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                                                       PRINTER'S NO. 842

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 765 Session of 2007


        INTRODUCED BY FERLO, COSTA, RHOADES, STOUT, KASUNIC, GREENLEAF,
           O'PAKE, BOSCOLA, FOLMER, FONTANA, WASHINGTON, C. WILLIAMS,
           WOZNIAK AND KITCHEN, APRIL 12, 2007

        REFERRED TO STATE GOVERNMENT, APRIL 12, 2007

                                     AN ACT

     1  Amending the act of June 21, 1957 (P.L.390, No.212), entitled
     2     "An act requiring certain records of the Commonwealth and its
     3     political subdivisions and of certain authorities and other
     4     agencies performing essential governmental functions, to be
     5     open for examination and inspection by citizens of the
     6     Commonwealth of Pennsylvania; authorizing such citizens under
     7     certain conditions to make extracts, copies, photographs or
     8     photostats of such records; and providing for appeals to the
     9     courts of common pleas," further providing for access to
    10     certain records of Commonwealth and non-Commonwealth
    11     agencies; imposing requirements on Commonwealth and non-
    12     Commonwealth agencies regarding public access to certain
    13     records; and repealing certain provisions.

    14     The General Assembly of the Commonwealth of Pennsylvania
    15  hereby enacts as follows:
    16     Section 1.  The title of the act of June 21, 1957 (P.L.390,
    17  No.212), referred to as the Right-to-Know Law, is amended to
    18  read:
    19                               AN ACT
    20  [Requiring certain records of the Commonwealth and its political
    21     subdivisions and of certain authorities and other agencies
    22     performing essential governmental functions, to be open for
    23     examination and inspection by citizens of the Commonwealth of

     1     Pennsylvania; authorizing such citizens under certain
     2     conditions to make extracts, copies, photographs or
     3     photostats of such records; and providing for appeals to the
     4     courts of common pleas.]
     5  Providing for access to certain records of Commonwealth agencies
     6     and non-Commonwealth agencies; and imposing requirements on
     7     Commonwealth agencies and non-Commonwealth agencies to
     8     provide certain records upon request.
     9     Section 2.  Sections 1, 2, 3.1, 3.2, 3.3, 3.4, 3.5, 4, 4.1,
    10  5, 6, 7, 8 and 9 of the act, amended or added June 29, 2002
    11  (P.L.663, No.100), are repealed:
    12  [Section 1.  Definitions.
    13     The following words and phrases when used in this act shall
    14  have the meanings given to them in this section unless the
    15  context clearly indicates otherwise:
    16     "Agency."  Any office, department, board or commission of the
    17  executive branch of the Commonwealth, any political subdivision
    18  of the Commonwealth, the Pennsylvania Turnpike Commission, the
    19  State System of Higher Education or any State or municipal
    20  authority or similar organization created by or pursuant to a
    21  statute which declares in substance that such organization
    22  performs or has for its purpose the performance of an essential
    23  governmental function.
    24     "Commonwealth agency."  An agency which is a Commonwealth
    25  agency as that term is defined under 62 Pa.C.S. § 103 (relating
    26  to definitions).
    27     "Non-Commonwealth agency."  An agency which is not a
    28  Commonwealth agency.
    29     "Public record."  Any account, voucher or contract dealing
    30  with the receipt or disbursement of funds by an agency or its
    20070S0765B0842                  - 2 -     

     1  acquisition, use or disposal of services or of supplies,
     2  materials, equipment or other property and any minute, order or
     3  decision by an agency fixing the personal or property rights,
     4  privileges, immunities, duties or obligations of any person or
     5  group of persons: Provided, That the term "public records" shall
     6  not mean any report, communication or other paper, the
     7  publication of which would disclose the institution, progress or
     8  result of an investigation undertaken by an agency in the
     9  performance of its official duties, except those reports filed
    10  by agencies pertaining to safety and health in industrial
    11  plants; it shall not include any record, document, material,
    12  exhibit, pleading, report, memorandum or other paper, access to
    13  or the publication of which is prohibited, restricted or
    14  forbidden by statute law or order or decree of court, or which
    15  would operate to the prejudice or impairment of a person's
    16  reputation or personal security, or which would result in the
    17  loss by the Commonwealth or any of its political subdivisions or
    18  commissions or State or municipal authorities of Federal funds,
    19  excepting therefrom however the record of any conviction for any
    20  criminal act.
    21     "Record."  Any document maintained by an agency, in any form,
    22  whether public or not.
    23     "Requester."  A person who is a resident of the Commonwealth
    24  and requests a record pursuant to this act.
    25     "Response."  Access to a record or an agency's written notice
    26  granting, denying or partially granting and partially denying
    27  access to a record.
    28  Section 2.  Procedure for access to public records.
    29     (a)  General rule.--Unless otherwise provided by law, a
    30  public record shall be accessible for inspection and duplication
    20070S0765B0842                  - 3 -     

     1  by a requester in accordance with this act. A public record
     2  shall be provided to a requester in the medium requested if the
     3  public record exists in that medium; otherwise, it shall be
     4  provided in the medium in which it exists. Public records shall
     5  be available for access during the regular business hours of an
     6  agency. Nothing in this act shall provide for access to a record
     7  which is not a public record.
     8     (b)  Requests.--Agencies may fulfill verbal requests for
     9  access to records and anonymous requests for access to records.
    10  In the event that the requester wishes to pursue the relief and
    11  remedies provided for in this act, the requester must initiate
    12  such relief with a written request.
    13     (c)  Written requests.--A written request for access to
    14  records may be submitted in person, by mail, by facsimile or, to
    15  the extent provided by agency rules, any other electronic means.
    16  A written request shall be addressed to the agency head or other
    17  person designated in the rules established by the agency. A
    18  written request should identify or describe the records sought
    19  with sufficient specificity to enable the agency to ascertain
    20  which records are being requested and shall include the name and
    21  address to which the agency should address its response. A
    22  written request need not include any explanation of the
    23  requester's reason for requesting or intended use of the
    24  records.
    25     (d)  Electronic access.--In addition to the requirements of
    26  subsection (a), an agency may make its public records available
    27  through any publicly accessible electronic means. If access to a
    28  public record is routinely available by an agency only by
    29  electronic means, the agency shall provide access to inspect the
    30  public record at an office of the agency.
    20070S0765B0842                  - 4 -     

     1     (e)  Creation of a public record.--When responding to a
     2  request for access, an agency shall not be required to create a
     3  public record which does not currently exist or to compile,
     4  maintain, format or organize a public record in a manner in
     5  which the agency does not currently compile, maintain, format or
     6  organize the public record.
     7     (f)  Conversion of an electronic record to paper.--If a
     8  public record is only maintained electronically or in other
     9  nonpaper media, an agency shall, upon request, duplicate the
    10  public record on paper when responding to a request for access
    11  in accordance with this act.
    12     (g)  Retention of records.--Nothing in this act is intended
    13  to modify, rescind or supersede any record retention and
    14  disposition schedule established pursuant to law.
    15  Section 3.1.  Access to public records.
    16     An agency may not deny a requester access to a public record
    17  due to the intended use of the public record by the requester.
    18  Section 3.2.  Redaction.
    19     If an agency determines that a public record contains
    20  information which is subject to access as well as information
    21  which is not subject to access, the agency's response shall
    22  grant access to the information which is subject to access and
    23  deny access to the information which is not subject to access.
    24  If the information which is not subject to access is an integral
    25  part of the public record and cannot be separated, the agency
    26  shall redact from the public record the information which is not
    27  subject to access, and the response shall grant access to the
    28  information which is subject to access. The agency may not deny
    29  access to the public record if the information which is not
    30  subject to access is able to be redacted. Information which an
    20070S0765B0842                  - 5 -     

     1  agency redacts in accordance with this subsection shall be
     2  deemed a denial under section 3.3.
     3  Section 3.3.  Commonwealth agency's response to written requests
     4                 for access.
     5     (a)  General rule.--Upon receipt of a written request for
     6  access to a record, a Commonwealth agency shall make a good
     7  faith effort to determine if the record requested is a public
     8  record and to respond as promptly as possible under the
     9  circumstances existing at the time of the request but shall not
    10  exceed ten business days from the date the written request is
    11  received by the Commonwealth agency head or other person
    12  designated by the Commonwealth agency for receiving such
    13  requests. If the Commonwealth agency fails to send the response
    14  within ten business days of receipt of the written request for
    15  access, the written request for access shall be deemed denied.
    16     (b)  Exception.--Upon receipt of a written request for
    17  access, if a Commonwealth agency determines that one of the
    18  following applies:
    19         (1)  the request for access requires redaction of a
    20     public record in accordance with section 3.2;
    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 public record subject to access under this act;
    28         (5)  the requester has not complied with the Commonwealth
    29     agency's policies regarding access to public records; or
    30         (6)  the requester refuses to pay applicable fees
    20070S0765B0842                  - 6 -     

     1     authorized by section 7 of this act,
     2  the Commonwealth agency shall send written notice to the
     3  requester within ten business days of the Commonwealth agency's
     4  receipt of the request for access. The notice shall include a
     5  statement notifying the requester that the request for access is
     6  being reviewed, the reason for the review and a reasonable date
     7  that a response is expected to be provided. If the date that a
     8  response is expected to be provided is in excess of 30 days,
     9  following the ten business days allowed for in subsection (a),
    10  the request for access shall be deemed denied.
    11     (c)  Denial.--If a Commonwealth agency's response is a denial
    12  of a written request for access, whether in whole or in part, a
    13  written response shall be issued and include:
    14         (1)  A description of the record requested.
    15         (2)  The specific reasons for the denial, including a
    16     citation of supporting legal authority. If the denial is the
    17     result of a determination that the record requested is not a
    18     public record, the specific reasons for the agency's
    19     determination that the record is not a public record shall be
    20     included.
    21         (3)  The typed or printed name, title, business address,
    22     business telephone number and signature of the public
    23     official or public employee on whose authority the denial is
    24     issued.
    25         (4)  Date of the response.
    26         (5)  The procedure to appeal the denial of access under
    27     this act.
    28     (d)  Certified copies.--If a Commonwealth agency's response
    29  grants a request for access, the Commonwealth agency shall, upon
    30  request, provide the requester with a certified copy of the
    20070S0765B0842                  - 7 -     

     1  public record if the requester pays the applicable fees pursuant
     2  to section 7.
     3  Section 3.4.  Non-Commonwealth agency's response to written
     4                 requests for access.
     5     (a)  General rule.--Upon receipt of a written request for
     6  access to a record, a non-Commonwealth agency shall make a good
     7  faith effort to determine if the record requested is a public
     8  record and to respond as promptly as possible under the
     9  circumstances existing at the time of the request but shall not
    10  exceed five business days from the date the written request is
    11  received by the non-Commonwealth agency head or other person
    12  designated in the rules established by the non-Commonwealth
    13  agency for receiving such requests. If the non-Commonwealth
    14  agency fails to send the response within five business days of
    15  receipt of the written request for access, the written request
    16  for access shall be deemed denied.
    17     (b)  Exception.--Upon receipt of a written request for
    18  access, if a non-Commonwealth agency determines that one of the
    19  following applies:
    20         (1)  the request for access requires redaction of a
    21     public record in accordance with section 3.2;
    22         (2)  the request for access requires the retrieval of a
    23     record stored in a remote location;
    24         (3)  a timely response to the request for access cannot
    25     be accompanied due to bona fide and specified staffing
    26     limitations;
    27         (4)  a legal review is necessary to determine whether the
    28     record is a public record subject to access under this act;
    29         (5)  the requester has not complied with the non-
    30     Commonwealth agency's policies regarding access to public
    20070S0765B0842                  - 8 -     

     1     records; or
     2         (6)  the requester refuses to pay applicable fees
     3     authorized by section 7,
     4  the non-Commonwealth agency shall send written notice to the
     5  requester within five business days of the non-Commonwealth
     6  agency's receipt of the request notifying the requester that the
     7  request for access is being reviewed, the reason for the review
     8  and a reasonable date that a response is expected to be
     9  provided. If the date that a response is expected to be provided
    10  is in excess of 30 days, following the five business days
    11  allowed in subsection (a), the request for access shall be
    12  deemed denied.
    13     (c)  Denial.--If a non-Commonwealth agency's response is a
    14  denial of a written request for access, whether in whole or in
    15  part, a written response shall be issued and include:
    16         (1)  A description of the record requested.
    17         (2)  The specific reasons for the denial, including a
    18     citation of supporting legal authority. If the denial is the
    19     result of a determination that the record requested is not a
    20     public record, the specific reasons for the agency's
    21     determination that the record is not a public record shall be
    22     included.
    23         (3)  The typed or printed name, title, business address,
    24     business telephone number and signature of the public
    25     official or public employee on whose authority the denial is
    26     issued.
    27         (4)  Date of the response.
    28         (5)  The procedure to appeal the denial of access under
    29     this act.
    30     (d)  Certified copies.--If a non-Commonwealth agency's
    20070S0765B0842                  - 9 -     

     1  response grants a request for access, the non-Commonwealth
     2  agency shall, upon request, provide the requester with a
     3  certified copy of the public record if the requester pays the
     4  applicable fees pursuant to section 7.
     5  Section 3.5.  Final agency determination.
     6     (a)  Filing of exceptions.--If a written request for access
     7  is denied or deemed denied, the requester may file exceptions
     8  with the head of the agency denying the request for access
     9  within 15 business days of the mailing date of the agency's
    10  response or within 15 days of a deemed denial. The exceptions
    11  shall state grounds upon which the requester asserts that the
    12  record is a public record and shall address any grounds stated
    13  by the agency for delaying or denying the request.
    14     (b)  Determination.--Unless the requester agrees otherwise,
    15  the agency head or his designee shall make a final determination
    16  regarding the exceptions within 30 days of the mailing date of
    17  the exceptions. Prior to issuing the final determination
    18  regarding the exceptions, the agency head or his designee may
    19  conduct a hearing. The determination shall be the final order of
    20  the agency. If the agency head or his designee determines that
    21  the agency correctly denied the request for access, the agency
    22  head or his designee shall provide a written explanation to the
    23  requester of the reason for the denial.
    24  Section 4.  Judicial appeal.
    25     (a)  Commonwealth agency.--Within 30 days of the mailing date
    26  of a final determination of a Commonwealth agency affirming the
    27  denial of access, a requester may file a petition for review or
    28  other document as might be required by rule of court with the
    29  Commonwealth Court.
    30     (b)  Other agency.--Within 30 days of a denial by a non-
    20070S0765B0842                 - 10 -     

     1  Commonwealth agency under section 3.4(c) or of the mailing date
     2  of a final determination of a non-Commonwealth agency affirming
     3  the denial of access, a requester may file a petition for review
     4  or other document as might be required by rule of court with the
     5  court of common pleas for the county where the non-Commonwealth
     6  agency's office or facility is located or bring an action in the
     7  local magisterial district. A requester is entitled to a
     8  reasoned decision containing findings of fact and conclusions of
     9  law based upon the evidence as a whole which clearly and
    10  concisely states and explains the rationale for the decisions so
    11  that all can determine why and how a particular result was
    12  reached.
    13     (c)  Notice.--An agency shall be served notice of actions
    14  commenced in accordance with subsection (a) or (b) and shall
    15  have an opportunity to respond in accordance with applicable
    16  court rules.
    17     (d)  Record on appeal.--The record before a court shall
    18  consist of the request, the agency's response, the requester's
    19  exceptions, if applicable, the hearing transcript, if any, and
    20  the agency's final determination, if applicable.
    21  Section 4.1.  Court costs and attorney fees.
    22     (a)  Reversal of agency determination.--If a court reverses
    23  an agency's final determination, the court may award reasonable
    24  attorney fees and costs of litigation or an appropriate portion
    25  thereof to a requester if the court finds either of the
    26  following:
    27         (1)  the agency willfully or with wanton disregard
    28     deprived the requester of access to a public record subject
    29     to access under the provisions of this act; or
    30         (2)  the exemptions, exclusions or defenses asserted by
    20070S0765B0842                 - 11 -     

     1     the agency in its final determination were not based on a
     2     reasonable interpretation of law.
     3     (b)  Sanctions for frivolous requests or appeals.--If a court
     4  affirms an agency's final determination, the court may award
     5  reasonable attorney fees and costs of litigation or an
     6  appropriate portion thereof to the agency if the court finds
     7  that the legal challenge to the agency's final determination 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 5.  Penalties.
    13     (a)  Summary offense.--An agency or public official who
    14  violates this act with the intent and purpose of violating this
    15  act commits a summary offense subject to prosecution by the
    16  Attorney General or the appropriate district attorney and shall,
    17  upon conviction, be sentenced to pay a fine of not more than
    18  $300 plus costs of prosecution.
    19     (b)  Civil penalty.--An agency or public official who does
    20  not promptly comply with a court order under this act is subject
    21  to a civil penalty of not more than $300 per day until the
    22  public records are provided.
    23  Section 6.  Immunity.
    24     (a)  General rule.--Except as provided in sections 4.1 and 5
    25  and other statutes governing the release of records, no agency,
    26  public official or public employee shall be liable for civil or
    27  criminal damages or penalties resulting from compliance or
    28  failure to comply with this act.
    29     (b)  Schedules.--No agency, public official or public
    30  employee shall be liable for civil or criminal damages or
    20070S0765B0842                 - 12 -     

     1  penalties under this act for complying with any written public
     2  record retention and disposition schedule.
     3  Section 7.  Fee limitations.
     4     (a)  Postage.--Fees for postage may not exceed the actual
     5  cost of mailing.
     6     (b)  Duplication.--Fees for duplication by photocopying,
     7  printing from electronic media or microfilm, copying onto
     8  electronic media, transmission by facsimile or other electronic
     9  means and other means of duplication must be reasonable and
    10  based on prevailing fees for comparable duplication services
    11  provided by local business entities.
    12     (c)  Certification.--An agency may impose reasonable fees for
    13  official certification of copies if the certification is at the
    14  behest of the requester and for the purpose of legally verifying
    15  the public record.
    16     (d)  Conversion to paper.--If a public record is only
    17  maintained electronically or in other nonpaper media,
    18  duplication fees shall be limited to the lesser of the fee for
    19  duplication on paper or the fee for duplication in the native
    20  media as provided by subsection (b) unless the requester
    21  specifically requests for the public record to be duplicated in
    22  the more expensive medium.
    23     (e)  Enhanced electronic access.--If an agency offers
    24  enhanced electronic access to public records in addition to
    25  making the public records accessible for inspection and
    26  duplication by a requester as required by this act, the agency
    27  may establish user fees specifically for the provision of the
    28  enhanced electronic access, but only to the extent that the
    29  enhanced electronic access is in addition to making the public
    30  records accessible for inspection and duplication by a requester
    20070S0765B0842                 - 13 -     

     1  as required by this act. The user fees for enhanced electronic
     2  access may be a flat rate, a subscription fee for a period of
     3  time, a per-transaction fee, a fee based on the cumulative time
     4  of system access or any other reasonable method and any
     5  combination thereof. The user fees for enhanced electronic
     6  access must be reasonable and may not be established with the
     7  intent or effect of excluding persons from access to public
     8  records or duplicates thereof or of creating profit for the
     9  agency.
    10     (f)  Waiver of fees.--An agency may waive the fees for
    11  duplication of a public record, including, but not limited to,
    12  when:
    13         (1)  the requester duplicates the public record; or
    14         (2)  the agency deems it is in the public interest to do
    15     so.
    16     (g)  Limitations.--Except as otherwise provided by statute,
    17  no other fees may be imposed unless the agency necessarily
    18  incurs costs for complying with the request, and such fees must
    19  be reasonable. No fee may be imposed for an agency's review of a
    20  record to determine whether the record is a public record
    21  subject to access in accordance with this act.
    22     (h)  Prepayment.--Prior to granting a request for access in
    23  accordance with this act, an agency may require a requester to
    24  prepay an estimate of the fees authorized under this section if
    25  the fees required to fulfill the request are expected to exceed
    26  $100.
    27  Section 8.  Implementation.
    28     (a)  Requirement.--An agency shall establish written policies
    29  and may promulgate regulations necessary to implement this act.
    30     (b)  Content.--The written policies shall include the name of
    20070S0765B0842                 - 14 -     

     1  the office to which requests for access shall be addressed and a
     2  list of applicable fees.
     3     (c)  Prohibition.--A policy or regulation may not include any
     4  of the following:
     5         (1)  A limitation on the number of public records which
     6     may be requested or made available for inspection or
     7     duplication.
     8         (2)  A requirement to disclose the purpose or motive in
     9     requesting access to records which are public records.
    10     (d)  Posting.--The policies shall be conspicuously posted at
    11  the agency and may be made available by electronic means.
    12  Section 9.  Practice and procedure.
    13     The provisions of 2 Pa.C.S. (relating to administrative law
    14  and procedure) shall not apply to this act.]
    15     Section 3.  The act is amended by adding sections to read:
    16  Section 101.  Legislative findings, intent and construction.
    17     (a)  Findings.--The General Assembly finds that:
    18         (1)  Access to public records is vital to the
    19     preservation and functioning of the democratic process. The
    20     public is entitled to know and be informed fully about the
    21     official business of public officials and public employees
    22     and the activities of government agencies. Access to
    23     information about the conduct and activities of public
    24     officials, public employees and government agencies is
    25     necessary to assist the public in understanding its
    26     government, monitoring its government and making informed
    27     judgments about how to exercise its political power.
    28         (2)  The public has a fundamental right of access to
    29     information on the appropriation, expenditure and investment
    30     of public money.
    20070S0765B0842                 - 15 -     

     1         (3)  Government agencies receive and maintain data,
     2     information and public records about persons in their
     3     commercial and private endeavors. It is important that access
     4     to public records be balanced against rights of privacy and
     5     confidentiality provided in law regarding personal data
     6     gathered by government agencies.
     7         (4)  Technological advances have resulted in new ways to
     8     create, store and use public records. These advances should
     9     not hinder or restrict access to public records but should be
    10     used to facilitate access to public records.
    11         (5)  Providing access to public records is an essential
    12     function of government agencies and an integral part of the
    13     fundamental duties of public officials and public employees.
    14     Rules regarding access to public records should be made
    15     available to the public and should provide guidance to public
    16     officials and public employees charged with the
    17     responsibility of making public records accessible.
    18         (6)  Government agencies have a duty to preserve the
    19     physical integrity of public records but must do so in a
    20     manner that does not burden the right of the public to access
    21     those records.
    22     (b)  Intent.--It is the intent of the General Assembly to:
    23         (1)  Ensure and facilitate the right of the public to
    24     have access to information about the conduct and activities
    25     of its government.
    26         (2)  Make public records available for access by the
    27     public unless there is a specific provision of Federal or
    28     State law that makes the records exempt from access.
    29         (3)  Place the burden of proving that information is not
    30     a public record or that a public record is exempt from access
    20070S0765B0842                 - 16 -     

     1     on the government agency that denies access.
     2         (4)  Favor public access when, in the application of this
     3     act, countervailing interests are of equal weight.
     4         (5)  Provide guidelines to assist public officials and
     5     public employees in responding to requests for access to
     6     public records.
     7         (6)  Establish practices for access to public records.
     8     (c)  Construction.--Nothing in this act is intended to
     9  modify, rescind or supersede any public record retention and
    10  disposition schedule established pursuant to law.
    11  Section 102.  Definitions.
    12     The following words and phrases when used in this act shall
    13  have the meanings given to them in this section unless the
    14  context clearly indicates otherwise:
    15     "Agency."  Any of the following:
    16         (1)  The legislative branch of the government of this
    17     Commonwealth, including the Senate and the House of
    18     Representatives.
    19         (2)  The executive branch of the government of this
    20     Commonwealth, including its departments, offices, boards,
    21     commissions and other subordinate agencies.
    22         (3)  Independent agencies of the government of this
    23     Commonwealth which are not subject to the policy supervision
    24     and control of the Governor and are not part of the
    25     legislative or judicial branches of government.
    26         (4)  The Office of Attorney General, the Department of
    27     the Auditor General and the Treasury Department.
    28         (5)  Political subdivisions, intermediate units and
    29     public trade or vocational schools, intergovernmental
    30     agencies and councils of governments, including their
    20070S0765B0842                 - 17 -     

     1     departments, offices, boards, commissions and other
     2     subordinate agencies.
     3         (6)  An authority or instrumentality created by the
     4     Commonwealth or by a political subdivision or political
     5     subdivisions.
     6         (7)  State-aided colleges and universities, State-owned
     7     colleges and universities, State-related universities and
     8     community colleges.
     9         (8)  An entity created pursuant to law or pursuant to the
    10     action of an agency for the purpose of performing a
    11     governmental function. For the purposes of this section,
    12     "governmental function" shall be broadly defined to include
    13     any services or functions previously performed by any
    14     governmental entity or which are for the benefit of the
    15     public as a whole or some segment of the public.
    16         (9)  An entity contracted by an agency to perform the
    17     governmental function but only insofar as the entity's
    18     records regarding the contracted governmental function are
    19     concerned. With respect to records unrelated to the entity's
    20     performance of the governmental function, the entity shall
    21     not be an agency for the purposes of this act.
    22         (10)  Any entity or organization that is supported
    23     principally by public funds.
    24         (11)  Any committee of or created by any of the above,
    25     which is authorized to render advice to or take official
    26     action on behalf of any agency.
    27     "Commonwealth agency."  An agency which is a Commonwealth
    28  agency as that term is defined under 62 Pa.C.S. § 103 (relating
    29  to definitions).
    30     "Non-Commonwealth agency."  An agency which is not a
    20070S0765B0842                 - 18 -     

     1  Commonwealth agency.
     2     "Office."  The Office of Access to Public Records established
     3  in this act.
     4     "Public record."  The term shall mean all documents, papers,
     5  letters, maps, books, tapes, photographs, films, sound
     6  recordings, data processing software, database, data or other
     7  material, regardless of physical form, characteristics or means
     8  of storage or transmission, made or received in connection with
     9  or relating to the work of an agency, except those documents
    10  exempt or prohibited from disclosure under Federal or State law.
    11     "Requester."  A person who requests a record pursuant to this
    12  act. The term includes a natural person, Commonwealth agency,
    13  non-Commonwealth agency, corporation, unincorporated
    14  association, partnership, limited liability company, business
    15  trust and any other enterprise.
    16     "Response."  Access to a record or an agency's written notice
    17  granting, denying or partially granting and partially denying
    18  access to a record.
    19  Section 103.  Procedure for access to public records.
    20     (a)  General rule.--Unless otherwise provided by law, a
    21  public record shall be accessible for inspection and duplication
    22  by a requester in accordance with this act. A public record
    23  shall be provided to a requester in the medium requested if the
    24  public record exists in that medium; otherwise, it shall be
    25  provided in the medium in which it exists. Public records shall
    26  be available for access during the regular business hours of an
    27  agency.
    28     (b)  Requests.--Agencies may fulfill verbal requests for
    29  access to records and anonymous requests for access to records.
    30  In the event that the requester wishes to pursue the relief and
    20070S0765B0842                 - 19 -     

     1  remedies provided for in this act, the requester must initiate
     2  such relief with a written request.
     3     (c)  Written requests.--A written request for access to
     4  records may be submitted in person, by mail, by facsimile or, to
     5  the extent provided by agency rules, by any other electronic
     6  means. A written request shall be addressed to the agency head
     7  or other person designated in the rules established by the
     8  agency. A written request should identify or describe the
     9  records sought with sufficient specificity to enable the agency
    10  to ascertain which records are being requested and shall include
    11  the name and address to which the agency should address its
    12  response. A written request need not include any explanation of
    13  the requester's reason for requesting or intended use of the
    14  records.
    15     (d)  Electronic access.--In addition to the requirements of
    16  subsection (a), an agency may make its public records available
    17  through any publicly accessible electronic means. If access to a
    18  public record is routinely available by an agency only by
    19  electronic means, the agency shall provide access to inspect the
    20  public record at an office of the agency.
    21     (e)  Creation of public record.--When responding to a request
    22  for access, an agency shall not be required to create a public
    23  record which does not currently exist or to compile, maintain,
    24  format or organize a public record in a manner in which the
    25  agency does not currently compile, maintain, format or organize
    26  the public record. This subsection does not apply to public
    27  records stored electronically that can be compiled, maintained,
    28  formatted or organized in a manner requested by a requester
    29  without placing an unreasonable burden upon an agency.
    30     (f)  Conversion of electronic record to paper.--If a public
    20070S0765B0842                 - 20 -     

     1  record is only maintained electronically or in other nonpaper
     2  media, an agency shall, upon request, duplicate the public
     3  record on paper when responding to a request for access in
     4  accordance with this act.
     5     (g)  Retention of records.--Nothing in this act is intended
     6  to modify, rescind or supersede any record retention and
     7  disposition schedule established pursuant to law.
     8  Section 104.  Access to public records.
     9     A public record shall be made accessible for inspection and
    10  copying by any person in accordance with this act unless
    11  otherwise provided by Federal or State law. The burden shall be
    12  on the agency to show that specific information may not be
    13  accessed or that a public record is exempt from access by law.
    14  Section 105.  Exemptions.
    15     (a)  Enumerated exemptions.--The following records shall be
    16  exempt from the definition of "public record":
    17         (1)  Any record the disclosure of which is prohibited by
    18     Federal or State law, including records the access to which
    19     would result in the loss of Federal funds by an agency.
    20         (2)  Records that reflect an individual's medical history
    21     or disability status, including evaluation, diagnosis or
    22     treatment. This paragraph does not relate to autopsy records
    23     or other official records of the coroner.
    24         (3)  That part of a record that lists an individual's
    25     Social Security number, driver's license number or financial
    26     account number.
    27         (4)  That part of a record that lists a nonelected public
    28     employee's home telephone number or home address, unless the
    29     public interest in disclosure outweighs the individual's
    30     privacy interest in such information.
    20070S0765B0842                 - 21 -     

     1         (5)  Information regarding discipline, demotion or
     2     discharge contained in an agency's personnel files, except
     3     that the status of any disciplinary proceeding against a
     4     public official or public employee and the disciplinary
     5     action taken, if any, shall be accessible.
     6         (6)  Records that, if disclosed, would endanger the life
     7     or safety of any person or the disclosure of which would
     8     create a substantial likelihood of endangering public safety
     9     or the physical security of any building, infrastructure
    10     facility or information storage system; however:
    11             (i)  Simple floor plans showing spatial arrangements
    12         of buildings do not fall within this exemption and shall
    13         be public records.
    14             (ii)  Information relating to the general adoption of
    15         security plans and arrangements and budgetary information
    16         concerning the authorization of public funds to implement
    17         public security plans and arrangements, or for the
    18         construction, renovation or repair of public buildings
    19         and infrastructure facilities shall be public records.
    20     If an agency denies a record under this exemption, it must
    21     provide a general description of the record being withheld
    22     and how disclosure of the record would endanger the life or
    23     safety of any person or create a substantial likelihood of
    24     endangering public safety or the physical security of a
    25     building, infrastructure facility or information storage
    26     system.
    27         (7)  Drafts of bills, resolutions or amendments prepared
    28     by a public official or public employee acting in a
    29     legislative capacity until such drafts have been numbered and
    30     filed with the Secretary of the Senate or the Chief Clerk of
    20070S0765B0842                 - 22 -     

     1     the House of Representatives or, in the case of a political
     2     subdivision, until such time as the drafts have been
     3     presented to a number of members of the governing body of the
     4     political subdivision equal to or greater than a quorum.
     5         (8)  (i)  Research requests from public officials or
     6         public employees to the Legislative Reference Bureau, the
     7         Local Government Commission, the Joint State Government
     8         Commission, the Legislative Budget and Finance Committee,
     9         the Joint Legislative Air and Water Pollution Control and
    10         Conservation Committee, the Legislative Office for
    11         Research Liaison, the Legislative Data Processing Center
    12         or any other designated legislative service agency or the
    13         staff of any caucus or committee of the General Assembly
    14         and research requests from a member of the General
    15         Assembly to that member's legislative office staff.
    16             (ii)  This paragraph shall not apply to products of
    17         research by the Legislative Reference Bureau, the Local
    18         Government Commission, the Joint State Government
    19         Commission, the Legislative Budget and Finance Committee,
    20         the Joint Legislative Air and Water Pollution Control and
    21         Conservation Committee, the Legislative Office for
    22         Research Liaison, the Legislative Data Processing Center
    23         or any other designated legislative service agency. In
    24         providing access to those documents, the identity of the
    25         person making the request may not be disclosed without
    26         that person's consent.
    27         (9)  Records pertaining to strategy and negotiations with
    28     respect to pending claims, threatened litigation or pending
    29     litigation to which the public agency is a party and which
    30     are not records of any court until such litigation or claim
    20070S0765B0842                 - 23 -     

     1     has been fully adjudicated or otherwise settled.
     2         (10)  Records pertaining to strategy and negotiations
     3     with respect to labor relations or collective bargaining,
     4     except that any contract or agreement between the parties
     5     shall be public.
     6         (11)  Records of the Governor's Office or, in the case of
     7     a political subdivision, the chief executive officer or
     8     governing body or the member or members of the governing body
     9     thereof acting in an executive capacity, including, but not
    10     limited to, budget recommendations, legislative proposals and
    11     proposed policy statements that, if access were provided,
    12     would:
    13             (i)  in the case of the Governor, reveal the
    14         Governor's contemplated polices or courses of action
    15         before the Governor has formally proposed those policies
    16         or courses of action or made them public; or
    17             (ii)  in the case of a political subdivision, reveal
    18         the contemplated policies or courses of action before the
    19         policies or courses of action have been presented to a
    20         number of members of the governing body of the political
    21         subdivision equal to or greater than a quorum.
    22         (12)  Records that are trade secrets, as that term is
    23     defined in 12 Pa.C.S. § 5302 (relating to definitions),
    24     submitted to an agency by a commercial enterprise and which,
    25     if disclosed, would cause substantial injury to the
    26     competitive position of the subject enterprise. The
    27     commercial enterprise submitting the information must provide
    28     a written claim that the information contains trade secrets
    29     regarding the enterprise and a concise statement of the
    30     reasons supporting the claim. The claim shall be construed as
    20070S0765B0842                 - 24 -     

     1     a public record for purposes of this act.
     2         (13)  Notes that are personally prepared by a public
     3     official or public employee when the notes are used solely
     4     for that official's or employee's own personal use as an aid
     5     to memory.
     6         (14)  (i)  Information that would result in the
     7         disclosure of the name of a donor or a prospective donor
     8         to an agency, provided that all of the following apply:
     9                 (A)  The agency either is a public institution of
    10             higher education or is primarily engaged in
    11             educational, charitable or artistic endeavors.
    12                 (B)  The donor requests anonymity in writing.
    13                 (C)  The agency has no regulatory or legislative
    14             authority over the donor, a member of the donor's
    15             immediate family or any entity owned or controlled by
    16             the donor or the donor's immediate family.
    17             (ii)  Information regarding the terms, conditions,
    18         restrictions or privileges relating to any such donation
    19         shall be construed as a public record and shall be made
    20         available for inspection and copying notwithstanding any
    21         other provisions of this paragraph.
    22             (iii)  For the purposes of this paragraph, "immediate
    23         family" means a parent, spouse, child, brother, sister or
    24         like relative-in-law.
    25         (15)  Unpublished lecture notes, unpublished manuscripts,
    26     creative works in progress and scholarly correspondence, any
    27     of which have been developed, discovered or received by or on
    28     behalf of faculty, staff, employees or students of a public
    29     institution of education.
    30         (16)  (i)  Records created by an agency in the process of
    20070S0765B0842                 - 25 -     

     1         investigating a possible violation of statutory or
     2         regulatory law if the release of the records would
     3         identify a confidential source, disclose information made
     4         confidential by law or court order or disclose an ongoing
     5         criminal investigation by law enforcement.
     6             (ii)  Subparagraph (i) shall not apply to the
     7         following records or information, which shall be
     8         accessible except where prohibited by law or where the
     9         agency can demonstrate that providing access to the
    10         person making the request would endanger another person's
    11         safety, deprive a person of a right to a fair and
    12         impartial trial or hinder the agency's ability to secure
    13         an arrest, prosecution or civil or criminal sanction:
    14                 (A)  Initial incident reports, police blotters
    15             and similar records that summarize the date, time,
    16             place, purpose and cause of services performed by law
    17             enforcement agencies or investigative agencies.
    18                 (B)  The date, time, location and nature of a
    19             reported crime.
    20                 (C)  The name, sex, age and address of a person
    21             arrested, cited or otherwise charged with either a
    22             criminal or civil violation; the date, time and
    23             location of an arrest or citation; the charge or
    24             charges brought against the person; and any
    25             documents, including warrants, information,
    26             indictments, complaints and notices, given or
    27             required by law to be given to the person charged.
    28                 (D)  The name, sex, age and place of residence of
    29             the victim of a crime or regulatory violation.
    30                 (E)  Traffic accident reports and compilations of
    20070S0765B0842                 - 26 -     

     1             data derived therefrom.
     2                 (F)  Audio tapes or transcripts of telephone
     3             calls or radio transmissions received by emergency
     4             dispatch personnel.
     5         (17)  Records that reflect internal, predecisional
     6     deliberations by or between agency members, but this
     7     exception does not include:
     8             (i)  statistical or factual tabulations or data;
     9             (ii)  instructions to staff that affect the public;
    10             (iii)  final agency policy or determinations;
    11             (iv)  completed audits; or
    12             (v)  documents that are closely connected to or form
    13         the basis for the agency decision once the decision has
    14         been made. For the purposes of this section, an agency's
    15         decision to take no action on a matter shall constitute a
    16         decision.
    17         (18)  Documents that are examination questions, scoring
    18     keys or answers which are requested prior to the final
    19     administration of such examination.
    20         (19)  Minutes of executive sessions and any record of
    21     discussions held in executive session, except where
    22     authorized and released by the agency or the release of which
    23     is ordered by a court.
    24         (20)  The contents of real estate appraisals or
    25     engineering or feasibility estimates and evaluations made for
    26     or by the Commonwealth or local agency relative to the
    27     acquisition of property, or to prospective public supply and
    28     construction contracts, until the property has been acquired
    29     or until a contract or option obtained, or until all
    30     proceedings or transactions have been terminated or
    20070S0765B0842                 - 27 -     

     1     abandoned. However, the law of eminent domain shall not be
     2     affected by this provision.
     3     (b)  Nondescriptive information.--Notwithstanding the
     4  provisions of subsection (a)(1), (2) and (14), access to
     5  information that does not identify any particular individual or
     6  business entity shall be disclosed.
     7     (c)  Agency discretion.--An agency may exercise its
     8  discretion to make any public record enumerated under subsection
     9  (a) accessible for inspection and copying if:
    10         (1)  disclosure of that public record is not expressly
    11     prohibited by Federal or State law; and
    12         (2)  the governing body, agency head or designee with
    13     custody and control of the record determines that the public
    14     interest favoring access outweighs the individual or agency
    15     interest favoring restriction of access.
    16  Section 106.  Access to public records.
    17     An agency may not deny a requester access to a public record
    18  due to the intended use of the public record by the requester.
    19  Section 107.  Redaction.
    20     If an agency determines that a public record contains
    21  information which is subject to access as well as information
    22  which is not subject to access, the agency's response shall
    23  grant access to the information which is subject to access and
    24  deny access to the information which is not subject to access.
    25  If the information which is not subject to access is an integral
    26  part of the public record and cannot be separated, the agency
    27  shall redact from the public record the information which is not
    28  subject to access, and the response shall grant access to the
    29  information which is subject to access. The agency may not deny
    30  access to the public record if the information which is not
    20070S0765B0842                 - 28 -     

     1  subject to access is able to be redacted. Information which an
     2  agency redacts in accordance with this subsection shall be
     3  deemed a denial.
     4  Section 108.  Commonwealth agency's response to written requests
     5                 for access.
     6     (a)  General rule.--Upon receipt of a written request for
     7  access to a record, a Commonwealth agency shall make a good
     8  faith effort to determine if the record requested is a public
     9  record and to respond as promptly as possible under the
    10  circumstances existing at the time of the request but shall not
    11  exceed ten business days from the date the written request is
    12  received by the Commonwealth agency head or other person
    13  designated by the Commonwealth agency for receiving such
    14  requests. If the Commonwealth agency fails to send the response
    15  within ten business days of receipt of the written request for
    16  access, the written request for access shall be deemed denied.
    17     (b)  Extensions.--Upon receipt of a written request for
    18  access, if a Commonwealth agency determines that one of the
    19  following applies:
    20         (1)  the request for access requires redaction of a
    21     public record;
    22         (2)  the request for access requires the retrieval of a
    23     record stored in a remote location;
    24         (3)  a timely response to the request for access cannot
    25     be accomplished due to bona fide and specified staffing
    26     limitations;
    27         (4)  a legal review is necessary to determine whether the
    28     record is a public record subject to access under this act;
    29         (5)  the requester has not complied with the Commonwealth
    30     agency's policies regarding access to public records; or
    20070S0765B0842                 - 29 -     

     1         (6)  the requester refuses to pay applicable fees
     2     authorized by section 114,
     3  the Commonwealth agency shall send written notice to the
     4  requester within ten business days of the Commonwealth agency's
     5  receipt of the request for access. The notice shall include a
     6  statement notifying the requester that the request for access is
     7  being reviewed, the reason for the review and a reasonable date
     8  that a response is expected to be provided. If the date that a
     9  response is expected to be provided is in excess of 30 days
    10  following the ten business days allowed for in subsection (a),
    11  the request for access shall be deemed denied.
    12     (c)  Denial.--If a Commonwealth agency's response is a denial
    13  of a written request for access, whether in whole or in part, a
    14  written response shall be issued and include:
    15         (1)  A description of the record requested.
    16         (2)  The specific reasons for the denial, including a
    17     citation of supporting legal authority. If the denial is a
    18     result of a determination that the record requested is not a
    19     public record, the specific reasons for the agency's
    20     determination that the record is not a public record shall be
    21     included.
    22         (3)  The typed or printed name, title, business address,
    23     business telephone number and signature of the public
    24     official or public employee on whose authority the denial is
    25     issued.
    26         (4)  Date of the response.
    27         (5)  The procedure to appeal the denial of access under
    28     this act.
    29     (d)  Certified copies.--If a Commonwealth agency's response
    30  grants a request for access, the Commonwealth agency shall, upon
    20070S0765B0842                 - 30 -     

     1  request, provide the requester with a certified copy of the
     2  public record if the requester pays the applicable fees pursuant
     3  to section 114.
     4  Section 109.  Non-Commonwealth agency's response to written
     5                 requests for access.
     6     (a)  General rule.--Upon receipt of a written request for
     7  access to a record, a non-Commonwealth agency shall make a good
     8  faith effort to determine if the record requested is a public
     9  record and to respond as promptly as possible under the
    10  circumstances existing at the time of the request but shall not
    11  exceed five business days from the date the written request is
    12  received by the non-Commonwealth agency head or other person
    13  designated in the rules established by the non-Commonwealth
    14  agency for receiving such requests. If the non-Commonwealth
    15  agency fails to send the response within five business days of
    16  receipt of the written request for access, the written request
    17  for access shall be deemed denied.
    18     (b)  Extensions.--Upon receipt of a written request for
    19  access, if a non-Commonwealth agency determines that one of the
    20  following applies:
    21         (1)  the request for access requires redaction of a
    22     public record;
    23         (2)  the request for access requires the retrieval of a
    24     record stored in a remote location;
    25         (3)  a timely response to the request for access cannot
    26     be accomplished due to bona fide and specified staffing
    27     limitations;
    28         (4)  a legal review is necessary to determine whether the
    29     record is a public record subject to access under this act;
    30         (5)  the requester has not complied with the non-
    20070S0765B0842                 - 31 -     

     1     Commonwealth agency's policies regarding access to public
     2     records; or
     3         (6)  the requester refuses to pay applicable fees
     4     authorized by section 114,
     5  the non-Commonwealth agency shall send written notice to the
     6  requester within five business days of the non-Commonwealth
     7  agency's receipt of the request notifying the requester that the
     8  request for access is being reviewed, the reason for the review
     9  and a reasonable date that a response is the review and a
    10  reasonable date that a response is expected to be provided. If
    11  the date that a response is expected to be provided is in excess
    12  of 30 days, following the five business days allowed in
    13  subsection (a), the request for access shall be deemed denied.
    14     (c)  Denial.--If a non-Commonwealth agency's response is a
    15  denial of a written request for access, whether in whole or in
    16  part, a written response shall be issued and include:
    17         (1)  A description of the record requested.
    18         (2)  The specific reasons for the denial, including a
    19     citation of supporting legal authority. If the denial is the
    20     result of a determination that the record requested is not a
    21     public record, the specific reasons for the agency's
    22     determination that the record is not a public record shall be
    23     included.
    24         (3)  The typed or printed name, title, business address,
    25     business telephone number and signature of the public
    26     official or public employee on whose authority the denial is
    27     issued.
    28         (4)  Date of the response.
    29         (5)  The procedure to appeal the denial of access under
    30     this act.
    20070S0765B0842                 - 32 -     

     1     (d)  Certified copies.--If a non-Commonwealth agency's
     2  response grants a request for access, the non-Commonwealth
     3  agency shall, upon request, provide the requester with a
     4  certified copy of the public record if the requester pays the
     5  applicable fees pursuant to section 114.
     6  Section 110.  Office of Access to Public Records.
     7     (a)  Establishment.--The Office of Access to Public Records
     8  is hereby established as an independent administrative agency.
     9  The Governor shall, subject to the advice and consent of the
    10  Senate, appoint an executive director of the office who shall
    11  hire such other staff as necessary to operate the office.
    12     (b)  Powers and duties.--The office shall have the following
    13  powers and duties:
    14         (1)  To hear appeals under section 111.
    15         (2)  To furnish to an agency advisory guidelines,
    16     opinions or other appropriate information regarding this act.
    17         (3)  To furnish to a person advisory opinions or other
    18     appropriate information regarding this act.
    19         (4)  To provide a list of Federal and State laws that
    20     exempt certain types of records from disclosure.
    21         (5)  To make its written decisions available for review.
    22         (6)  To conduct training for public officials, public
    23     employees and third persons relating to Pennsylvania's access
    24     laws.
    25         (7)  To annually report on its activities and findings
    26     regarding this act, including recommendations for changes in
    27     the law, to the Governor and the General Assembly.
    28     (c)  Fees.--
    29         (1)  The office may impose a reasonable filing fee for an
    30     appeal made under section 111, and any fees collected under
    20070S0765B0842                 - 33 -     

     1     this subsection shall be deposited in a restricted account in
     2     the General Fund which is hereby established for the office.
     3     The money from this account shall be appropriated as
     4     necessary for the operation of the office.
     5         (2)  The agency may waive the filing fee if the person
     6     requesting access to the public record is unable to afford
     7     the fee based on guidelines established by the office.
     8  Section 111.  Appeals.
     9     (a)  Administrative appeal to Office of Access to Public
    10  Records.--
    11         (1)  A party aggrieved by an agency's denial or deemed
    12     denial may, within 30 days after a request is denied or
    13     deemed denied, appeal to the office by forwarding to the
    14     office a copy of the request and the written explanation for
    15     the denial, if any, provided by the agency.
    16         (2)  (i)  Within 20 days after receipt of the appeal, the
    17         office shall rule either that the agency's denial or
    18         deemed denial of access to the record is upheld or that
    19         the agency's decision to deny access to the record is
    20         overturned and the agency must provide access to the
    21         record. The office may hold a hearing and may review the
    22         record in camera.
    23             (ii)  The 20-day period may be extended by agreement
    24         of the parties. If the parties do not agree to an
    25         extension or the office does not issue a ruling within 20
    26         days after the date of the appeal, the agency's denial
    27         shall be deemed affirmed.
    28         (3)  If the office upholds the agency's decision to deny
    29     access to the public record, the office shall fully explain
    30     in writing to the person requesting the public record the
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     1     reason for the denial. If the office rules that the agency
     2     shall provide access to the public record, the office shall
     3     fully explain in writing to the agency the reason access must
     4     be provided.
     5     (b)  Judicial appeal.--
     6         (1)  A party aggrieved by the decision of the office may,
     7     within 30 days after formally being served notice of the
     8     office's ruling, appeal to the court having jurisdiction.
     9         (2)  Within 30 days of the mailing date of the decision
    10     of the office, an aggrieved party may file a petition for
    11     review or other document as might be required by rule of
    12     court with the Commonwealth Court.
    13         (3)  Within 30 days of the mailing date of the decision
    14     of the office, an aggrieved party may file a petition for
    15     review or other document as might be required by rule of
    16     court with the court of common pleas for the county where the
    17     non-Commonwealth agency's office or facility is located or
    18     the Commonwealth Court.
    19     (c)  Notice.--All parties shall be served notice of actions
    20  commenced in accordance with subsection (a) or (b) and shall
    21  have an opportunity to respond in accordance with applicable
    22  court rules.
    23     (d)  Record on appeal.--The record before a court shall
    24  consist of the request, the agency's response, the record before
    25  the office, including the hearing transcript, if any, and the
    26  decision of the office. A court may take additional testimony
    27  and accept additional evidence as appropriate.
    28  Section 112.  Penalties, court costs and fees.
    29     (a)  Grounds.--
    30         (1)  If a court finds that an agency intentionally
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     1     violated any provision of this act, acted in bad faith or
     2     relied upon an unreasonable interpretation of the law in not
     3     providing access to a public record:
     4             (i)  The court may order the agency to pay a civil
     5         penalty of not more than $500 to be paid into a
     6         restricted account established in the General Fund under
     7         section 110.
     8             (ii)  The court shall award the prevailing party
     9         reasonable attorney fees and costs of litigation or an
    10         appropriate portion of the fees and costs.
    11         (2)  If the court finds that the legal challenge was of a
    12     frivolous nature or was brought with no substantial
    13     justification, the court shall award the prevailing party
    14     reasonable attorney fees and costs of litigation or an
    15     appropriate portion of the fees and costs.
    16     (b)  Civil penalty.--An agency or public official who does
    17  not promptly comply with a court order under this act is subject
    18  to a civil penalty of not more than $300 per day until the
    19  public records are provided, to be paid into the restricted
    20  account established in the General Fund under section 110.
    21     (c)  Training.--Any court may order agency officials and
    22  employees to attend mandatory training sessions conducted by the
    23  office, which shall include testing on compliance with the law.
    24     (d)  Other appeals.--Costs or attorney fees shall not be
    25  awarded under this section for administrative appeal to the
    26  office under section 111.
    27  Section 113.  Immunity.
    28     (a)  General rule.--Except as provided in this act and other
    29  statutes governing the release of records, no agency, public
    30  official or public employee shall be liable for civil or
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     1  criminal damages or penalties resulting from compliance or
     2  failure to comply with this act.
     3     (b)  Schedules.--No agency, public official or public
     4  employee shall be liable for civil or criminal damages or
     5  penalties under this act for complying with any written public
     6  record retention and disposition schedule.
     7  Section 114.  Fee limitations.
     8     (a)  Postage.--Fees for postage may not exceed the actual
     9  cost of mailing.
    10     (b)  Duplication.--Fees for duplication by photocopying,
    11  printing from electronic media or microfilm, copying onto
    12  electronic media, transmission by facsimile or other electronic
    13  means and other means of duplication must be reasonable and
    14  based on prevailing fees for comparable duplication services
    15  provided by local copying services.
    16     (c)  Certification.--An agency may impose reasonable fees for
    17  official certification of copies if the certification is at the
    18  behest of the requester and for the purpose of legally verifying
    19  the public record.
    20     (d)  Conversion to paper.--If a public record is only
    21  maintained electronically or in other nonpaper media,
    22  duplication fees shall be limited to the lesser of the fee for
    23  duplication on paper or the fee for duplication in the native
    24  media as provided by subsection (b) unless the requester
    25  specifically requests for the public record to be duplicated in
    26  the more expensive medium.
    27     (e)  Enhanced electronic access.--If an agency offers
    28  enhanced electronic access to public records in addition to
    29  making the public records accessible for inspection and
    30  duplication by a requester as required by this act, the agency
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     1  may establish user fees specifically for the provision of the
     2  enhanced electronic access, but only to the extent that the
     3  enhanced electronic access is in addition to making the public
     4  records accessible for inspection and duplication by a requester
     5  as required by this act. The user fees for enhanced electronic
     6  access may be a flat rate, a subscription fee for a period of
     7  time, a per-transaction fee, a fee based on the cumulative time
     8  of system access or any other reasonable method and any
     9  combination thereof. The user fees for enhanced electronic
    10  access must be reasonable and may not be established with the
    11  intent or effect of excluding persons from access to public
    12  records or duplicates thereof or of creating profit for the
    13  agency.
    14     (f)  Waiver of fees.--An agency may waive the fees for
    15  duplication of a public record, including, but not limited to,
    16  when:
    17         (1)  the requester duplicates the public record; or
    18         (2)  the agency deems it is in the public interest to do
    19     so.
    20     (g)  Limitations.--Except as otherwise provided by statute,
    21  no other fees may be imposed unless the agency necessarily
    22  incurs costs for complying with the request, and such fees must
    23  be reasonable. No fee may be imposed for an agency's review of a
    24  record to determine whether the record is a public record
    25  subject to access in accordance with this act. No fees relating
    26  to any search for records may be imposed unless the required
    27  search places an unreasonable burden upon agency employees, and
    28  the agency can establish and itemize its costs for complying
    29  with the request. Any such fees must be reasonable.
    30     (h)  Prepayment.--Prior to granting a request for access in
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     1  accordance with this act, an agency may require a requester to
     2  prepay an estimate of the fees authorized under this section if
     3  the fees required to fulfill the request are expected to exceed
     4  $100.
     5  Section 115.  Implementation.
     6     (a)  Requirement.--An agency shall establish written policies
     7  and may promulgate regulations necessary to implement this act.
     8     (b)  Content.--The written policies shall include the name of
     9  the office to which requests for access shall be addressed and a
    10  list of applicable fees.
    11     (c)  Prohibition.--A policy or regulation may not include any
    12  of the following:
    13         (1)  A limitation on the number of public records which
    14     may be requested or made available for inspection or
    15     duplication.
    16         (2)  A requirement to disclose the purpose or motive in
    17     requesting access to records which are public records.
    18     (d)  Posting.--The policies shall be conspicuously posted at
    19  the agency and may be made available by electronic means.
    20  Section 116.  Practice and procedure.
    21     The provisions of 2 Pa.C.S. (relating to administrative law
    22  and procedure) shall not apply to this act.
    23     Section 4.  This act shall take effect in 60 days.





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