PRINTER'S NO. 332
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
411
Session of
2015
INTRODUCED BY PILEGGI, BLAKE, BAKER, COSTA, FOLMER, FONTANA,
GORDNER, MENSCH, RAFFERTY, SMUCKER, STEFANO, TEPLITZ, VANCE,
WARD, WILLIAMS AND YAW, FEBRUARY 5, 2015
REFERRED TO STATE GOVERNMENT, FEBRUARY 5, 2015
AN ACT
Amending the act of February 14, 2008 (P.L.6, No.3), entitled
"An act providing for access to public information, for a
designated open-records officer in each Commonwealth agency,
local agency, judicial agency and legislative agency, for
procedure, for appeal of agency determination, for judicial
review and for the Office of Open Records; imposing
penalties; providing for reporting by State-related
institutions; requiring the posting of certain State contract
information on the Internet; and making related repeals," in
preliminary provisions, further providing for definitions; in
requirements and prohibitions, providing for Pennsylvania
Interscholastic Athletic Association; in access, providing
for inmate access; in procedure, further providing for
access, for requests, for written requests, for production of
certain records and for exceptions for public records; in
agency response, further providing for general rule and for
extension of time; in appeal of agency determination, further
providing for filing of appeal and for appeals officers; and,
in judicial review, further providing for Commonwealth
agencies, legislative agencies and judicial agencies, for fee
limitations and for Office of Open Records.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definitions of "confidential proprietary
information," "independent agency," "local agency," "personal
financial information," "requester" and "State-affiliated
entity" in section 102 of the act of February 14, 2008 (P.L.6,
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No.3), known as the Right-to-Know Law, are amended and the
section is amended by adding definitions to read:
Section 102. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
* * *
"Commercial purpose." The use of a record:
(1) for the purpose of selling or reselling any portion
of the record;
(2) to obtain names and addresses from the record for
the purpose of commercial solicitation; or
(3) in a manner through which the requester can
reasonably expect to make a profit.
The term does not include the use of a public record by an
educational or noncommercial scientific institution for
scholarly or scientific research or the use of a public record
by the news media for news gathering or dissemination in a
newspaper, periodical, digital publication or radio or
television news broadcast.
* * *
"Confidential proprietary information." Commercial or
financial information received or created by an agency:
(1) which is privileged or confidential; and
(2) the disclosure of which would cause substantial harm
to the competitive position of the person that submitted the
information.
* * *
"Independent agency." Any board, commission, authority or
other agency or officer of the Commonwealth, that is not subject
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to the policy supervision and control of the Governor. The term
does not include a legislative or judicial agency.
* * *
"Local agency." Any of the following:
(1) Any political subdivision, intermediate unit,
charter school, cyber charter school or public trade or
vocational school.
(2) Any local, intergovernmental, regional or municipal
agency, authority, council, board, commission or similar
governmental entity. This paragraph includes an economic
development authority and an industrial development
authority. The term does not include an office of an elected
tax collector.
(3) Any campus police department of a State-owned or
State-related college or university.
* * *
"Personal financial information." An individual's personal
credit, charge or debit card information; bank account or other
financial institution account information; bank, credit or
financial statements; account or PIN numbers; forms required to
be filed by a taxpayer with a Federal or Commonwealth taxing
authority; employee benefit election information; and other
information relating to an individual's personal finances.
* * *
"Requester." A person that is a legal resident of [the
United States] this Commonwealth and requests a record pursuant
to this act. The term includes an agency.
* * *
"State-affiliated entity." A Commonwealth authority or
Commonwealth entity. The term includes the Pennsylvania Higher
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Education Assistance Agency and any entity established thereby,
the Pennsylvania Gaming Control Board, the Pennsylvania Game
Commission, the Pennsylvania Fish and Boat Commission, the
Pennsylvania Housing Finance Agency, the Pennsylvania Municipal
Retirement Board, the State System of Higher Education, a
community college, the Pennsylvania Turnpike Commission, the
Pennsylvania Public Utility Commission, the Pennsylvania
Infrastructure Investment Authority, the State Public School
Building Authority[, the Pennsylvania Interscholastic Athletic
Association] and the Pennsylvania Higher Educational Facilities
Authority. The term does not include a State-related
institution.
* * *
"Time response log." A log created, received, maintained or
retained by a public safety answering point (PSAP), as defined
in 35 Pa.C.S. § 5302 (relating to definitions), containing the
following information:
(1) The time the call was received by the PSAP.
(2) The time the PSAP contacted or dispatched the
appropriate agency for response.
(3) The time the appropriate agency responded.
(4) The time the appropriate agency arrived on the
scene.
(5) The time the appropriate agency became available.
(6) The address of the incident or the cross street or
mile marker nearest the scene of the incident.
* * *
Section 2. The act is amended by adding sections to read:
Section 307. Pennsylvania Interscholastic Athletic Association.
For purposes of this act, the Pennsylvania Interscholastic
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Athletic Association is considered to be a local agency and
shall provide public records in accordance with this act.
Section 508. Inmate access.
(a) Status.--Except as provided in subsection (b), an inmate
may not be a requester for purposes of this act.
(b) Records.--An agency shall provide an inmate with copies
of the following records as they pertain directly to the inmate
if the disclosure of the record will not diminish the safety or
security of any person or correctional facility:
(1) Criminal records relating to the criminal commitment
of the inmate.
(2) Institutional housing information.
(3) The inmate's financial records.
(4) The inmate's work records.
(5) The inmate's educational records.
(6) The inmate's disciplinary records.
(7) Disciplinary, housing and other policies adopted by
the correctional institution or the Department of
Corrections.
(8) A record relating to any Federal or State benefit
received by the inmate or for which the inmate is eligible.
(9) The inmate's tax records.
(10) The inmate's voting records.
(11) Records relating to any license issued to the
inmate by a Commonwealth or local agency.
(c) Applicability.--This section shall not prohibit an
agency from voluntarily permitting an inmate to have access to
records not listed under subsection (b) or prevent an agency
from complying with a lawful subpoena or court order.
Section 3. Sections 701, 702, 703 and 707 of the act are
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amended to read:
Section 701. Access.
(a) General rule.--Unless otherwise provided by law, a
public record, legislative record or financial record shall be
accessible for inspection and duplication in accordance with
this act. A record being provided to a requester shall be
provided in the medium, computer file format or other format
requested if it exists in that medium, computer file format or
other format; otherwise, it shall be provided in the medium in
which it exists. Public records, legislative records or
financial records shall be available for access during the
regular business hours of an agency.
(b) Construction.--Nothing in this act shall be construed to
require access to any computer either of an agency or individual
employee of an agency.
Section 702. Requests.
Agencies may fulfill verbal[, written or anonymous verbal] or
written requests for access to records under this act. If the
requester wishes to pursue the relief and remedies provided for
in this act, the request for access to records must be a written
request.
Section 703. Written requests.
A written request for access to records may be submitted in
person, by mail, by e-mail, by facsimile or, to the extent
provided by agency rules, by any other electronic means. A
written request must be addressed to the open-records officer
designated pursuant to section 502 or to the administrative
office of the agency. [Employees of an] The administrative
office of the agency shall [be directed to] promptly forward
requests for records to the open-records officer of the agency
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that received the request. A written request [should] shall
include the physical mailing address of the requester, shall
identify or describe the records sought with sufficient
specificity to enable the agency to ascertain which records are
being requested and shall include the name and address to which
the agency should address its response. [A] Except as required
under section 707(d), a written request need not include any
explanation of the requester's reason for requesting or intended
use of the records unless otherwise required by law. A written
request must include the name and address of the requester and
the name of the agency to which the request is addressed.
Section 707. Production of certain records.
(a) General rule.--If, in response to a request, an agency
produces a record that is not a public record, legislative
record or financial record, the agency shall notify any third
party that provided the record to the agency, the person that is
the subject of the record and the requester.
(b) Requests for trade secrets.--An agency shall notify a
third party of a request for a record if the third party
provided the record and included a written statement signed by a
representative of the third party that the record contains a
trade secret or confidential proprietary information.
Notification shall be provided within five business days of
receipt of the request for the record. The third party shall
have five business days from receipt of notification from the
agency to provide input on the release of the record. The agency
shall deny the request for the record or release the record
within ten business days of the provision of notice to the third
party and shall notify the third party of the decision.
(c) Transcripts.--
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(1) Prior to an adjudication becoming final, binding and
nonappealable, a transcript of an administrative proceeding
shall be provided to a requester by the agency stenographer
or a court reporter, in accordance with agency procedure or
an applicable contract.
(2) Following an adjudication becoming final, binding
and nonappealable, a transcript of an administrative
proceeding shall be provided to a requester in accordance
with the duplication rates established in section 1307(b).
(3) This subsection shall not be construed to require an
agency to transcribe a proceeding solely for purposes of
responding to a request under this act.
(d) Commercial requests.--An agency may require a requester
to certify in writing whether the request is for a commercial
purpose. Certification shall be submitted on a form developed by
the Office of Open Records that shall provide a checkoff for the
requester to use to indicate whether the request is for a
commercial purpose. A requester that submits a false written
statement shall be subject to 18 Pa.C.S. § 4904 (relating to
unsworn falsification to authorities).
(e) Home address.--If a request includes a home address of
an employee of the agency, the agency must notify the subject of
the request at least 14 days prior to release of the record. If
the subject of the request notifies the agency that the
exception under section 708(b)(1)(ii) applies, the agency shall
determine if the home address shall be withheld.
Section 4. Section 708(b)(10)(i) and (ii), (13), (17) and
(18) and (c) of the act are amended and subsection (b) is
amended by adding paragraphs to read:
Section 708. Exceptions for public records.
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* * *
(b) Exceptions.--Except as provided in subsections (c) and
(d), the following are exempt from access by a requester under
this act:
* * *
(5.1) The payment records of a person receiving services
from a municipal water or sewer authority or other municipal
authority, municipality or cooperative that provides
electricity, water, sewer, storm water, natural gas or
similar service. The authority, municipality or cooperative
shall establish a process to provide a clearance certificate
to a person to certify that all fees and charges owed have
been paid. A reasonable fee for a clearance certificate may
be charged. This paragraph shall not apply to reports of
aggregate payments made by a municipality, authority or
cooperative to assist low-income consumers or other consumers
in obtaining services. If funds are owed, the amount of the
delinquency shall appear on the clearance certificate.
* * *
(10) As follows:
(i) A record that reflects, contains or includes:
(A) The internal, predecisional deliberations of
an agency, its members, employees or officials or
predecisional deliberations between agency members,
employees or officials and members, employees or
officials of another agency, including predecisional
deliberations relating to a budget recommendation,
legislative proposal, legislative amendment,
contemplated or proposed policy or course of action
or any research, memos or other documents used in the
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predecisional deliberations.
(B) The strategy to be used to develop or
achieve the successful adoption of a budget,
legislative proposal or regulation.
(ii) Subparagraph (i)(A) shall apply to agencies
subject to 65 Pa.C.S. Ch. 7 (relating to open meetings)
in a manner consistent with 65 Pa.C.S. Ch. 7. A record
which is not otherwise exempt from access under this act
and which is presented to a quorum for deliberation in
accordance with 65 Pa.C.S. Ch. 7 shall be a public record
regardless of whether a vote occurs at the meeting.
* * *
(13) Records that would disclose the identity of, or
personal financial information relating to, an individual who
lawfully makes a donation to or for the benefit of an agency
unless the donation is intended for or restricted to
providing remuneration or personal tangible benefit to a
named public official or employee of the agency, including
lists of potential donors compiled by an agency to pursue
donations, donor profile information or personal identifying
information relating to a donor.
* * *
(17) [A] Except for a safety inspection report made
pursuant to Federal or State law, a record of an agency
relating to a noncriminal investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence
and reports.
(iii) A record that includes the identity of a
confidential source, including individuals subject to the
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act of December 12, 1986 (P.L.1559, No.169), known as the
Whistleblower Law.
(iv) A record that includes information made
confidential by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of
the following:
(A) Reveal the institution, progress or result
of an agency investigation, except the imposition of
a fine or civil penalty, the suspension, modification
or revocation of a license, permit, registration,
certification or similar authorization issued by an
agency or an executed settlement agreement unless the
agreement is determined to be confidential by a
court.
(B) Deprive a person of the right to an
impartial adjudication.
(C) Constitute an unwarranted invasion of
privacy.
(D) Hinder an agency's ability to secure an
administrative or civil sanction.
(E) Endanger the life or physical safety of an
individual.
(18) Emergency dispatches as follows:
(i) Records or parts of records, except time
response logs, pertaining to audio recordings, telephone
or radio transmissions received by emergency dispatch
personnel, including 911 recordings.
(ii) This paragraph shall not apply to a 911
recording, or a transcript of a 911 recording, if the
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agency or a court determines that the public interest in
disclosure outweighs the interest in nondisclosure.
(iii) The home address of the individual who
accesses emergency dispatch.
* * *
(31) An agency's financial institution account numbers,
routing numbers, credit card numbers and passwords.
(32) A record of any of the following:
(i) A volunteer ambulance service.
(ii) A volunteer fire company.
(iii) A volunteer rescue company.
(iv) A volunteer water rescue company.
(v) A volunteer organization that provides hazardous
materials response services.
(vi) A volunteer organization that provides
emergency medical services.
Section 506(d)(1) shall apply to a volunteer organization
under this paragraph that contracts with a local agency to
provide services to the local agency.
(c) Financial records.--The exceptions set forth in
subsection (b) shall not apply to financial records, except that
an agency may redact that portion of a financial record
protected under subsection (b)(1), (2), (3), (4), (5), (6),
(11), (13), (16) or (17). An agency shall not disclose the
identity of an individual performing an undercover or covert law
enforcement activity.
* * *
Section 5. Sections 901, 902 and 1101 of the act are amended
to read:
Section 901. General rule.
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(a) Determination.--Upon receipt of a written request for
access to a record, an agency shall make a good faith effort to
determine if the record requested is a public record,
legislative record or financial record and whether the agency
has possession, custody or control of the identified record, and
to respond as promptly as possible under the circumstances
existing at the time of the request. All applicable fees shall
be paid in order to receive access to the record requested.
(b) Time for response.--The time for response shall not
exceed, in the case of a request made in person or submitted by
regular mail, e-mail, web form, facsimile or similar means, five
business days from the date the written request is received by
the open-records officer for an agency. If the agency fails to
send the response within five business days of receipt of the
written request for access, the written request for access shall
be deemed denied.
Section 902. Extension of time.
(a) Determination.--Upon receipt of a written request for
access, the open-records officer for an agency shall determine
if one of the following applies:
(1) the request for access requires redaction of a
record in accordance with section 706;
(2) the request for access requires the retrieval of a
record stored in a remote location;
(3) a timely response to the request for access cannot
be accomplished due to bona fide and specified staffing
limitations;
(4) a legal review is necessary to determine whether the
record is a record subject to access under this act;
(5) the requester has not complied with the agency's
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policies regarding access to records;
(6) the requester refuses to pay applicable fees
authorized by this act; [or]
(7) the extent or nature of the request precludes a
response within the required time period[.]; or
(8) time is required to provide notice under section
707(e).
(b) Notice.--
(1) Upon a determination that one of the factors listed
in subsection (a) applies, the open-records officer shall
send written notice to the requester within five business
days of receipt of the request for access under subsection
(a).
(2) The notice shall include a statement notifying the
requester that the request for access is being reviewed, the
reason for the review, a reasonable date that a response is
expected to be provided and an estimate of applicable fees
owed when the record becomes available. If the date that a
response is expected to be provided is in excess of 30 days,
following the five business days allowed for in section 901,
the request for access shall be deemed denied unless the
requester has agreed in writing to an extension to the date
specified in the notice.
(3) If the requester agrees to the extension, the
request shall be deemed denied on the day following the date
specified in the notice if the agency has not provided a
response by that date.
Section 1101. Filing of appeal.
[(a) Authorization.--
(1) If a written request for access to a record is]
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(a) Authorization.--The following shall apply:
(1) (i) If a written request for access to a record is
denied or deemed denied, the requester may file an appeal
with the Office of Open Records or judicial, legislative
or other appeals officer designated under section 503(d)
within [15] 20 business days of the [mailing] postmark or
e-mail date of the agency's response or within [15] 20
business days of a deemed denial, whichever comes first.
(ii) The appeal shall [state the grounds upon which
the requester asserts that the record is a public record,
legislative record or financial record and shall address
any grounds stated by the agency for delaying or denying
the request.] include the following:
(A) A copy of the original request.
(B) The agency denial.
(C) A list of the records that were denied.
(iii) The office shall provide a form on its
publicly accessible Internet website which may be used by
the requester to file the appeal.
(2) Except as provided in section 503(d), in the case of
an appeal of a decision by a Commonwealth agency or local
agency, the Office of Open Records shall assign an appeals
officer to review the denial.
(b) Determination.--
(1) Unless the requester agrees otherwise, the appeals
officer shall make a final determination which shall be
mailed to the requester and the agency within 30 days of
receipt of the appeal filed under subsection (a). The appeals
officer may extend this deadline by up to 15 days by
providing notice to both parties. If a hearing or in-camera
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review is held under section 1102(a)(2), the appeals officer
may extend the deadline up to 90 additional days.
(1.1) If the issue before the office is substantially
the same as an issue currently on appeal to Commonwealth
Court, the appeals officer may stay the appeal until
Commonwealth Court issues a decision on the matter.
(2) If the office or other appeals officer fails to
issue a final determination within 30 days or as otherwise
provided under paragraph (1), the appeal is deemed denied.
(3) Prior to issuing a final determination, a hearing
may be conducted. The determination by the appeals officer
shall be a final order. The appeals officer shall provide a
written explanation of the reason for the decision to the
requester and the agency.
(c) Direct interest.--
(1) A person other than the agency or requester with a
direct interest in the record subject to an appeal under this
section may, within 15 days following receipt of actual
knowledge of the appeal but no later than the date the
appeals officer issues an order, file a written request to
provide information or to appear before the appeals officer
or to file information in support of the requester's or
agency's position.
(2) The appeals officer may grant a request under
paragraph (1) if:
(i) no hearing has been held;
(ii) the appeals officer has not yet issued its
order; and
(iii) the appeals officer believes the information
will be probative.
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(3) Copies of the written request shall be sent to the
agency and the requester.
Section 6. Section 1102(a) of the act is amended and the
section is amended by adding a subsection to read:
Section 1102. Appeals officers.
(a) Duties.--An appeals officer designated under section 503
shall do all of the following:
(1) Set a schedule for the requester and the open-
records officer to submit documents in support of their
positions.
(2) Review all information filed relating to the
request. The appeals officer may hold a hearing or conduct an
in-camera review, in which case the appeals officer may
extend the deadline in section 1101(b)(1) by up to 90 days. A
decision to hold or not to hold a hearing is not appealable.
The appeals officer may admit into evidence testimony,
evidence and documents that the appeals officer believes to
be reasonably probative and relevant to an issue in dispute.
The appeals officer may limit the nature and extent of
evidence found to be cumulative.
(3) Consult with agency counsel as appropriate.
(4) Issue a final determination on behalf of the Office
of Open Records or other agency.
* * *
(c) Review.--The Office of Open Records may require an
agency to submit a record for the purpose of conducting an in-
camera review to determine if the record is a public record.
Section 7. Section 1301 heading and (a) of the act are
amended to read:
Section 1301. Commonwealth agencies, legislative agencies
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[and], judicial agencies and the Office of Open
Records.
(a) General rule.--Within 30 days of the mailing date of the
final determination of the appeals officer relating to a
decision of a Commonwealth agency, a legislative agency [or], a
judicial agency or the Office of Open Records issued under
section 1101(b) or the date a request for access is deemed
denied, a requester or the agency may file a petition for review
or other document as might be required by rule of court with the
Commonwealth Court. The court shall notify the Commonwealth
agency, legislative agency, judicial agency or Office of Open
Records of the appeal. The decision of the court shall contain
findings of fact and conclusions of law based upon the evidence
as a whole. The decision shall clearly and concisely explain the
rationale for the decision.
* * *
Section 8. Section 1307(h) of the act is amended and the
section is amended by adding a subsection to read:
Section 1307. Fee limitations.
* * *
(g.1) Additional fees.--
(1) Notwithstanding subsection (e), each agency may
assess fees for responding to commercial requests under this
act. In addition to fees under subsections (a) and (b),
reasonable standard charges may be charged for document
search, retrieval, review and redaction for documents for
commercial use.
(2) Fees under paragraph (1) must be calculated at no
more than the hourly wage of the lowest-paid public employee
of the agency who is capable of searching, retrieving,
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reviewing and providing for redaction of the information
necessary to comply with the request.
(3) A fee may not be charged under paragraph (2) for the
first hour of search and retrieval time for all commercial
requests from a single requester in a 90-day period.
(h) Prepayment.--Prior to granting a request for access in
accordance with this act, an agency may require a requester to
prepay an estimate of the fees authorized under this section if
the fees required to fulfill the request are expected to exceed
[$100] $50.
Section 9. Section 1310 of the act is amended to read:
Section 1310. Office of Open Records.
(a) Establishment.--There is established [in the Department
of Community and Economic Development an] the Office of Open
Records, as an independent agency. The office shall do all of
the following:
(1) Provide information relating to the implementation
and enforcement of this act.
(2) Issue advisory opinions to agencies and requesters.
(3) Provide annual training courses to agencies, public
officials and public employees on this act and 65 Pa.C.S. Ch.
7 (relating to open meetings).
(4) Provide annual, regional training courses to local
agencies, public officials and public employees.
(5) Assign appeals officers to review appeals of
decisions by Commonwealth agencies or local agencies, except
as provided in section 503(d), filed under section 1101 and
issue orders and opinions. The office shall employ or
contract with attorneys to serve as appeals officers to
review appeals and, if necessary, to hold hearings on a
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regional basis under this act. Each appeals officer must
comply with all of the following:
(i) Complete a training course provided by the
Office of Open Records prior to acting as an appeals
officer.
(ii) If a hearing is necessary, hold hearings
regionally as necessary to ensure access to the remedies
provided by this act.
(iii) Comply with the procedures under section
1102(b).
(6) Establish an informal mediation program to resolve
disputes under this act.
(7) Establish an Internet website with information
relating to this act, including information on fees, advisory
opinions and decisions and the name and address of all open
records officers in this Commonwealth.
(8) Conduct a biannual review of fees charged under this
act.
(9) Annually report on its activities and findings to
the Governor and the General Assembly. The report shall be
posted and maintained on the Internet website established
under paragraph (7).
(b) Executive director.--Within 90 days of the effective
date of this section, the Governor shall appoint an executive
director of the office who shall serve for a term of six years.
Compensation shall be set by the Executive Board established
under section 204 of the act of April 9, 1929 (P.L.177, No.175),
known as The Administrative Code of 1929. The executive director
may serve no more than two terms.
(c) Limitation.--The executive director shall not seek
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election nor accept appointment to any political office during
his tenure as executive director and for one year thereafter.
(d) Staffing.--The executive director shall appoint
attorneys to act as appeals officers and additional clerical,
technical and professional staff as may be appropriate and may
contract for additional services as necessary for the
performance of the executive director's duties. The compensation
of attorneys and other staff shall be set by the Executive
Board. The appointment of attorneys shall not be subject to the
act of October 15, 1980 (P.L.950, No.164), known as the
Commonwealth Attorneys Act.
(e) Duties.--
(1) The executive director shall ensure that the duties
of the Office of Open Records are carried out and shall
monitor cases appealed to the Office of Open Records.
(2) The Department of Community and Economic Development
shall provide payroll and administrative support to the
office.
(3) The executive director shall promulgate regulations
to administer this act. Initial rulemaking under this
paragraph shall be initiated no later than December 31, 2015.
(e.1) Public comment.--The office shall abstain from public
comment about a pending proceeding before the office. This
subsection shall not prohibit employees of the office from
making public statements in the course of official duties, from
issuing written advisory opinions, from making general comments
on this act that are not related to a specific pending case or
from explaining the procedures of the office.
(f) Appropriation.--The appropriation for the office shall
be in a separate line item and shall be under the jurisdiction
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of the executive director.
(g) Participation.--The office may participate as amicus
curiae in an appeal from a decision of the office and may, upon
approval of an appellate court, participate in oral argument.
Section 10. This act shall take effect in 60 days.
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