer hardware,
    22         source files, software and system networks that could
    23         jeopardize computer security by exposing a vulnerability
    24         in preventing, protecting against, mitigating or
    25         responding to a terrorist act;
    26             (ii)  lists of infrastructure, resources and
    27         significant special events, including those defined by
    28         the Federal Government in the National Infrastructure
    29         Protections, which are deemed critical due to their
    30         nature and which result from risk analysis; threat
    20070S0001B1562                 - 20 -     

     1         assessments; consequences assessments; antiterrorism
     2         protective measures and plans; counterterrorism measures
     3         and plans; and security and response needs assessments;
     4         and
     5             (iii)  building plans or infrastructure records that
     6         expose or create vulnerability through disclosure of the
     7         location, configuration or security of critical systems,
     8         including public utility systems, structural elements,
     9         technology, communication, electrical, fire suppression,
    10         ventilation, water, wastewater, sewage and gas systems.
    11         (4)  A record regarding computer hardware, software and
    12     networks, including administrative or technical records,
    13     which, if disclosed, would be reasonably likely to jeopardize
    14     computer security.
    15         (5)  A record of an individual's medical, psychiatric or
    16     psychological history or disability status, including
    17     evaluation, consultation, a prescription, diagnosis or
    18     treatment; results of tests, including drug tests; enrollment
    19     in a health care program or program designed for
    20     participation by persons with disabilities, including
    21     vocation rehabilitation, workers' compensation and
    22     unemployment compensation; or related information that would
    23     disclose individually identifiable health information.
    24         (6)  (i)  The following personal identification
    25         information:
    26                 (A)  A record containing all or part of an
    27             individual's Social Security number; driver's license
    28             number; personal financial information of an
    29             individual; home, cellular or personal telephone
    30             number; personal e-mail address; employee number;
    20070S0001B1562                 - 21 -     

     1             other personal identification number.
     2                 (B)  A spouse's name; marital status, beneficiary
     3             or dependent information.
     4             (ii)  Nothing in this paragraph shall preclude the
     5         release of the name, position, salary, actual
     6         compensation or other payments or expenses, employment
     7         contract or agreement and length of service of a public
     8         official or an agency employee.
     9             (iii)  An agency may redact the name or other
    10         identifying information relating to an individual
    11         performing an undercover or covert law enforcement
    12         activity from a record.
    13         (7)  The following records relating to an agency
    14     employee:
    15             (i)  A letter of reference or recommendation
    16         pertaining to the character or qualifications of an
    17         identifiable individual, unless it was prepared in
    18         relation to the appointment of an individual to fill a
    19         vacancy in an elected office or an appointed office
    20         requiring Senate confirmation.
    21             (ii)  A performance rating or review.
    22             (iii)  The result of a civil service or similar test
    23         administered by a Commonwealth agency, legislative agency
    24         or judicial agency. The result of a civil service or
    25         similar test administered by a local agency shall not be
    26         disclosed if restricted by a collective bargaining
    27         agreement. Only test scores of individuals who obtained a
    28         passing score on a test administered by a local agency
    29         may be disclosed.
    30             (iv)  The employment application of an individual who
    20070S0001B1562                 - 22 -     

     1         is not hired by the agency.
     2             (v)  Workplace support services program information.
     3             (vi)  Written criticisms of an employee.
     4             (vii)  Grievance material, including documents
     5         related to discrimination or sexual harassment.
     6             (viii)  (A)  Information regarding discipline,
     7             demotion or discharge contained in a personnel file.
     8                 (B)  This subparagraph shall not apply to the
     9             final action of an agency that results in demotion or
    10             discharge.
    11         (8)  (i)  A record pertaining to strategy or negotiations
    12         relating to labor relations or collective bargaining or
    13         arbitration award.
    14             (ii)  This paragraph does not apply to any final or
    15         executed contract or agreement or arbitration award
    16         between the parties.
    17         (9)  The draft of a bill, resolution, regulation,
    18     statement of policy, management directive, ordinance or
    19     amendment thereto prepared by or for an agency.
    20         (10)  (i)  A record that reflects:
    21                 (A)  The internal, predecisional deliberations of
    22             an agency, its members, employees or officials or
    23             predecisional deliberations between agency members,
    24             employees or officials and members, employees or
    25             officials of another agency, including predecisional
    26             deliberations relating to a budget recommendation,
    27             legislative proposal, legislative amendment,
    28             contemplated or proposed policy or course of action
    29             or any research, memos or other documents used in the
    30             predecisional deliberations.
    20070S0001B1562                 - 23 -     

     1                 (B)  The strategy to be used to develop or
     2             achieve the successful adoption of a budget,
     3             legislative proposal or regulation.
     4             (ii)  This paragraph applies to:
     5                 (A)  The Governor's Office, the head of a
     6             Commonwealth agency and the staff of the Governor or
     7             agency.
     8                 (B)  The chief executive officer or governing
     9             body of a local agency, or a member or staff of the
    10             local agency prior to the presentation of the
    11             decision, policy, proposal or course of action to a
    12             quorum of the governing body.
    13             (iii)  This paragraph does not apply to a written
    14         application or other document used to request
    15         Commonwealth funds.
    16         (11)  A record that constitutes or reveals a trade secret
    17     or confidential proprietary information.
    18         (12)  Notes and working papers prepared by or for a
    19     public official or agency employee used solely for that
    20     official's or employee's own personal use, including
    21     telephone message slips, routing slips and other materials
    22     that do not have an official purpose.
    23         (13)  Records that would disclose the identity of an
    24     individual who lawfully makes a donation to an agency unless
    25     the donation is intended for or restricted to providing
    26     remuneration or personal tangible benefit to a named public
    27     official or employee of the agency, including lists of
    28     potential donors compiled by an agency to pursue donations,
    29     donor profile information or personal identifying information
    30     relating to a donor.
    20070S0001B1562                 - 24 -     

     1         (14)  Unpublished lecture notes, unpublished manuscripts,
     2     unpublished articles, creative works in progress, research-
     3     related material and scholarly correspondence of a community
     4     college or an institution of the State System of Higher
     5     Education or a faculty member, staff employee, guest speaker
     6     or student thereof.
     7         (15)  Examination questions, scoring keys or answers to
     8     an examination.
     9         (16)  A record of an agency relating to or resulting in a
    10     criminal investigation, including:
    11             (i)  Complaints of potential criminal conduct other
    12         than a private criminal complaint.
    13             (ii)  Investigative materials, notes, correspondence
    14         and reports.
    15             (iii)  A record that includes the identity of a
    16         confidential source or the identity of a suspect who has
    17         not been charged with an offense to whom confidentiality
    18         has been promised.
    19             (iv)  A record that includes information made
    20         confidential by law or court order.
    21             (v)  Victim information, including any information
    22         that would jeopardize the safety of the victim.
    23             (vi)  A record that, if disclosed, would do any of
    24         the following:
    25                 (A)  Reveal the institution, progress or result
    26             of a criminal investigation, except the filing of
    27             criminal charges.
    28                 (B)  Deprive a person of the right to a fair
    29             trial or an impartial adjudication.
    30                 (C)  Impair the ability to locate a defendant or
    20070S0001B1562                 - 25 -     

     1             codefendant.
     2                 (D)  Hinder an agency's ability to secure an
     3             arrest, prosecution or conviction.
     4                 (E)  Endanger the life or physical safety of an
     5             individual.
     6         (17)  A record of an agency relating to a noncriminal
     7     investigation, including:
     8             (i)  Complaints submitted to an agency.
     9             (ii)  Investigative materials, notes, correspondence
    10         and reports.
    11             (iii)  A record that includes the identity of a
    12         confidential source, including individuals subject to the
    13         act of December 12, 1986 (P.L.1559, No.169), known as the
    14         Whistleblower Law.
    15             (iv)  A record that includes information made
    16         confidential by law or court order.                        <--
    17             (v)  Work papers underlying an audit.
    18             (vi)  A record that, if disclosed, would do any of
    19         the following:
    20                 (A)  Reveal the institution, progress or result
    21             of an agency investigation, except the imposition of
    22             a fine or civil penalty or the suspension,
    23             modification or revocation of a license, permit,
    24             registration, certification or similar authorization
    25             issued by an agency.
    26                 (B)  Deprive a person of the right to an
    27             impartial adjudication.
    28                 (C)  Constitute an unwarranted invasion of
    29             privacy.
    30                 (D)  Hinder an agency's ability to secure an
    20070S0001B1562                 - 26 -     

     1             administrative or civil sanction.
     2                 (E)  Endanger the life or physical safety of an
     3             individual.
     4         (18)  911 recordings.
     5         (19)  DNA records.
     6         (20)  An autopsy record of a coroner or medical examiner
     7     and any audiotape of a postmortem examination or autopsy, or
     8     a copy, reproduction or facsimile of a photograph, negative
     9     or print, including a photograph or videotape of the body or
    10     any portion of the body of a deceased person at the scene of
    11     death or in the course of a postmortem examination or autopsy
    12     taken or made by or caused to be taken or made by the coroner
    13     or medical examiner. This exception shall not limit the
    14     reporting of the name of the deceased individual, the cause
    15     of death and whether the death was caused by criminal
    16     activity or criminal negligence in accordance with section
    17     1251 of the act of August 9, 1955 (P.L.323, No.130), known as
    18     The County Code.
    19         (21)  Minutes of an executive session and any record of
    20     discussions held in executive session.
    21         (22)  (i)  The contents of real estate appraisals,
    22         engineering or feasibility estimates, environmental
    23         reviews, audits or evaluations made for or by an agency
    24         relative to the following:
    25                 (A)  The leasing, acquiring or disposing of real
    26             property.
    27                 (B)  The purchase of public supplies or equipment
    28             included in the real estate transaction.
    29                 (C)  Construction projects.
    30             (ii)  This paragraph does not apply once the decision
    20070S0001B1562                 - 27 -     

     1         is made to proceed with the lease, acquisition or
     2         disposal of real property or the purchase of public
     3         supply or construction project.
     4         (23)  Library and archive circulation and order records
     5     of an identifiable individual or groups of individuals.
     6         (24)  Library archived and museum materials, or valuable
     7     or rare book collections or documents contributed by gift,
     8     grant, bequest or devise, to the extent of any limitations
     9     imposed by the donor as a condition of the contribution.
    10         (25)  A record identifying the location of an
    11     archeological site or an endangered or threatened plant or
    12     animal species if not already known to the general public.
    13         (26)  A proposal pertaining to agency procurement or
    14     disposal of supplies, services or construction prior to the
    15     award of the contract or prior to the opening and rejection
    16     of all bids; financial information of a bidder or offeror
    17     requested in an invitation for bid or request for proposals
    18     to demonstrate the bidder's or offeror's economic capability;
    19     or the identity of members, notes and other records of agency
    20     proposal evaluation committees established under 62 Pa.C.S. §
    21     513 (relating to competitive sealed proposals).
    22         (27)  A record or information relating to a communication
    23     between an agency and its insurance carrier, administrative
    24     service organization or risk management office. This
    25     paragraph does not apply to a contract with an insurance
    26     carrier, administrative service organization or risk
    27     management office or to financial records relating to the
    28     provision of insurance.
    29         (28)  A record or information:
    30             (i)  identifying an individual who applies for or
    20070S0001B1562                 - 28 -     

     1         receives social services; or
     2             (ii)  relating to the following:
     3                 (A)  the type of social services received by an
     4             individual;
     5                 (B)  an individual's application to receive
     6             social services, including a record or information
     7             related to an agency decision to grant, deny, reduce
     8             or restrict benefits, including a quasi-judicial
     9             decision of the agency and the identity of a
    10             caregiver or others who provide services to the
    11             individual; or
    12                 (C)  eligibility to receive social benefits,
    13             including the individual's income, assets, physical
    14             or mental health, age, disability, family
    15             circumstances or record of abuse.
    16     (c)  Financial records.--The exceptions set forth in
    17  subsection (b) shall not apply to financial records, except for
    18  financial records protected under subsection (b)(1), (2), (3) or
    19  (4), personal financial information or individual medical
    20  information under subsection (b)(5). An agency may redact that
    21  portion of a financial record which would disclose information
    22  protected by subsection (b)(6) or disclose the identity of a
    23  crime victim, confidential source or an individual performing an
    24  undercover or covert law enforcement activity under subsection
    25  (b)(16) or (17).
    26     (d)  Aggregated data.--The exceptions set forth in subsection
    27  (b) shall not apply to aggregated data, maintained or received
    28  by an agency, except for data protected under subsection (b)(1),
    29  (2), (3) or (4).
    30                             CHAPTER 9
    20070S0001B1562                 - 29 -     

     1                          AGENCY RESPONSE
     2  Section 901.  General rule.
     3     Upon receipt of a written request for access to a record, an
     4  agency shall make a good faith effort to determine if the record
     5  requested is a public record, legislative record or financial
     6  record and whether the agency has possession, custody or control
     7  of the identified record, and to respond as promptly as possible
     8  under the circumstances existing at the time of the request. The
     9  time for response shall not exceed five business days from the
    10  date the written request is received by the agency head or open-
    11  records officer for an agency. If the agency fails to send the
    12  response within five business days of receipt of the written
    13  request for access, the written request for access shall be
    14  deemed denied.
    15  Section 902.  Extension of time.
    16     (a)  Determination.--Upon receipt of a written request for
    17  access, the open-records officer for an agency shall determine
    18  if one of the following applies:
    19         (1)  the request for access requires redaction of a
    20     record in accordance with section 706;
    21         (2)  the request for access requires the retrieval of a
    22     record stored in a remote location;
    23         (3)  a timely response to the request for access cannot
    24     be accomplished due to bona fide and specified staffing
    25     limitations;
    26         (4)  a legal review is necessary to determine whether the
    27     record is a record subject to access under this act;
    28         (5)  the requester has not complied with the Commonwealth
    29     agency's policies regarding access to records;
    30         (6)  the requester refuses to pay applicable fees
    20070S0001B1562                 - 30 -     

     1     authorized by this act; or
     2         (7)  the extent or nature of the request precludes a
     3     response within the required time period.
     4     (b)  Notice.--
     5         (1)  Upon a determination that one of the factors listed
     6     in subsection (a) applies, the open-records officer shall
     7     send written notice to the requester within five business
     8     days of receipt of the request for access under subsection
     9     (a).
    10         (2)  The notice shall include a statement notifying the
    11     requester that the request for access is being reviewed, the
    12     reason for the review and a reasonable date that a response
    13     is expected to be provided. If the date that a response is
    14     expected to be provided is in excess of 30 days, following
    15     the five business days allowed for in section 901, the
    16     request for access shall be deemed denied unless the
    17     requester has agreed in writing for an extension to the date
    18     specified in the notice.
    19         (3)  If the requester agrees to the extension, the
    20     request shall be deemed denied on the day following the date
    21     specified in the notice if the agency has not provided a
    22     response by that date.
    23  Section 903.  Denial.
    24     If an agency's response is a denial of a written request for
    25  access, whether in whole or in part, a written response shall be
    26  issued and include:
    27         (1)  A description of the record requested.
    28         (2)  The specific reasons for the denial, including a
    29     citation of supporting legal authority.
    30         (3)  The typed or printed name, title, business address,
    20070S0001B1562                 - 31 -     

     1     business telephone number and signature of the agency head or
     2     open-records officer on whose authority the denial is issued.
     3         (4)  Date of the response.
     4         (5)  The procedure to appeal the denial of access under
     5     this act.
     6  Section 904.  Certified copies.
     7     If an agency's response grants a request for access, the
     8  agency shall, upon request, provide the requester with a
     9  certified copy of the record if the requester pays the
    10  applicable fees pursuant to section 1307.
    11                             CHAPTER 11
    12                   APPEAL OF AGENCY DETERMINATION
    13  Section 1101.  Filing of appeal.
    14     (a)  Authorization.--
    15         (1)  If a written request for access is denied or deemed
    16     denied, the requester may file an appeal with the
    17     clearinghouse or other appropriate appeals officer within 15
    18     business days of the mailing date of the agency's response or
    19     within 15 business days of a deemed denial. The appeal shall
    20     state the grounds upon which the requester asserts that the
    21     record is a public record, legislative record or financial
    22     record and shall address any grounds stated by the agency for
    23     delaying or denying the request.
    24         (2)  In the case of an appeal of a decision by a
    25     Commonwealth agency or local agency, the clearinghouse shall
    26     assign an appeals officer to review the denial.
    27     (b)  Determination.--
    28         (1)  Unless the requester agrees otherwise, the appeals
    29     officer shall make a final determination which shall be
    30     mailed to the requester and the agency within 30 days of
    20070S0001B1562                 - 32 -     

     1     receipt of the appeal filed under subsection (a).
     2         (2)  If the appeals officer fails to issue a final
     3     determination within 30 days, the appeal is deemed denied.
     4         (3)  Prior to issuing a final determination, a hearing
     5     may be conducted. The determination by the appeals officer
     6     shall be a final order. The appeals officer shall provide a
     7     written explanation of the reason for the decision to the
     8     requester and the agency.
     9     (c)  Direct interest.--
    10         (1)  A person other than the agency or requester with a
    11     direct interest in the record subject to an appeal under this
    12     section may, within 15 calendar days following receipt of
    13     actual knowledge of the appeal but no later than the date the
    14     appeals officer issues an order, file a written request to
    15     provide information or appear before the appeals officer or
    16     to file information in support of the requester's or agency's
    17     position.
    18         (2)  The appeals officer may grant the request if:
    19             (i)  no hearing has been held;
    20             (ii)  the office has not yet issued its order; and
    21             (iii)  the appeals officer believes the information
    22         will be probative.
    23         (3)  Copies of the written request shall be sent to the
    24     agency and the requester.
    25  Section 1102.  Appeals officers.
    26     (a)  Scope.--This section applies to all agencies.
    27     (b)  Duties.--The appeals officer shall do all of the
    28  following:
    29         (1)  Set a schedule for the requester and the open-
    30     records officer to submit documents in support of their
    20070S0001B1562                 - 33 -     

     1     positions.
     2         (2)  Review all information filed relating to the
     3     request. The appeals officer may hold a hearing. A decision
     4     to hold or not to hold a hearing is not appealable. The
     5     appeals officer may admit into evidence testimony, evidence
     6     and documents that the appeals officer believes to be
     7     reasonably probative and relevant to an issue in dispute. The
     8     appeals officer may limit the nature and extent of evidence
     9     found to be cumulative.
    10         (3)  Consult with agency counsel as appropriate.
    11         (4)  Issue a final determination on behalf of the agency.
    12     (c)  Procedures.--The clearinghouse, a judicial agency or a
    13  legislative agency may adopt procedures relating to appeals
    14  under this chapter.
    15         (1)  If an appeal is resolved without a hearing, 1 Pa.
    16     Code Pt. II (relating to general rules of administrative
    17     practice and procedure) does not apply except to the extent
    18     that the clearinghouse, legislative agency or judicial agency
    19     has adopted these chapters in its regulations or rules.
    20         (2)  If a hearing is held, 1 Pa. Code Pt. II shall apply
    21     unless the clearinghouse, the judicial agency or the
    22     legislative agency has adopted regulations or rules to the
    23     contrary.
    24         (3)  In the absence of a regulation or rule governing
    25     appeals under this chapter, the appeals officer shall rule on
    26     procedural matters on the basis of justice, fairness and the
    27     expeditious resolution of the dispute.
    28                             CHAPTER 13
    29                          JUDICIAL REVIEW
    30  Section 1301.  Commonwealth agencies, legislative agencies and
    20070S0001B1562                 - 34 -     

     1                 judicial agencies.
     2     (a)  General rule.--Within 30 days of the mailing date of the
     3  final determination of the appeals officer relating to a
     4  decision of a Commonwealth agency, a legislative agency or a
     5  judicial agency issued under section 1103 or the date a request
     6  for access is deemed denied, a requester or the agency may file
     7  a petition for review or other document as might be required by
     8  rule of court with the Commonwealth Court. The decision of the
     9  court shall contain findings of fact and conclusions of law
    10  based upon the evidence as a whole. The decision shall clearly
    11  and concisely explain the rationale for the decision.
    12     (b)  Stay.--An appeal under this section shall stay the
    13  release of documents until a decision under subsection (a) is
    14  issued.
    15  Section 1302.  Local agencies.
    16     (a)  General rule.--Within 30 days of the mailing date of the
    17  final determination of the appeals officer relating to a
    18  decision of a local agency issued under section 1103 or of the
    19  date a request for access is deemed denied, a requester or local
    20  agency may file a petition for review or other document as
    21  required by rule of court with the court of common pleas for the
    22  county where the local agency is located. The decision of the
    23  court shall contain findings of fact and conclusions of law
    24  based upon the evidence as a whole. The decision shall clearly
    25  and concisely explain the rationale for the decision.
    26     (b)  Stay.--An appeal under this section shall stay the
    27  release of documents until a decision under subsection (a) is
    28  issued.
    29  Section 1303.  Notice and records.
    30     (a)  Notice.--An agency, the requester and the appeals
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     1  officer shall be served notice of actions commenced in
     2  accordance with section 1301 or 1302 and shall have an
     3  opportunity to respond in accordance with applicable court
     4  rules.
     5     (b)  Record on appeal.--The record before a court shall
     6  consist of the request, the agency's response, the appeal filed
     7  under section 1101, the hearing transcript, if any, and the
     8  final written determination of the appeals officer.
     9  Section 1304.  Court costs and attorney fees.
    10     (a)  Reversal of agency determination.--If a court reverses
    11  the final determination of the appeals officer or grants access
    12  after a request for access was deemed denied, the court may
    13  award reasonable attorney fees and costs of litigation or an
    14  appropriate portion thereof to a requester if the court finds
    15  either of the following:
    16         (1)  the agency receiving the original request willfully
    17     or with wanton disregard deprived the requester of access to
    18     a public record subject to access or otherwise acted in bad
    19     faith under the provisions of this act; or
    20         (2)  the exemptions, exclusions or defenses asserted by
    21     the agency in its final determination were not based on a
    22     reasonable interpretation of law.
    23     (b)  Sanctions for frivolous requests or appeals.--The court
    24  may award reasonable attorney fees and costs of litigation or an
    25  appropriate portion thereof to an agency or the requester if the
    26  court finds that the legal challenge under this chapter was
    27  frivolous.
    28     (c)  Other sanctions.--Nothing in this act shall prohibit a
    29  court from imposing penalties and costs in accordance with
    30  applicable rules of court.
    20070S0001B1562                 - 36 -     

     1  Section 1305.  Civil penalty.
     2     (a)  Denial of access.--A court may impose a civil penalty of
     3  not more than $1,000 if an agency denied access to a public
     4  record in bad faith.
     5     (b)  Failure to comply with court order.--An agency or public
     6  official who does not promptly comply with a court order under
     7  this act is subject to a civil penalty of not more than $500 per
     8  day until the public records are provided.
     9  Section 1306.  Immunity.
    10     (a)  General rule.--Except as provided in sections 1304 and
    11  1305 and other statutes governing the release of records, no
    12  agency, public official or public employee shall be liable for
    13  civil or criminal damages or penalties resulting from compliance
    14  or failure to comply with this act.
    15     (b)  Schedules.--No agency, public official or public
    16  employee shall be liable for civil or criminal damages or
    17  penalties under this act for complying with any written public
    18  record retention and disposition schedule.
    19  Section 1307.  Fee limitations.
    20     (a)  Postage.--Fees for postage may not exceed the actual
    21  cost of mailing.
    22     (b)  Duplication.--
    23         (1)  Fees for duplication by photocopying, printing from
    24     electronic media or microfilm, copying onto electronic media,
    25     transmission by facsimile or other electronic means and other
    26     means of duplication shall be established:
    27             (i)  by the clearinghouse, for Commonwealth agencies
    28         and local agencies;
    29             (ii)  by each judicial agency; and
    30             (iii)  by each legislative agency.
    20070S0001B1562                 - 37 -     

     1         (2)  The fees must be reasonable and based on prevailing
     2     fees for comparable duplication services provided by local
     3     business entities.
     4         (3)  Fees for local agencies may reflect regional price
     5     differences.
     6         (4)  FEES FOR COPYING COMPLEX AND EXTENSIVE DATA SETS,     <--
     7     INCLUDING GEOGRAPHIC INFORMATION SYSTEMS AND INTEGRATED
     8     PROPERTY ASSESSMENT LISTS, MAY BE BASED ON CONSIDERATION OF
     9     THE REASONABLE MARKET VALUE OF THE SAME OR CLOSELY RELATED
    10     DATA SETS.
    11     (c)  Certification.--An agency may impose reasonable fees for
    12  official certification of copies if the certification is at the
    13  behest of the requester and for the purpose of legally verifying
    14  the public record.
    15     (d)  Conversion to paper.--If a record is only maintained
    16  electronically or in other nonpaper media, duplication fees
    17  shall be limited to the lesser of the fee for duplication on
    18  paper or the fee for duplication in the original media as
    19  provided by subsection (b) unless the requester specifically
    20  requests for the record to be duplicated in the more expensive
    21  medium.
    22     (e)  Enhanced electronic access.--If an agency offers
    23  enhanced electronic access to records in addition to making the
    24  records accessible for inspection and duplication by a requester
    25  as required by this act, the agency may establish user fees
    26  specifically for the provision of the enhanced electronic
    27  access, but only to the extent that the enhanced electronic
    28  access is in addition to making the records accessible for
    29  inspection and duplication by a requester as required by this
    30  act. The user fees for enhanced electronic access may be a flat
    20070S0001B1562                 - 38 -     

     1  rate, a subscription fee for a period of time, a per-transaction
     2  fee, a fee based on the cumulative time of system access or any
     3  other reasonable method and any combination thereof. The user
     4  fees for enhanced electronic access must be reasonable, must be
     5  approved by the clearinghouse and may not be established with
     6  the intent or effect of excluding persons from access to records
     7  or duplicates thereof or of creating profit for the agency.
     8     (f)  Waiver of fees.--An agency may waive the fees for
     9  duplication of a record, including, but not limited to, when:
    10         (1)  the requester duplicates the record; or
    11         (2)  the agency deems it is in the public interest to do
    12     so.
    13     (g)  Limitations.--Except as otherwise provided by statute,
    14  no other fees may be imposed unless the agency necessarily
    15  incurs costs for complying with the request, and such fees must
    16  be reasonable. No fee may be imposed for an agency's review of a
    17  record to determine whether the record is a public record,
    18  legislative record or financial record subject to access in
    19  accordance with this act.
    20     (h)  Prepayment.--Prior to granting a request for access in
    21  accordance with this act, an agency may require a requester to
    22  prepay an estimate of the fees authorized under this section if
    23  the fees required to fulfill the request are expected to exceed
    24  $100.
    25  Section 1308.  Prohibition.
    26     A policy, rule or regulation adopted under this act may not
    27  include any of the following:
    28         (1)  A limitation on the number of records which may be
    29     requested or made available for inspection or duplication.
    30         (2)  A requirement to disclose the purpose or motive in
    20070S0001B1562                 - 39 -     

     1     requesting access to records.
     2  Section 1309.  Practice and procedure.
     3     The provisions of 2 Pa.C.S. (relating to administrative law
     4  and procedure) shall not apply to this act unless specifically
     5  adopted by rule or regulation.
     6  Section 1310.  Clearinghouse.
     7     (a)  Establishment.--There is hereby established in the
     8  Department of Community and Economic Development an Open Records
     9  Clearinghouse. The clearinghouse shall do all of the following:
    10         (1)  Provide information relating to the implementation
    11     and enforcement of this act.
    12         (2)  Issue advisory opinions to agencies and requesters.
    13         (3)  Provide annual training courses to agencies on this
    14     act and 65 Pa.C.S. Ch. 7 (relating to open meetings).
    15         (4)  Provide annual, regional training courses to local
    16     agencies.
    17         (5)  Review appeals of decisions by Commonwealth agencies
    18     or local agencies except as provided in section 503(d) filed
    19     under section 1101 and issue orders and opinions. The
    20     clearinghouse shall employ or contract with attorneys to
    21     serve as appeals officers to review appeals and, if
    22     necessary, to hold hearings on a regional basis under this
    23     act. Each appeals officer must comply with all of the
    24     following:
    25             (i)  Complete a training course provided by the
    26         clearinghouse prior to acting as an appeals officer.
    27             (ii)  If a hearing is necessary, hold hearings
    28         regionally as necessary to ensure access to the remedies
    29         provided by this act.
    30             (iii)  Comply with the procedures under section
    20070S0001B1562                 - 40 -     

     1         1102(b).
     2         (6)  Establish an informal mediation program to resolve
     3     disputes under this act.
     4         (7)  Establish an Internet website with information
     5     relating to this act, including advisory opinions and
     6     decisions and the name and address of all open records
     7     officers in this Commonwealth.
     8         (8)  Conduct a biannual review of fees charged under this
     9     act.
    10         (9)  Annually report on its activities and findings to
    11     the Governor and the General Assembly. The report shall be
    12     posted and maintained on the Internet website established
    13     under paragraph (7).
    14     (b)  Executive director.--The Governor shall appoint an
    15  executive director of the clearinghouse who shall serve for a
    16  term of six years. Compensation shall be set by the Executive
    17  Board established under section 204 of the act of April 9, 1929
    18  (P.L.177, No.175), known as The Administrative Code of 1929. The
    19  executive director may serve no more than two terms.
    20     (c)  Limitation.--The executive director shall not seek
    21  election nor accept appointment to any political office during
    22  his tenure as executive director and for one year thereafter.
    23     (d)  Staffing.--The executive director shall appoint
    24  attorneys to act as appeals officers and additional clerical,
    25  technical and professional staff as may be appropriate and may
    26  contract for additional services as necessary for the
    27  performance of the executive director's function. The
    28  compensation of attorneys and other staff shall be set by the
    29  Executive Board.
    30     (e)  Duties.--The executive director shall ensure that the
    20070S0001B1562                 - 41 -     

     1  duties of the clearinghouse are carried out and shall monitor
     2  cases appealed to the clearinghouse.
     3     (f)  Appropriation.--The appropriation for the clearinghouse
     4  shall be in a separate line item and shall be under the
     5  jurisdiction of the executive director.
     6                             CHAPTER 15
     7                     STATE-RELATED INSTITUTIONS
     8  Section 1501.  Definition.
     9     As used in this chapter, "State-related institution" means
    10  any of the following:
    11         (1)  Temple University.
    12         (2)  The University of Pittsburgh.
    13         (3)  The Pennsylvania State University.
    14         (4)  Lincoln University.
    15  Section 1502.  Reporting.
    16     No later than May 30 of each year, a State-related
    17  institution shall file with the Governor's Office, the General
    18  Assembly, the Auditor General and the State Library the
    19  information set forth in section 1503.
    20  Section 1503.  Contents of report.
    21     The report required under section 1502 shall include the
    22  following:
    23         (1)  Except as provided in paragraph (4), all information
    24     required by Form 990 or an equivalent form, of the United
    25     States Department of the Treasury, Internal Revenue Service,
    26     entitled the Return of Organization Exempt From Income Tax,
    27     regardless of whether the State-related institution is
    28     required to file the form by the Federal Government.
    29         (2)  The salaries of all officers and directors of the
    30     State-related institution.
    20070S0001B1562                 - 42 -     

     1         (3)  The highest 25 salaries paid to employees of the
     2     institution that are not included under paragraph (2).
     3         (4)  The report shall not include information relating to
     4     individual donors.
     5  Section 1504.  Copies and posting.
     6     A State-related institution shall maintain, for at least
     7  seven years, a copy of the report in the institution's library
     8  and shall provide free access to the report on the institution's
     9  Internet website.
    10                             CHAPTER 17
    11                     STATE CONTRACT INFORMATION
    12  Section 1701.  Submission and retention of contracts.
    13     (a)  General rule.--Whenever any Commonwealth agency,
    14  legislative agency or judicial agency shall enter into any
    15  contract involving any property, real, personal or mixed of any
    16  kind or description or any contract for personal services where
    17  the consideration involved in the contract is $5,000 or more, a
    18  copy of the contract shall be furnished to the Treasury
    19  Department within ten days after the contract is executed on
    20  behalf of the Commonwealth agency, legislative agency or
    21  judicial agency or otherwise becomes an obligation of the
    22  Commonwealth agency, legislative agency or judicial agency. The
    23  provisions of this subsection shall not apply to contracts for
    24  services protected by a privilege. The following shall apply:
    25         (1)  Each Commonwealth agency, legislative agency and
    26     judicial agency shall submit contracts in a form and
    27     structure mutually agreed upon by the Commonwealth agency,
    28     legislative agency or judicial agency and the State
    29     Treasurer.
    30         (2)  The Treasury Department may require each
    20070S0001B1562                 - 43 -     

     1     Commonwealth agency, legislative agency or judicial agency to
     2     provide a summary with each contract, which shall include the
     3     following:
     4             (i)  Date of execution.
     5             (ii)  Amount of the contract.
     6             (iii)  Beginning date of the contract.
     7             (iv)  End date of the contract, if applicable.
     8             (v)  Name of the agency entering into the contract.
     9             (vi)  All parties to the contract.
    10             (vii)  Subject matter of the contract.
    11     Each agency shall create and maintain the data under this
    12     paragraph in an ASCII-delimited text format, spreadsheet
    13     format or other format provided by regulation.
    14     (b)  Retention.--Every contract filed pursuant to subsection
    15  (a) shall remain on file with the Treasury Department for a
    16  period of not less than four years after the end date of the
    17  contract.
    18     (c)  Accuracy.--Each Commonwealth agency, legislative agency
    19  and judicial agency is responsible for verifying the accuracy
    20  and completeness of the information that it submits to the State
    21  Treasurer.
    22  Section 1702.  Public availability of contracts.
    23     (a)  General rule.--The Treasury Department shall make each
    24  contract filed pursuant to section 1701 available for public
    25  inspection either by posting a copy of the contract on the
    26  Treasury Department's publicly accessible Internet website or by
    27  posting a contract summary on the department's publicly
    28  accessible Internet website.
    29     (b)  Posting.--The Treasury Department shall post the
    30  information received pursuant to this chapter in a way that
    20070S0001B1562                 - 44 -     

     1  allows the public to search contracts or contract summaries by
     2  the categories enumerated in section 1701(a)(2).
     3     (c)  Request to review or receive copy of contract.--The
     4  Treasury Department shall maintain a page on its publicly
     5  accessible Internet website with instructions on how to request
     6  to review a contract and how to request a copy of a contract.
     7  Requests to review or receive a copy of a contract shall be
     8  allowed by letter, facsimile or e-mail. Additionally, both
     9  requests shall be honored within five days of the submission of
    10  the request and in the case of a request for a copy of a
    11  contract it shall be provided to the individual at cost. The
    12  Treasury Department may offer to provide a copy of the requested
    13  contract electronically to the requester at no cost.
    14                             CHAPTER 31
    15                      MISCELLANEOUS PROVISIONS
    16  Section 3101.  Applicability.
    17     This act applies as follows:
    18         (1)  This act shall apply to requests filed after the
    19     effective date of this section.
    20         (2)  Chapter 15 shall apply to fiscal years beginning
    21     after June 30, 2008.
    22         (3)  Chapter 17 shall apply to contracts entered into or
    23     renewed after the effective date of this section.
    24         (4)  Section 3102(1)(ii)(B) shall apply to bids submitted
    25     on or after the effective date of this section.
    26  Section 3102.  Repeals.
    27     Repeals are as follows:
    28         (1)  (i)  General Assembly declares that the repeals
    29         under subparagraph (ii) are necessary to effectuate this
    30         act.
    20070S0001B1562                 - 45 -     

     1             (ii)  The following acts and parts of acts are
     2         repealed:
     3                 (A)  The act of June 21, 1957 (P.L.390, No.212),
     4             referred to as the Right-to-Know Law.
     5                 (B)  62 Pa.C.S. § 106.
     6         (2)  (i)  The General Assembly declares that the repeal
     7         under subparagraph (ii) is necessary to effectuate
     8         Chapter 17.
     9             (ii)  Section 1104 of the act of April 9, 1929
    10         (P.L.177, No.175), known as The Administrative Code of
    11         1929, is repealed.
    12  Section 3103.  Effective date.
    13     This act shall take effect in 180 days.












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