PRIOR PRINTER'S NOS. 813, 2688 PRINTER'S NO. 2800
No. 443 Session of 2007
INTRODUCED BY MAHONEY, KING, DePASQUALE, BARRAR, BASTIAN,
CALTAGIRONE, CARROLL, CREIGHTON, DALLY, FREEMAN, GALLOWAY,
GEORGE, GERGELY, GIBBONS, GOODMAN, HARHAI, HARKINS, HORNAMAN,
JOSEPHS, KORTZ, KOTIK, KULA, MANDERINO, MARKOSEK, McILHATTAN,
MELIO, M. O'BRIEN, PALLONE, PETRARCA, READSHAW, ROAE, SAYLOR,
SEIP, SIPTROTH, STABACK, TANGRETTI, WALKO, J. WHITE,
YOUNGBLOOD, SOLOBAY, DALEY, LENTZ, HUTCHINSON, YUDICHAK,
PYLE, R. STEVENSON, M. SMITH, SWANGER, YEWCIC, BRENNAN,
GERBER, K. SMITH, WAGNER, R. TAYLOR, RUBLEY, McILVAINE SMITH,
VULAKOVICH, NAILOR, HANNA, PICKET, MURT, GRUCELA, RAMALEY,
DeWEESE AND REED, MARCH 13, 2007
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
OCTOBER 30, 2007
AN ACT
1 Requiring certain records of the Commonwealth and its political
2 subdivisions, authorities and agencies and other public
3 bodies to be open for examination, inspection and copying for
4 denial or refusal of access under certain circumstances, for
5 final agency determinations, for appeals, for court costs and
6 attorney fees, for penalties and for immunity; establishing
7 the Pennsylvania Public Records Office and providing for its
8 powers and duties; and making a related repeal.
9 Chapter 1. Preliminary Provisions
10 Section 101. Short title.
11 Section 102. Legislative findings.
12 Section 103. Definitions.
13 Section 104. Construction.
14 Chapter 3. Access to Public Records
15 Section 301. Authorization.
16 Section 302. Accessibility.
1 Section 303. Designation of compliance officer.
2 Section 304. Method of request.
3 Section 305. Agency response.
4 Section 306. Creation of a public record not required.
5 Section 307. Records deemed inaccessible.
6 Section 308. Agency discretion.
7 Section 309. Fee limitations.
8 Chapter 5. Public Records Office
9 Section 501. Pennsylvania Public Records Office.
10 Section 502. Administrative appeals from Commonwealth
11 agencies and local agencies.
12 Section 503. Judicial review.
13 Section 504. Penalties, court costs and attorney fees.
14 Section 505. Immunity.
15 Chapter 7. Administration and Enforcement
16 Section 701. Policies and regulations.
17 Section 702. Confidentiality agreements.
18 Section 703. Practice and procedure.
19 Section 704. Access to personal record.
20 Section 705. Prohibition against destruction or damage of <--
21 records.
22 Section 706. Replevin of public records unlawfully removed.
23 SECTION 705. (RESERVED). <--
24 SECTION 706. (RESERVED).
25 Section 707. Authority not restricted.
26 Section 708. Internet.
27 Section 709. Transcripts prepared by court reporter or other <--
28 transcriber.
29 SECTION 709. TRANSCRIPTS OF HEARINGS AND ADMINISTRATIVE <--
30 PROCEEDINGS.
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1 Chapter 9. State-Related Institutions
2 Section 901. Reporting.
3 Section 902. Contents of report.
4 Section 903. Copies and posting.
5 Chapter 21. Miscellaneous Provisions
6 Section 2101. Applicability.
7 Section 2102. Repeals.
8 Section 2103. Effective date.
9 The General Assembly of the Commonwealth of Pennsylvania
10 hereby enacts as follows:
11 CHAPTER 1
12 PRELIMINARY PROVISIONS
13 Section 101. Short title.
14 This act shall be known and may be cited as the Open Records
15 Act.
16 Section 102. Legislative findings.
17 The General Assembly finds and declares as follows:
18 (1) The free flow of information between State
19 Government and its citizens is essential to the continued
20 growth and success of the democratic process, and access to
21 public records enables citizens to be informed about the
22 official business of public officials and public employees
23 and the activities of government agencies.
24 (2) Access to public records should be balanced against
25 the protection of personal privacy rights and ensuring the
26 public safety and welfare of this Commonwealth and its
27 citizens, as all are vital to the preservation and
28 functioning of the democratic process.
29 (3) Access to information on the appropriation,
30 expenditure and investment of public money is important to
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1 encourage public oversight of its government.
2 (4) Access to information about the conduct and
3 activities of public officials, public employees and
4 government agencies assists the public in understanding its
5 government, monitoring its government and making informed
6 judgments about how to exercise its political power.
7 (5) Government has a duty to preserve the physical
8 integrity of public records for purposes of public access.
9 (6) Technological advances have resulted in new ways to
10 create, store and use public records and necessitate rules
11 regarding access to public records to make information
12 available to the public and rules to provide guidance to
13 public officials and public employees charged with the
14 responsibility of making public records accessible.
15 Section 103. Definitions.
16 The following words and phrases when used in this act shall
17 have the meanings given to them in this section unless the
18 context clearly indicates otherwise:
19 "Administrative proceeding." A proceeding by an agency the
20 outcome of which is required to be based on a record or
21 documentation prescribed by law or in which law or regulation is
22 particularized in application to individuals. The term includes
23 an appeal.
24 "Agency." A Commonwealth agency, a local agency or a
25 legislative agency.
26 "Commonwealth agency." An executive agency, an independent
27 agency or a State-affiliated entity. The term includes a
28 committee created by an executive agency, an independent agency
29 or a State-affiliated entity which is authorized to render
30 advice or to take official action on behalf of the executive
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1 agency, an independent agency or a State-affiliated entity.
2 "Compliance officer." The person designated by an agency
3 head to respond to open records requests made pursuant to this
4 act.
5 "Executive agency." The Governor and the departments,
6 boards, commissions, authorities and other officers and agencies
7 of the Commonwealth. The term does not include any court or
8 other officer or agency of the unified judicial system, the
9 General Assembly and its officers and agencies or any
10 independent agency or State-affiliated entity.
11 "Independent agency." Boards, commissions and other agencies
12 and officers of the Commonwealth which are not subject to the
13 policy supervision and control of the Governor. The term
14 includes the Office of Attorney General, the Department of the
15 Auditor General, and the Treasury Department. The term does not
16 include any State-affiliated entity, any court or other officer
17 or agency of the unified judicial system, the General Assembly
18 and its officers and agencies, any State-related institution,
19 political subdivision or any local, regional or metropolitan
20 transportation authority.
21 "Intellectual property." The term includes all of the
22 following:
23 (1) An idea, invention, process, program, data, formula,
24 patent, license, copyright, trademark or trade secret as
25 defined under 12 Pa.C.S. § 5302 (relating to definitions).
26 (2) An application, right or registration relating to
27 any idea, invention, process, program, data, formula, patent,
28 license, copyright, trademark or trade secret as defined
29 under 12 Pa.C.S. § 5302.
30 "Judicial agency." The term includes:
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1 (1) The Pennsylvania Supreme Court.
2 (2) The Superior Court of Pennsylvania.
3 (3) The Commonwealth Court of Pennsylvania.
4 (4) Each court of common pleas.
5 (5) The Administrative Office of the Pennsylvania
6 Courts.
7 (6) Any office or subordinate unit created by an entity
8 in paragraph (1), (2), (3), (4) or (5).
9 "Legislative agency." The term includes:
10 (1) The Senate of Pennsylvania.
11 (2) The Republican and Democratic POLITICAL PARTY <--
12 Caucuses of the Senate of Pennsylvania.
13 (3) The Pennsylvania House of Representatives.
14 (4) The Republican and Democratic POLITICAL PARTY <--
15 Caucuses of the Pennsylvania House of Representatives.
16 (5) The Capitol Preservation Committee.
17 (6) The Center for Rural Pennsylvania.
18 (7) The Joint Legislative Air and Water Pollution
19 Control and Conservation Committee.
20 (8) The Joint State Government Committee.
21 (9) The Legislative Budget and Finance Committee.
22 (10) The Legislative Data Processing Committee.
23 (11) The Independent Regulatory Review Commission.
24 (12) The Legislative Reference Bureau.
25 (13) The Local Government Commission.
26 (14) The Pennsylvania Commission on Sentencing.
27 "Local agency." The term includes:
28 (1) A political subdivision, including any intermediate
29 unit or public trade or vocational school and any department,
30 office, board or other subordinate unit created under and
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1 subject to the policy supervision and control of the
2 political subdivision.
3 (2) Any local, intergovernmental, regional or municipal
4 agency, authority, council, board, commission or other
5 governmental entity created by one or more political
6 subdivisions, whether or not such authority is subject to the
7 policy supervision and control of the political subdivision
8 or subdivisions.
9 (3) An entity of a political subdivision created for the
10 purpose of performing a governmental function. For purposes
11 of this paragraph, the term "governmental function" includes
12 services or functions which are usually, or have previously
13 been, performed by a political subdivision prior to the
14 performance of such services or functions by an entity for
15 the benefit of the public.
16 (4) An entity contracted by a political subdivision to
17 perform a governmental function, but only insofar as the
18 entity's records regarding the contracted governmental
19 function are concerned. With respect to records unrelated to
20 the entity's performance of the governmental function, the
21 entity shall not be considered a local agency.
22 (5) Any school board or board of education.
23 (6) Any committee created by an entity under paragraph
24 (1), (2), (3), (4) or (5), which is authorized to render
25 advice or to take official action on behalf of the entity.
26 "Privilege." The attorney-work product doctrine, the
27 attorney-client privilege, the doctor-patient privilege, the
28 executive privilege or any other like privilege or doctrine
29 recognized by a Federal or Commonwealth court interpreting the
30 Constitution or laws of this Commonwealth and the United States.
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1 The term includes communication between a legislator and a
2 constituent and all documents related to that communication.
3 "Public official." An elected or appointed official of a
4 Commonwealth agency, local agency or legislative agency. The
5 term does not include an employee of an agency.
6 "Public record." A record that has been determined to be
7 publicly accessible under section 301.
8 "Public records office." The Pennsylvania Public Records
9 Office established in section 501.
10 "Record." Information regardless of the physical form,
11 characteristics or means of storage transmission, which is made,
12 received or retained by an agency. The term includes documents,
13 papers and letters, maps, books, tapes, photographs, films and
14 sound recordings and data processed or image-processed
15 documents.
16 "Social services." Cash assistance and other welfare
17 benefits, medical, mental and other health care services, drug
18 and alcohol treatment, adoption services, vocational and
19 occupational training, education and counseling, workers'
20 compensation and unemployment compensation services, foster care
21 services and services for victims of crimes.
22 "State-affiliated entity." A Commonwealth authority or a
23 Commonwealth entity. The term includes the Pennsylvania Turnpike
24 Commission, the Pennsylvania Housing Finance Agency, the
25 Pennsylvania Higher Education Assistance Agency, the
26 Pennsylvania Municipal Retirement System, the Pennsylvania
27 Infrastructure Investment Authority, the State Public School
28 Building Authority, the Pennsylvania Higher Educational
29 Facilities Authority and the State System of Higher Education.
30 The term does not include any court or other officer or agency
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1 of the unified judicial system, the General Assembly and its
2 officers and agencies, any State-related institution, political
3 subdivision or any local, regional or metropolitan
4 transportation authority.
5 "State-related institution." The Pennsylvania State
6 University, the University of Pittsburgh, Lincoln University or
7 Temple University.
8 Section 104. Construction.
9 Nothing in this act is intended to modify, rescind or
10 supersede any public record retention and disposition schedule
11 established pursuant to law.
12 CHAPTER 3
13 ACCESS TO PUBLIC RECORDS
14 Section 301. Authorization.
15 (a) General rule.--Except as set forth in subsection (b), a <--
16 AN AGENCY record shall be presumed to be a public record unless <--
17 an agency determines that it is not publicly accessible under
18 this act or if any provision under subsection (b) applies. If a
19 record is determined to be accessible, it shall be made
20 available by the agency for inspection and copying, subject to
21 the provisions of this act.
22 (B) EXPENDITURES.--ALL EXPENDITURES MADE BY THE GENERAL <--
23 ASSEMBLY FOR THE USE OF THE GENERAL ASSEMBLY SHALL BE CONSIDERED
24 A PUBLIC RECORD.
25 (C) CONTRACTS.--ANY CONTRACT ENTERED INTO BY THE GENERAL
26 ASSEMBLY SHALL BE CONSIDERED A PUBLIC RECORD AND SHALL INCLUDE A
27 LISTING OF THOSE INDIVIDUALS, THEIR NAMES AND ADDRESSES, WHO ARE
28 EXPRESSLY EXECUTING THE CONTRACT.
29 (b) (D) Exceptions.--Subsection (a) does not apply if the <--
30 record is:
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1 (1) prohibited from being disclosed under any other
2 Federal or State law or regulation;
3 (2) permitted by Federal or State law but the disclosure
4 of which would result in the loss of Federal or State
5 funding;
6 (3) prohibited by judicial decree;
7 (4) protected under the free speech or debate clauses
8 under section 15 of Article II of the Constitution of
9 Pennsylvania or section 6 of Article I of the Constitution of
10 the United States;
11 (5) protected by a privilege;
12 (6) prohibited from being disclosed because it is
13 covered under one or more provisions under section 307; or
14 (7) e-mail.
15 (c) (E) Burden.--For any request of a record which is <--
16 determined to be publicly inaccessible, the burden shall be on
17 the agency to show that subsection (b) applies.
18 Section 302. Accessibility.
19 (A) GENERAL RULE.--Subject to the provisions of section 305, <--
20 an agency shall make a public record accessible during the
21 agency's regular business hours. A public record shall be
22 provided to the person requesting access either in paper or in
23 an electronic format. If access to a public record is routinely
24 available only by electronic means, the agency shall provide
25 access to inspect the public record at an office of the agency.
26 (B) INTERNET ACCESS.--THE DEPARTMENT OF COMMUNITY AND <--
27 ECONOMIC DEVELOPMENT SHALL POST ON ITS WEBSITE A LIST OF
28 COMMUNITY REVITALIZATION GRANTS BY LEGISLATIVE AND SENATORIAL
29 DISTRICTS.
30 Section 303. Designation of compliance officer.
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1 (a) Commonwealth agencies and local agencies.--Every
2 Commonwealth agency and local agency shall designate a
3 compliance officer to respond to requests for access to public
4 records pursuant to this act.
5 (b) Legislative agencies.--
6 (1) The Secretary of the Senate is designated as the
7 compliance officer for the Senate.
8 (2) The Chief Clerk of the House of Representatives is
9 designated as the compliance officer for the House of
10 Representatives.
11 (3) Each remaining legislative agency listed under
12 section 103 shall designate a compliance officer.
13 Section 304. Method of request.
14 (a) Form.-- <--
15 (1) An agency may fulfill oral requests for access to
16 records, which may be reviewed by the compliance officer
17 (A) ORAL REQUESTS.--AN AGENCY MAY FULFILL ORAL REQUESTS FOR <--
18 ACCESS TO RECORDS, WHICH MAY BE REVIEWED BY THE COMPLIANCE
19 OFFICER designated by the agency under section 303. If the
20 person making the request wishes to pursue the relief and
21 remedies provided under this act, the person must make a written
22 request.
23 (2) A written request for access to records must be <--
24 submitted in person, by mail, by facsimile or by any other
25 (B) REQUESTS IN WRITING.--A WRITTEN REQUEST FOR ACCESS TO <--
26 RECORDS MUST BE SUBMITTED IN PERSON, BY MAIL, BY FACSIMILE OR BY
27 ANY OTHER electronic means as provided by the agency. A written
28 request must be addressed to the governing body or the chief
29 executive officer of the agency or to the compliance officer
30 designated by the agency. A written request must identify or
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1 describe the records sought with sufficient specificity to
2 enable the agency to ascertain which records are being requested
3 and must include the name and address to which the agency should
4 address its response. Except as otherwise provided by law, a
5 request need not include an explanation of the reason the
6 request is made, nor the intended use of the public record
7 requested. A REQUEST FOR RECORDS SHALL NOT BE DENIED DUE TO <--
8 BEING ADDRESSED TO AN INCORRECT OFFICIAL OR EMPLOYEE. AN
9 INCORRECTLY ADDRESSED REQUEST SHALL BE FORWARDED IMMEDIATELY TO
10 THE PROPER OFFICIAL OR EMPLOYEE.
11 (3) An agency shall not be required to comply with a <--
12 request which:
13 (i) lacks significant specificity and is, thus,
14 overly broad or burdensome; or
15 (ii) is adjudged by the compliance officer or by the
16 governing body or the chief executive officer of the
17 agency to be an attempt by the person making the request
18 to harass the agency.
19 (b) (Reserved).
20 Section 305. Agency response.
21 (a) Action.--
22 (1) Upon receipt of a written request for access to a
23 record, the agency shall make a good faith effort to
24 determine if the record requested is one to which public
25 access is permitted, and the compliance officer shall respond
26 within ten business days from the date the request. If the
27 agency fails to respond to the person making the request
28 within ten business days from the date of the request, the
29 request for access shall be deemed denied.
30 (2) The agency shall notify the person that:
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1 (i) the record is determined to be publicly
2 accessible and full access will be granted to the public
3 record;
4 (ii) the record is determined to be publicly
5 accessible in part and limited access will be granted to
6 the public record; or
7 (iii) the record is determined to be inaccessible
8 and access will be denied.
9 (b) Full access.--
10 (1) Except as set forth in paragraph (2), if the agency
11 determines that the record is accessible in full, the agency
12 shall provide access to the public record for the person
13 making the request within 20 business days from the date of
14 the determination.
15 (2) If the agency determines that compliance with the
16 request is likely to take longer than ten business days, the
17 compliance officer shall notify the person making the request
18 of the expected delay in providing access. If the public
19 record or records requested are not provided within 20
20 business days from the date of notice, the request shall be
21 deemed denied unless the person making the request otherwise
22 agrees to allow the agency additional time for compliance.
23 (c) Limited access.--
24 (1) Except as set forth in this subsection, if the
25 agency determines that the record is publicly accessible in
26 part, the agency shall provide limited access to the record
27 by the person making the request within 20 business days of
28 making the determination.
29 (2) The agency may not deny access to the record if the
30 information which is not subject to access is able to be
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1 redacted.
2 (3) If the information which is not subject to access is
3 an integral part of the record and cannot be separated, the
4 agency shall redact from the record the information which is
5 not subject to access and shall grant access to the
6 information which is subject to access.
7 (4) A request subject to redaction under this subsection
8 shall be deemed denied only with respect to the information
9 redacted.
10 (5) If the agency determines that compliance with the
11 request is likely to take longer than 20 business days, the
12 compliance officer shall notify the person making the request
13 of the expected delay due to one of the following reasons:
14 (i) The request requires significant redaction.
15 (ii) Retrieval of a public record stored in a remote
16 location is required.
17 (iii) Timely response to the request for access
18 cannot otherwise be accomplished due to good faith and
19 specified staffing limitations.
20 (iv) Legal review is necessary to determine whether
21 the record is a public record subject to access.
22 (v) The person making a request refuses to pay the
23 applicable fee or fees associated with the request.
24 (vi) Exigent or unique circumstances as provided in
25 section 308(1) or (2) effectively prevent the request
26 from being granted in a timely fashion.
27 (6) If the access to information is not timely granted
28 due to a delay under paragraph (5), the request shall be
29 deemed denied, unless the person making the request otherwise
30 agrees to allow the agency additional time for compliance.
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1 (d) Denials.--
2 (1) If the agency determines that the record is not
3 accessible, the compliance officer shall timely notify the
4 person making the request in writing, which notice shall
5 include:
6 (i) A description of the record requested.
7 (ii) The specific reason or reasons for the denial,
8 including a citation of supporting legal authority. If
9 the denial is the result of a determination that the
10 public record requested is not a public record, the
11 specific reasons for the agency's determination that the
12 public record is not a public record shall be included.
13 (iii) The typed or printed name, title, business
14 address and business telephone number of the compliance
15 officer.
16 (iv) The date of the response.
17 (v) A description of the procedure under this act to
18 challenge the denial, including the address of the public
19 records office and the deadline for appealing the denial.
20 (2) An agency may not deny access to a public record due
21 to the intended use of the public record by the person making
22 the request unless otherwise provided by law.
23 (3) AN AGENCY MAY DENY ACCESS TO A PUBLIC RECORD DUE TO <--
24 THE FAILURE OF THE PERSON MAKING THE REQUEST FOR THE PUBLIC
25 RECORD TO PAY ANY FEES ASSOCIATED WITH THE REQUEST, WHICH ARE
26 ASSESSED BY THE AGENCY UNDER SECTION 309.
27 (4) AN AGENCY MAY DENY ACCESS TO A PUBLIC RECORD DUE TO
28 THE FAILURE OF THE PERSON MAKING THE REQUEST FOR THE PUBLIC
29 RECORD TO PAY ANY FEES ASSESSED UNDER SECTION 309, WHICH ARE
30 ASSOCIATED WITH PREVIOUS REQUESTS FOR PUBLIC RECORDS MADE TO
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1 THE SAME AGENCY.
2 (e) Expedited requests.--Notwithstanding the maximum times
3 for compliance specified under this section, if a public record
4 is requested pursuant to an upcoming meeting subject to 65
5 Pa.C.S. Ch. 7 (relating to open meetings), the agency shall
6 establish an expedited process for making the public record
7 available to the person making the request prior to the open
8 meeting, EXCEPT THAT THE EXPEDITED PROCESS SHALL NOT REQUIRE AN <--
9 AGENCY TO PROVIDE ACCESS TO A RECORD PRIOR TO AN OPEN MEETING IF
10 IT IS NOT PRACTICABLE FOR THE AGENCY TO DO SO. The agency may
11 require the person making the request to demonstrate the
12 immediate need for an expedited request.
13 (f) Administrative challenge.--A denial for access to
14 information made under this chapter by the Commonwealth or local
15 agency may be appealed by the person making the request to the
16 public records office in accordance with Chapter 5.
17 (G) TIME LIMITATION.--WHEN AN AGENCY RESPONDS TO AN OPEN <--
18 RECORDS REQUEST AND THE PERSON MAKING THE REQUEST DOES NOT
19 RETURN TO THE AGENCY WITHIN 60 DAYS, THE AGENCY SHALL SEND A
20 WRITTEN NOTICE TO THE PERSON SPECIFYING THAT THE REQUESTED
21 COPIES WILL BE HELD FOR AN ADDITIONAL 30 DAYS, WITHIN WHICH TIME
22 THE PERSON MAY RETURN TO THE AGENCY TO PICK UP THE RECORD.
23 THEREAFTER, THE AGENCY MAY DISPOSE OF ANY COPIES WHICH HAVE NOT
24 BEEN PICKED UP, AND RETAIN ANY FEES PAID TO DATE.
25 Section 306. Creation of a public record not required.
26 (1) An agency shall make every effort to accommodate a <--
27 request in the media requested.
28 (2) Except as set forth in paragraph (3), when
29 responding to a request for access, an agency shall not be
30 required to:
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1 (i) create a public record which does not currently
2 exist; or
3 (ii) compile, maintain, format or organize a public
4 record in a manner in which the agency does not currently
5 compile, maintain, format or organize the public record.
6 (3) Paragraph (2) does not apply to a public record
7 which:
8 (i) is stored electronically; and
9 (ii) can be compiled, maintained, formatted or
10 organized in a manner requested by a person making the
11 request without placing an unreasonable burden upon an
12 agency.
13 (A) MANNER OF REQUEST.--AN AGENCY SHALL MAKE EVERY EFFORT TO <--
14 ACCOMMODATE A REQUEST IN THE MEDIA REQUESTED.
15 (B) NONEXISTENT DOCUMENTATION.--EXCEPT AS SET FORTH IN
16 SUBSECTION (C), WHEN RESPONDING TO A REQUEST FOR ACCESS, AN
17 AGENCY SHALL NOT BE REQUIRED TO:
18 (1) CREATE A PUBLIC RECORD WHICH DOES NOT CURRENLTY
19 EXIST; OR
20 (2) COMPILE, MAINTAIN, FORMAT OR ORGANIZE A PUBLIC
21 RECORD IN A MANNER IN WHICH THE AGENCY DOES NOT CURRENTLY
22 COMPILE, MAINTAIN, FORMAT OR ORGANIZE THE PUBLIC RECORD.
23 (C) ELECTRONIC DOCUMENTATION.--SUBSECTION (B) DOES NOT APPLY
24 TO A PUBLIC RECORD WHICH:
25 (1) IS STORED ELECTRONICALLY; AND
26 (2) CAN BE COMPILED, MAINTAINED, FORMATTED OR ORGANIZED
27 IN A MANNER REQUESTED BY A PERSON MAKING THE REQUEST WITHOUT
28 PLACING AN UNREASONABLE BURDEN UPON AN AGENCY.
29 Section 307. Records deemed inaccessible.
30 (a) Personal and institutional security.--Except to the
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1 extent disclosure is otherwise required by law or by this
2 section, the following records or parts of records pertaining to
3 personal and institutional security shall be deemed not to be
4 public records and are exempt from the access requirements of
5 this chapter:
6 (1) A record the disclosure of which would be reasonably
7 likely to result in a substantial and demonstrable risk of
8 physical harm to an individual or endangering the life of an
9 individual.
10 (2) Any part of a record setting forth all or a portion
11 of an individual's Social Security number, birth date,
12 driver's license number, home address, home telephone number,
13 personal e-mail address, employee number, financial
14 information other than wage or salary information of an
15 agency employee, other personal identification number or
16 other personal information which, if disclosed, would be
17 reasonably likely to expose the individual to the risk of
18 identity theft. The exemption under this paragraph relating
19 to the disclosure of an individual's home address shall not
20 apply to a public official OR TO ANY FORMER ADDRESS OF A <--
21 DECEASED PERSON. THE EXEMPTION UNDER THIS PARAGRAPH RELATING
22 TO THE DISCLOSURE OF AN INDIVIDUAL'S BIRTH DATE SHALL NOT
23 APPLY TO THE BIRTH DATE OF A DECEASED PERSON.
24 (3) Any part of a record reflecting an individual's
25 medical, psychiatric or psychological history or disability
26 status, including evaluation, consultation, diagnosis or
27 treatment; results of drug tests; enrollment in a health care
28 program or program designed for participation by persons with
29 disabilities, including vocational rehabilitation, workers'
30 compensation and unemployment compensation; or related
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1 information which would disclose individually identifiable
2 health information.
3 (4) With respect to an agency employee and the
4 employee's personnel file, including:
5 (i) leave requests for reasons of illness, family
6 illness, civic service, vacation or personal time
7 requested or granted;
8 (ii) a letter of reference or recommendation
9 pertaining to the character or qualifications of an
10 identifiable individual, unless it relates to the
11 appointment of a person to fill a vacancy in an elected
12 office or a vacancy in an appointed office requiring
13 Senate confirmation;
14 (iii) a performance rating or review;
15 (iv) individually identifiable records relating to
16 an employee other than the name, position, salary, actual
17 compensation, employment contract, employment related <--
18 contract or agreement and length of service of an agency
19 employee;
20 (v) workplace support services program information;
21 (vi) written criticisms of the employee of which the
22 employee is not aware;
23 (vii) grievance materials, including documents
24 related to discrimination or sexual harassment; and
25 (viii) information regarding discipline, demotion or <--
26 discharge, except that a final result of a disciplinary
27 proceeding shall be a public record.
28 (VIII) INFORMATION REGARDING THE DETAILS OF AN <--
29 INVESTIGATION OF OR REASONS FOR DISCIPLINE, DEMOTION OR
30 DISCHARGE, EXCEPT THAT WHERE ACTION MUST BE TAKEN BY THE
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1 AGENCY AT AN OPEN MEETING TO EFFECTUATE DISCIPLINE,
2 DEMOTION OR DISCHARGE, THE NAME OF THE EMPLOYEE AND THE
3 FINAL ACTION TAKEN SHALL BE A PUBLIC RECORD.
4 (5) A record or information:
5 (i) identifying an individual who applies for or
6 receives social services; or
7 (ii) describing or relating to:
8 (A) the type of social services received by an
9 individual;
10 (B) an application to receive social services,
11 including a record or information related to an
12 agency decision to grant, deny, reduce or restrict
13 benefits, including a quasi-judicial decision of the
14 agency and the identity of caregivers or others who
15 provide services to the individual; or
16 (C) eligibility to receive social benefits,
17 including an individual's income, assets, physical or
18 mental health, age, disability, family circumstances
19 and any sort of abuse.
20 (6) A record maintained by an agency in connection with
21 homeland security, national defense, the military, law
22 enforcement or another public safety activity based on a
23 finding by the agency head or designated deputy that
24 disclosure would be reasonably likely to jeopardize public
25 safety or preparedness. This paragraph includes public
26 records the disclosure of which would have a reasonable
27 likelihood of threatening the public safety by exposing a
28 vulnerability in preventing, protecting against, mitigating
29 or responding to a terrorist act; a criticality list
30 resulting from consequence and vulnerability assessment;
20070H0443B2800 - 20 -
1 antiterrorism measures and plans; counterterrorism measures
2 and plans; security and response needs assessment; and
3 infrastructure records that expose vulnerability.
4 (7) Military records maintained by the Pennsylvania
5 National Guard or Pennsylvania Guard that have been
6 designated as classified by the appropriate Federal or State
7 military authority.
8 (8) Any part of a record the disclosure of which creates
9 a reasonable likelihood of threatening public safety or the
10 physical security of a building, resource, infrastructure
11 facility or information storage system. The following shall
12 apply:
13 (i) Except as set forth under subparagraph (ii),
14 this paragraph includes:
15 (A) documents, records or data relating to
16 computer hardware, source files, software and system
17 networks that could jeopardize computer security
18 including, but not limited to, exposing a
19 vulnerability in preventing, protecting against,
20 mitigating or responding to a terrorist act;
21 (B) lists of infrastructure, key resources and
22 significant special events, including those defined
23 by the Federal Government in the National
24 Infrastructure Protection Plan, which are deemed
25 critical due to their nature and which result from
26 risk analysis, threat assessments, consequences
27 assessments, vulnerability assessments, antiterrorism
28 protective measures and plans, counter-terrorism
29 measures and plans and security and response needs
30 assessments; and
20070H0443B2800 - 21 -
1 (C) building plans or infrastructure public
2 records that expose or create vulnerability through
3 disclosure of the location, configuration or security
4 of critical systems, including public utility
5 critical systems, such as information technology, and
6 communication, electrical, structural, fire
7 suppression, ventilation, water, wastewater, sewage
8 and gas systems.
9 (ii) Notwithstanding subparagraph (i), the following
10 are public records and shall be publicly accessible:
11 (A) Simple floor plans or plans showing spatial
12 arrangements of buildings.
13 (B) Budgetary information concerning the
14 authorization of public funds to implement public
15 security plans and arrangements or for the
16 construction, renovation or repair of public
17 buildings and infrastructure facilities.
18 (iii) If an agency denies an individual access to a
19 record listed under subparagraph (ii), it must provide a
20 general description of the record being withheld and how
21 disclosure of the record would endanger the life or
22 safety of any person or create a substantial likelihood
23 of endangering public safety or the physical security of
24 a building, infrastructure facility or information
25 storage system.
26 (9) A record identifying the location of an
27 archeological or geophysical site or an endangered or
28 threatened plant or animal species.
29 (10) RECORDS OR PARTS OF RECORDS PERTAINING TO AUDIO <--
30 RECORDINGS, TELEPHONE OR RADIO TRANSMISSIONS RECEIVED BY
20070H0443B2800 - 22 -
1 EMERGENCY DISPATCH PERSONNEL.
2 (b) Investigations.--Except to the extent disclosure is
3 otherwise required by law or this section, the following records
4 or parts of records pertaining to investigations shall be deemed
5 not to be public records and are exempt from the access
6 requirements of this chapter:
7 (1) As follows:
8 (i) Except as set forth under subparagraph (ii), a
9 record created or received by any agency in the process
10 of or resulting in an investigation, including:
11 (A) Investigative materials and complaints made
12 to the agency.
13 (B) Criminal investigatory reports and victim
14 records.
15 (C) A record that includes the identity of a
16 confidential source.
17 (D) A record that includes information made
18 confidential by law or court order.
19 (E) A record regarding a juvenile, except as
20 specifically permitted by law.
21 (F) A record which, if disclosed, would:
22 (I) reveal the institution, progress or
23 result of an investigation by an agency;
24 (II) deprive another person of a right to a
25 fair trial or an impartial adjudication;
26 (III) constitute an unwarranted invasion of
27 personal privacy;
28 (IV) disclose an investigative technique or
29 procedure;
30 (V) prejudice an investigation;
20070H0443B2800 - 23 -
1 (VI) hinder an agency's ability to secure an
2 arrest, prosecution or administrative, civil or
3 criminal sanction; or
4 (VII) endanger the life or physical safety
5 of an individual.
6 (G) Work papers underlying an audit.
7 (H) Audio tapes or transcripts of telephone
8 calls or radio transmissions received by emergency
9 dispatch personnel.
10 (I) VIDEO RECORDS PRODUCED BY OR USED IN AN <--
11 INVESTIGATION PRIOR TO THE CONCLUSION OF A CRIMINAL
12 TRIAL.
13 (ii) Notwithstanding subparagraph (i), the following
14 are public records and shall be publicly accessible, but
15 only if their release does not substantially compromise
16 an investigation as determined by the investigator:
17 (A) Initial incident reports, police blotters
18 and similar records that summarize the date, time,
19 place, purpose and cause of services performed by law
20 enforcement agencies or investigative agencies.
21 (B) The date, time, location and nature of a
22 reported crime.
23 (C) Traffic accident reports and compilations of
24 data derived from the reports or compilations.
25 (2) Any part of an autopsy record or other official
26 record of the coroner or medical examiner that is an
27 audiotape of a postmortem examination or autopsy or a copy,
28 reproduction or facsimile of AN AUTOPSY REPORT, a photograph, <--
29 negative or print, including a photograph or videotape of the
30 body or any portion of the body of a deceased person taken by
20070H0443B2800 - 24 -
1 or for THE CORONER OR the medical examiner at the scene of <--
2 death or in the course of a postmortem examination or autopsy
3 made by or caused to be made by the coroner or medical
4 examiner.
5 (c) Work product.--Except to the extent disclosure is
6 otherwise required by law or this section, the following records
7 or parts of records pertaining to personal work product,
8 academic work product or institutional process to which an
9 individual has a reasonable expectation of privacy shall be
10 deemed not to be public records and are exempt from the access
11 requirements of this chapter:
12 (1) Correspondence and related records by and among a
13 public official, a public official's staff and an agency.
14 (2) Correspondence and related records between a public
15 official, a public official's staff or an agency and a
16 private individual which contains information that the
17 private individual is not required by law to transmit and
18 which would constitute a clearly unwarranted invasion of
19 personal privacy if disclosed.
20 (3) Notes and working papers personally prepared by a
21 public official or employee of an agency and telephone
22 messaging slips, routing slips and other materials made by or
23 for a public official's or an agency employee's personal use
24 that do not have an official purpose.
25 (4) Electronic mail, if that the electronic mail does
26 not contain a detailed discussion of the spending of public
27 money.
28 (5) A record that constitutes intellectual property,
29 which is submitted to an agency by a commercial enterprise
30 and which, if disclosed, would cause substantial injury to
20070H0443B2800 - 25 -
1 the competitive position of the subject enterprise including
2 any document marked as confidential with respect to the
3 intellectual property. The commercial enterprise submitting
4 the information must provide a written claim that the
5 information contains intellectual property regarding the
6 enterprise and a concise statement of the reasons supporting
7 the claim. The claim shall be construed as a public record
8 for purposes of this act.
9 (6) Unpublished lecture notes, unpublished manuscripts,
10 unpublished articles, creative works in progress and
11 scholarly correspondence, any of which have been developed,
12 discovered or received by or on behalf of:
13 (i) any State related institution, community college
14 or institution within the State System of Higher
15 Education; or
16 (ii) the faculty, the staff, an employee, a guest
17 speaker or a student of any State-related institution,
18 community college or institution within the State System
19 of Higher Education.
20 (7) Examination questions, scoring keys or answers in an
21 academic institution, which are requested prior to the final
22 administration of an examination or which might be used in a
23 subsequent examination.
24 (8) A record which relates to research or research and
25 development activities undertaken by an agency in conjunction
26 with a nongovernmental entity, except that the contract
27 between the agency and the nongovernmental entity, EXCLUDING <--
28 PARTS OF THE CONTRACT THAT CONTAIN OR DESCRIBE CONFIDENTIAL
29 PROPRIERTARY INFORMATION OR INFORMATION THAT CONSTITUTES
30 INTELLECTUAL PROPERTY, shall be a public record.
20070H0443B2800 - 26 -
1 (9) Library and archive circulation and order records
2 pertaining to identifiable individuals or groups of
3 individuals.
4 (10) Library archived and museum materials contributed
5 by private persons, to the extent of any limitations imposed
6 by the donor as conditions of the contribution.
7 (11) Drafts of bills, resolutions or amendments prepared
8 by a public official or public employee acting in a
9 legislative capacity until the drafts have been numbered and
10 filed with the Secretary of the Senate or the Chief Clerk of
11 the House of Representatives or, in the case of a political
12 subdivision, until the drafts have been presented to a number
13 of members of the governing body of the political subdivision
14 equal to or greater than a quorum.
15 (12) Requests from public officials or agency employees
16 to a legislative agency or the staff of a legislative agency
17 staff. This paragraph shall not apply to reports produced by
18 legislative agencies as mandated by statute or directed by
19 resolution.
20 (13) A record pertaining to strategy and negotiations
21 with respect to claims, threatened litigation or litigation.
22 (14) A record pertaining to strategy and negotiations
23 with respect to labor relations or collective bargaining. Any
24 final or executed contract or agreement between the parties
25 other than an arbitration award shall be a public record and
26 shall be publicly accessible.
27 (15) A record, including, but not limited to, a budget
28 recommendation, legislative proposal or proposed policy
29 statement of a public official or public official's staff
30 which would reveal a contemplated policy or course of action
20070H0443B2800 - 27 -
1 before the recommendation, legislative proposal or policy
2 statement is publicly proposed.
3 (16) An audit, including underlying work papers
4 developed in the course of the audit, prepared by or for an
5 agency of its own internal programs or procedures for the
6 purpose of identifying and improving upon deficiencies in the
7 delivery of services to the public under the programs or
8 procedures.
9 (17) A record that reflects internal, pre-decisional
10 deliberations by and between public officials or agency
11 employees.
12 (18) Minutes of executive sessions and any record of
13 discussions held in executive session, except where
14 authorized and released by the agency or the release of which
15 is ordered by a court.
16 (19) Documents or records prepared exclusively for any
17 meeting not subject to 65 Pa.C.S. Ch. 7 (relating to open
18 meetings).
19 (20) State employment or licensing examination
20 questions, scoring keys or answers that are requested prior
21 to the final administration of an examination or which might
22 be used in a subsequent examination.
23 (21) Draft minutes of any meeting of an agency.
24 (22) TELEPHONE RECORDS THAT IDENTIFY THE CALLER OR THE <--
25 PERSON CALLED.
26 (d) General property.--Except to the extent disclosure is
27 otherwise required by law or this section, the following record
28 or parts of records pertaining to real estate and tangible
29 property within the custody and control of the government
30 generally shall be deemed not to be public records and are
20070H0443B2800 - 28 -
1 exempt from the access requirements of this chapter:
2 (1) The following information regarding donations to
3 agencies:
4 (i) The identity of an individual who lawfully makes
5 a donation, if anonymity of the donor is a condition of
6 the donation, unless the donation is intended for or
7 restricted to providing remuneration or personal tangible
8 benefit to a named public official or employee of an
9 agency or is required to be reported by law.
10 (ii) A list of potential donors compiled by an
11 agency and used in pursuit of donations.
12 (2) A valuable or rare collection of books or documents
13 obtained by gift, grant, bequest or devise upon the condition
14 that public access to the collection be limited.
15 (3) The contents of real estate appraisals, engineering
16 or feasibility estimates, environmental reviews, audits or
17 evaluations made for or by an agency relative to the leasing,
18 acquiring or disposing of real property. This exemption shall
19 cease to apply to any record once the real property has been
20 leased, acquired or disposed of.
21 (4) The contents of real estate appraisals, engineering
22 or feasibility estimates, environmental reviews, audits or
23 evaluations made for or by an agency relative to prospective
24 public supply or a construction project. This exemption shall
25 cease to apply to any record once the decision is made to
26 proceed with the public supply or construction project.
27 (5) A proposal pertaining to agency procurement or
28 disposal of supplies, services or construction until award of
29 the contract; a proposal pertaining to agency leasing,
30 acquisition or disposition of real property until award of
20070H0443B2800 - 29 -
1 the contract; financial information of a bidder or offeror
2 requested in an invitation for bids or request for proposals
3 to demonstrate the bidder's or offeror's economic capability;
4 a commercial or financial record given in confidence
5 containing information not otherwise available to the public;
6 however, the identity of members of agency proposal
7 evaluation committees established under 62 Pa.C.S. § 513
8 (relating to competitive sealed proposals) shall become a
9 public record after the contract is awarded or upon the
10 rejection of all proposals.
11 (6) A record relating to a communication between an
12 agency and its insurance carrier, administrative service
13 organization or risk management office.
14 Section 308. Agency discretion.
15 The following shall apply: <--
16 (1) An agency may deny a request for access due to fire,
17 flood, terrorist act or other disaster, as determined by the
18 (A) NATURAL OR MANMADE EMERGENCY.--AN AGENCY MAY DENY A <--
19 REQUEST FOR ACCESS DUE TO FIRE, FLOOD, TERRORIST ACT OR OTHER
20 DISASTER, AS DETERMINED BY THE governing body or chief executive
21 officer of the agency. In the event of a denial under this
22 paragraph, the agency shall comply with the request when it
23 determines that the cause for the denial no longer exists.
24 (2) An agency may deny a request for access to <--
25 historical, ancient or rare records, archives, manuscripts or
26 (B) FRAGILE DOCUMENTS.--AN AGENCY MAY DENY A REQUEST FOR <--
27 ACCESS TO HISTORICAL, ANCIENT OR RARE RECORDS, ARCHIVES,
28 MANUSCRIPTS OR documents when access may cause physical damage
29 or irreparable harm to the record, as determined by the
30 governing body or chief executive officer of the agency. To the
20070H0443B2800 - 30 -
1 extent possible, the contents of any such record requested shall
2 be made accessible to a person making a request even when the
3 record is physically unavailable.
4 (3) An agency may exercise its discretion to make any <--
5 record enumerated under section 307 accessible for inspection
6 (C) ADDITIONAL DISCRETION.--AN AGENCY MAY EXERCISE ITS <--
7 DISCRETION TO MAKY ANY RECORD ENUMERATED UNDER SECTION 307
8 ACCESSIBLE FOR INSPECTION and copying only if:
9 (i) disclosure of the record is not expressly <--
10 prohibited by Federal or State law or judicial order; and
11 (ii) the governing body or the chief executive
12 officer of a Commonwealth or local agency determines that
13 (1) DISCLOSURE OF THE RECORD IS NOT EXPRESSLY PROHIBITED <--
14 BY FEDERAL OR STATE LAW OR JUDICIAL ORDER; AND
15 (2) THE GOVERNING BODY OR THE CHIEF EXECUTIVE OFFICER OF
16 A COMMONWEALTH OR LOCAL AGENCY DETERMINES THAT the public
17 interest favoring access outweighs the individual or agency
18 interest favoring restriction of access.
19 (4) In the event the agency exercises its discretion to <--
20 make a record available under this section, then prior to the
21 (D) THIRD PARTIES OF INTEREST.--IN THE EVENT THE AGENCY <--
22 EXERCISES ITS DISCRETION TO MAKE A RECORD AVAILABLE UNDER THIS
23 SECTION, THEN PRIOR TO THE release of any information which
24 constitutes confidential or proprietary information related to
25 intellectual property of a third party, the agency shall give
26 notice to the third party that provided the document to the
27 agency and allow the party five business days to object to the
28 disclosure of the information. The agency shall, within five
29 business days after receiving the objection, inform the third
30 party whether it plans to make the records available over the
20070H0443B2800 - 31 -
1 party's objection.
2 Section 309. Fee limitations.
3 (a) Fees.--Unless otherwise provided by law or a regulation
4 of the public records office or unless waived under this
5 section, an agency may charge a reasonable fee for the
6 following:
7 (1) For mailing a public record upon request of the
8 individual which shall not exceed the actual cost of mailing.
9 (2) For copying a public record, but any fee for
10 duplication by photocopying, printing from electronic media
11 or microfilm, copying onto electronic media, transmission by
12 facsimile or other electronic means and other means of
13 duplication must be reasonable and based on prevailing fees
14 for comparable duplication services provided by local copying
15 services.
16 (3) For compiling or assembling public records, but any
17 fee for records which must be compiled or assembled from
18 various sources or formats may be charged only to cover the
19 actual cost of compiling or assembling the requests
20 requested.
21 (4) A reasonable fee for official certification of
22 copies if the certification is made by the person making the
23 request for the purpose of certifying the public record.
24 (5) If a public record is only maintained electronically
25 or in other nonpaper media, duplication fees shall be limited
26 to the lesser of the fee for duplication on paper or the fee
27 for duplication in the native media as provided under
28 paragraph (2) unless the person making the request
29 specifically requests that the public record be duplicated in
30 the more expensive medium.
20070H0443B2800 - 32 -
1 (6) If an agency offers enhanced electronic access to
2 public records in addition to making the public records
3 accessible for inspection and duplication by a person making
4 the request as required by this act, the agency may establish
5 user fees specifically for the provisions of the enhanced
6 electronic access, but only to the extent that the enhanced
7 electronic access is in addition to making the public records
8 accessible for inspection and duplication by a person making
9 a request as required by this act. The user fees for enhanced
10 electronic access may be a flat rate, a subscription fee for
11 a period of time, a per-transaction fee, a fee based on the
12 cumulative time of system access or any other reasonable
13 method and any combination thereof. The user fees for
14 enhanced electronic access must be reasonable and may not be
15 established with the intent or effect of excluding persons
16 from access to public records or duplicates thereof or of
17 creating profit for the agency.
18 (b) Waiver of fees.--An agency may waive fees for
19 duplication of a public record, including if:
20 (1) the request results in a document that does not
21 exceed ten pages;
22 (2) the person making the request duplicates the public
23 record, if the record remains in the custody and control or
24 in the physical presence of the agency or a representative
25 thereof and does not disrupt or unnecessarily infringe upon
26 the normal working process of the agency;
27 (3) the person making the request cannot afford to pay
28 the fee and attests or certifies in writing that he or she
29 cannot afford to pay the fee; or
30 (4) the agency deems it is in the public interest to do
20070H0443B2800 - 33 -
1 so.
2 (c) Limitation.--No fee may be imposed for an agency's
3 review of a record to determine whether the record is a public
4 record subject to access in accordance with this act.
5 (d) Prepayment.--Prior to granting a request for access in
6 accordance with this act, an agency may require a person making
7 a request to prepay a portion of the fees authorized under this
8 section based on an estimate required to fulfill the request
9 when such fees are expected to exceed $100. THE AGENCY MAY <--
10 REQUIRE A CERTIFIED CHECK, MONEY ORDER OR OTHER FORM OF VERIFIED
11 PAYMENT OF FUNDS WHEN REQUIRING OPEN RECORDS REQUEST FEES TO BE
12 PREPAID.
13 CHAPTER 5
14 PUBLIC RECORDS OFFICE
15 Section 501. Pennsylvania Public Records Office.
16 (a) Establishment.--The Pennsylvania Public Records Office
17 is established within the State Ethics Commission. The Governor, <--
18 WHICH shall appoint an executive director of the public records
19 office who shall hire other staff as necessary to operate the
20 office.
21 (b) Powers and duties.--The director of the public records
22 office has the following powers and duties:
23 (1) To receive and respond to requests for information
24 from persons who have been denied access to public records by
25 a Commonwealth agency or a local agency under this act.
26 (2) To receive and respond to requests for information
27 from a Commonwealth agency or local agency regarding
28 compliance with this act.
29 (3) To order a Commonwealth or local agency to comply
30 with provisions of this act upon finding that a request for
20070H0443B2800 - 34 -
1 access to a public record was properly made.
2 (4) To issue advisory opinions on compliance with this
3 act.
4 (5) To request information from Commonwealth agencies
5 and local agencies in order to make compliance determinations
6 under this act. All information supplied by a Commonwealth
7 agency or local agency which is relevant to a request shall
8 be subject to confidentiality under subsection (c).
9 (6) To guide and oversee the compliance with this act by
10 all Commonwealth and local agencies.
11 (7) To provide a list to any requesting agency or
12 individual of Federal and State laws that exempt certain
13 types of records from disclosure.
14 (8) To make its advisory opinions and written decisions
15 available for review.
16 (9) To conduct training for public officials, public
17 employees and third parties relating to the Commonwealth's
18 access laws with assistance from the Department of Community
19 and Economic Development's Center for Local Government.
20 (10) To issue a report semi-annually to the General
21 Assembly and to the Governor, which report shall include, but
22 not be limited to:
23 (i) The number of requests to review denials from
24 persons making public record requests.
25 (ii) The number of public record requests which were
26 determined, upon review of the access office, to have
27 been improperly denied.
28 (iii) The number of requests made by agencies
29 seeking clarification on compliance with this act.
30 (iv) The number of orders issued by the public
20070H0443B2800 - 35 -
1 records office directing an agency to comply with this
2 act.
3 (v) The number of advisory opinions issued by the
4 access office.
5 (vi) The number of requests for the list of Federal
6 and State exemptions to public access of records.
7 (vii) The number of training sessions conducted for
8 public officials, public employees and third parties
9 relating to public access of records, including the
10 number of persons attending such training sessions.
11 (11) TO MAKE AVAILABLE IN ELECTRONIC FORM TO PERSONS <--
12 MAKING REQUESTS FOR PUBLIC RECORDS, EXAMPLES OF PREVIOUS
13 REQUESTS FOR PUBLIC RECORDS BY OTHER PERSONS AND THE
14 DOCUMENTS TO WHICH THE OTHER PERSONS WERE GIVEN ACCESS. IN
15 PERFORMING THIS DUTY, THE OFFICE MAY NOT REVEAL ANY
16 INFORMATION RELATING TO THE IDENTITY OF THE PERSONS WHO MADE
17 THE PREVIOUS REQUESTS.
18 (11) (12) To promulgate any regulations necessary to <--
19 administer this act.
20 (c) Confidentiality.--All information requested by the
21 public records office from an agency in order to make a
22 determination of whether an agency is complying with this act
23 shall remain confidential and shall not be subject to public
24 access.
25 (d) Fees.--The following shall apply:
26 (1) The public records office may impose a reasonable
27 filing fee for an appeal made under section 502, and any fees
28 collected under this subsection shall be deposited in a
29 restricted account in the General Fund which is established
30 for the public records office. The money from this account
20070H0443B2800 - 36 -
1 shall be appropriated as necessary for the operation of the
2 public records office.
3 (2) The public records office may waive the filing fee
4 if the person requesting access to the public record is
5 unable to afford the fee based on guidelines established by
6 the access office.
7 Section 502. Administrative appeals from Commonwealth agencies
8 and local agencies.
9 (a) General rule.--Notwithstanding any other provision of
10 law, a party aggrieved by a denial or deemed denial of access to
11 a public record by a Commonwealth agency or a local agency may,
12 within 30 days after a request is denied or deemed denied,
13 appeal to the public records office by forwarding to the office
14 a copy of the request and the written explanation for the
15 denial, if any, provided by the Commonwealth agency or local
16 agency, and requesting a review of the matter.
17 (b) Ruling.--
18 (1) Within 30 business days after receipt of the appeal,
19 the public records office shall rule either that the denial
20 or deemed denial of access to the record by the Commonwealth
21 agency or local agency is upheld or that the decision to deny
22 access to the record was improper, and the Commonwealth
23 agency or local agency must provide access to the record. The
24 public records office may hold a private hearing on the
25 matter and may review the record.
26 (2) The 30-business-day period may be extended by
27 agreement of the parties. If the parties do not agree to an
28 extension or the public records office does not issue a
29 ruling within 30 business days after the date of the appeal,
30 the denial from the Commonwealth agency or local agency shall
20070H0443B2800 - 37 -
1 be deemed affirmed.
2 (c) Explanation.--If the public records office upholds the
3 decision of the Commonwealth agency or local agency to deny
4 access to the public record, the office shall fully explain in
5 writing to the person requesting the public record the reason
6 for the denial. If the public records office rules that the
7 Commonwealth agency or local agency shall provide access to the
8 public record, it shall order the Commonwealth agency or local
9 agency to provide the individual with access to the record and
10 shall fully explain in writing the reason access must be
11 provided.
12 (d) Other appeals.--Costs or attorney fees shall not be
13 awarded under this section for administrative appeal to the
14 public records office under this section.
15 Section 503. Judicial review.
16 (a) Judicial appeal.--A person aggrieved by a decision of
17 the public records office or a legislative agency and who has a
18 direct interest in the record that is the subject of the
19 decision may, within 30 days after receipt of actual knowledge
20 of the issuance of the office's order and opinion, appeal the
21 decision as follows:
22 (1) With respect to the actions of a Commonwealth agency
23 or a legislative agency, an aggrieved person may file a
24 petition for review or other document as might be required by
25 rule of court with the Commonwealth Court.
26 (2) With respect to the actions of a non-Commonwealth
27 agency, an aggrieved person may file a petition for review or
28 other document as might be required by rule of court with the
29 court of common pleas for the county where the non-
30 Commonwealth agency's office or facility is located OR BRING <--
20070H0443B2800 - 38 -
1 AN ACTION IN THE LOCAL MAGISTERIAL DISTRICT.
2 (b) Notice.--All parties in interest shall be served notice
3 of actions commenced in accordance with subsection (a) and shall
4 have an opportunity to respond in accordance with the
5 established rules of the office and applicable court rules, as
6 appropriate.
7 (c) Record on appeal.--The record before the court under
8 subsection (a) shall consist of the request, the record before
9 the office, including the hearing transcript, if any, and the
10 office's order and opinion. The court, on its own motion, may
11 augment the record as it sees fit.
12 (d) Scope of review.--The court shall hear an appeal with
13 respect to a decision of the office without a jury on the record
14 certified by the office. After hearing, the court shall affirm
15 the decision of the office unless it finds that the decision is
16 in violation of the constitutional rights of an aggrieved party,
17 is not in accordance with law or that any finding of fact made
18 by the office necessary to support the decision is not supported
19 by substantial evidence. If the decision is not affirmed, the
20 court may enter any order authorized by 42 Pa.C.S. § 706
21 (relating to disposition of appeals).
22 (e) Effect of notice of appeal.--The filing of a notice of
23 appeal under subsection (a) shall have the effect of staying
24 access to the records requested if such access has not yet been
25 made available. If access to the records requested has already
26 been made available to the requester at the time the notice of
27 appeal has been filed and if a copy of the notice has been
28 provided to the requester, the requester shall be required to
29 keep the contents of the records confidential until the appeal
30 has been finally disposed of.
20070H0443B2800 - 39 -
1 (f) Training.--Any court may order agency officials and
2 employees to attend mandatory training sessions conducted by the
3 office, which shall include testing on compliance with the law.
4 (g) Civil penalty.--If the court finds that an agency or
5 public official does not promptly comply with a court order
6 under this act, the agency shall pay a civil penalty of not more
7 than $300 per day until the public records are provided. The
8 civil penalty shall be paid into the restricted account
9 established in the General Fund under section 501(d).
10 (h) Procedures.--The provisions of 2 Pa.C.S. (relating to
11 administrative law and procedure) shall not apply to this
12 section. Within 180 days following the effective date of this
13 subsection, the office shall adopt procedures for appeals to the
14 office under this section and shall forward them to the
15 Legislative Reference Bureau for publication as a notice in the
16 Pennsylvania Bulletin.
17 Section 504. Penalties, court costs and attorney fees.
18 (a) Grounds for damages PENALTIES AND LEGAL FEES.-- <--
19 (1) If a court finds that an agency intentionally
20 violated any provision of this chapter, acted in bad faith or
21 relied upon an unreasonable interpretation of the law in not
22 providing access to a public record the court may order the
23 agency to pay a civil penalty of not more than $500 to be
24 paid into the restricted account established in the General
25 Fund under section 501(d)(1).
26 (2) A decision by the office affirming an agency's
27 denial or deemed denial shall constitute prima facie evidence
28 that the agency did not act in bad faith or in reliance upon
29 an unreasonable interpretation of the law.
30 (b) Attorney fees and court costs.--
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1 (1) In an action seeking enforcement of rights under <--
2 this act, the party prevailing in obtaining information or
3 records shall be awarded reasonable attorney fees and court
4 costs by the court.
5 (1) IF A COURT REVERSES AN AGENCY'S FINAL DETERMINATION, <--
6 THE COURT MAY AWARD REASONABLE ATTORNEY FEES AND COSTS OF
7 LITIGATION OR AN APPROPRIATE PORTION THEREOF TO A REQUESTER
8 IF THE COURT FINDS EITHER OF THE FOLLOWING:
9 (I) THE AGENCY WILLFULLY OR WITH WANTON DISREGARD
10 DEPRIVED THE REQUESTER OF ACCESS TO A PUBLIC RECORD
11 SUBJECT TO ACCESS UNDER THE PROVISIONS OF THIS ACT.
12 (II) THE EXEMPTIONS, EXCLUSIONS OR DEFENSES ASSERTED
13 BY THE AGENCY IN ITS FINAL DETERMINATION WERE NOT BASED
14 ON A REASONABLE INTERPRETATION OF LAW.
15 (2) If the court finds that an appeal brought by any
16 party was frivolous, the court may award the prevailing party
17 reasonable attorney fees and court costs or an appropriate
18 portion of such fees and costs.
19 (c) Other appeals.--Costs or attorney fees shall not be
20 awarded under this section with respect to administrative
21 appeals to the office under section 503.
22 Section 505. Immunity.
23 (a) General rule.--Except as may be provided in section
24 504(a)(1) and in other statutes governing the release of
25 records, no agency, public official or agency employee shall be
26 liable for civil or criminal damages or penalties resulting from
27 compliance or failure to comply with this chapter.
28 (b) Schedules.--No agency, public official or agency
29 employee shall be liable for civil or criminal damages or
30 penalties under this chapter for complying with any written
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1 record retention and disposition schedule.
2 CHAPTER 7
3 ADMINISTRATION AND ENFORCEMENT
4 Section 701. Policies and regulations.
5 (a) Public records office.--The public records office shall
6 establish written policies prior to promulgating regulations
7 necessary to implement this act for all Commonwealth and local
8 agencies subject to this act.
9 (b) Agency policies.--
10 (1) Prior to the promulgation of regulations by the
11 public records office, an agency may adopt policies to handle
12 open records requests that are not inconsistent with this
13 act. Following the promulgation of regulations by the public
14 records office, agencies shall revise open records policies
15 that are inconsistent with the regulations.
16 (2) Any agency policy adopted under this section shall,
17 at a minimum:
18 (i) Identify the principal office of the agency and
19 its regular office hours.
20 (ii) List the name and business address of the
21 agency's compliance officer.
22 (iii) Include a schedule of fees adopted by the
23 agency as permitted by this act.
24 (iv) Specify the procedures to be followed in
25 requesting records.
26 (c) Prohibition.--A policy or regulation may not include any
27 of the following:
28 (1) A limitation on the number of public records which
29 may be requested or made available for inspection or
30 duplication.
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1 (2) A requirement to disclose the purpose or motive in
2 requesting access to records which are public records.
3 (d) Posting.--Any public records policy developed by an
4 agency shall be conspicuously posted at the agency's principal
5 office and may be made available by electronic means.
6 Section 702. Confidentiality agreements.
7 If an agency received a request for a record that is subject
8 to a confidentiality agreement executed before the effective
9 date of this section, the law in effect at the time the
10 agreement was executed, including judicial interpretation of the
11 law, shall govern access to the record, unless all parties to
12 the confidentiality agreement agree in writing that access or
13 nonaccess to the record shall be governed by this act.
14 Section 703. Practice and procedure.
15 The provisions of 2 Pa.C.S. (relating to administrative law
16 and procedure) shall not apply to this act.
17 Section 704. Access to personal record.
18 Any person shall have access to any public record relating to
19 the person, or in which the person is mentioned by name, upon
20 presentation of appropriate identification, subject to the
21 provisions of this act. Access under this section shall include
22 limited access under section 305 where appropriate.
23 Section 705. Prohibition against destruction or damage of <--
24 records.
25 (a) Prohibition.--Agency records shall not be removed,
26 destroyed, mutilated, transferred or otherwise damaged or
27 disposed of, in whole or in part, except as provided by law
28 under any applicable records retention schedule or under the
29 rules adopted by the public records office. Records shall be
30 delivered by outgoing officials and employees to their
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1 successors and shall not be otherwise removed, transferred or
2 destroyed unlawfully.
3 (b) Civil action.--Any person who is aggrieved by the
4 removal, destruction, mutilation or transfer of or by other
5 damage to or disposition of a record in violation of subsection
6 (a), or by threat of removal, destruction, mutilation, transfer
7 or other damage to or disposition of a record may commence
8 either or both of the following in the court of common pleas of
9 the county in which subsection (a) allegedly was violated or is
10 threatened to be violated:
11 (1) A civil action for injunctive relief to compel
12 compliance with subsection (a) and to obtain an award of the
13 reasonable attorney fees incurred by the person in the civil
14 action.
15 (2) A civil action to recover a forfeiture in the amount
16 of $1,000 for each violation and to obtain an award of the
17 reasonable attorney fees incurred by the person in the civil
18 action.
19 Section 706. Replevin of public records unlawfully removed.
20 Any record which has been unlawfully transferred or removed
21 in violation of this act or otherwise transferred or removed
22 unlawfully is subject to replevin by the Attorney General upon
23 request of the public records office. The record shall be
24 returned to the agency of origin and safeguards shall be
25 established to prevent further recurrence of unlawful transfer
26 or removal.
27 SECTION 705. (RESERVED). <--
28 SECTION 706. (RESERVED).
29 Section 707. Authority not restricted.
30 The provisions of this act shall not impair or restrict the
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1 authority given by other statutes over the creation of records,
2 systems, forms, procedures or the control over purchases of
3 equipment by agencies.
4 Section 708. Internet.
5 All agencies shall make all budgets, expense accounts, grants <--
6 and other records related to the expenditure of public funds
7 except for checks, as the term is defined in 13 Pa.C.S. § 3104
8 (relating to negotiable instrument), available on the Internet
9 without a fee or charge.
10 (A) AVAILABILITY.--EXCEPT AS PROVIDED IN SUBSECTION (B), <--
11 EACH AGENCY SHALL MAKE ALL OF THE AGENCY'S BUDGETS, EXPENSE
12 ACCOUNTS AND GRANTS AND ALL OTHER AGENCY RECORDS RELATED TO THE
13 EXPENDITURE OF PUBLIC FUNDS EXCEPT FOR CHECKS, AS THE TERM IS
14 DEFINED UNDER 13 PA.C.S. § 3104 (RELATING TO NEGOTIABLE
15 INSTRUMENT), AVAILABLE ON THE INTERNET WITHOUT FEE OR CHARGE.
16 (B) INTERNET SITE.--AN AGENCY THAT DOES NOT HAVE A WORLD
17 WIDE WEB SITE OR OTHER INTERNET SITE ON THE EFFECTIVE DATE OF
18 THIS SECTION SHALL NOT BE REQUIRED TO COMPLY WITH SUBSECTION (A)
19 UNTIL THE AGENCY HAS CREATED A WORLD WIDE WEB SITE OR OTHER
20 INTERNET SITE.
21 Section 709. Transcripts prepared by court reporter or other <--
22 transcriber.
23 If a transcript of a hearing or other administrative
24 proceeding is a public record as defined by this act, copies of
25 the transcript shall be provided upon request as follows:
26 (1) If prepared by a court reporter or other transcriber
27 who is an employee of an agency, the agency shall provide a
28 copy to the requester in accordance with the provisions of
29 this act.
30 (2) If prepared by a court reporter or other transcriber
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1 under contract with an agency, the agency shall refer a
2 requester of that transcript to the court reporter or
3 transcriber to obtain a copy of that transcript.
4 SECTION 709. TRANSCRIPTS OF HEARINGS AND ADMINISTRATIVE <--
5 PROCEEDINGS.
6 TRANSCRIPTS OF HEARINGS AND ADMINISTRATIVE PROCEEDINGS SHALL
7 BE DEEMED PUBLIC RECORDS AT THE CONCLUSION OF THE HEARINGS AND
8 ADMINISTRATIVE PROCEEDINGS. NOTHING IN THIS ACT SHALL PROHIBIT A
9 LITIGANT OR A PARTY TO A HEARING OR ADMINISTRATIVE PROCEEDING OR
10 THE LEGAL REPRESENTATIVE OF THE LITIGANT OR PARTY, FROM
11 ACQUIRING A FULL TRANSCRIPT OF THE HEARING OR ADMINISTRATIVE
12 PROCEEDING WHICH SHALL NOT BE SUBJECT TO REDACTION PRIOR TO OR
13 AFTER FINAL ADJUDICATION. AN AGENCY MAY REFER A LITIGANT OR A
14 PARTY TO A HEARING OR ADMINISTRATIVE PROCEEDING, OR THE LEGAL
15 REPRESENTATIVE OF THE LITIGANT OR PARTY, TO THE COURT REPORTER
16 OR OTHER TRANSCRIBER TO OBTAIN A COPY OF THE TRANSCRIPT IF ALL
17 OF THE FOLLOWING APPLY:
18 (1) THE COURT REPORTER OR TRANSCRIBER PREPARED THE
19 TRANSCRIPT UNDER CONTRACT WITH THE AGENCY.
20 (2) THE COURT REPORTER OR TRANSCRIBER IS ABLE TO MAKE
21 THE TRANSCRIPTS AVAILABLE WITHIN A REASONABLE TIME AND AT A
22 COST WHICH IS REASONABLE AND CUSTOMARY WITHIN THE COURT
23 REPORTING INDUSTRY.
24 (3) THE NAME, ADDRESS AND TELEPHONE NUMBER OF THE COURT
25 REPORTING OR TRANSCRIBING ENTITY UNDER CONTRACT WITH THE
26 AGENCY IS MADE AVAILABLE BY THE AGENCY.
27 CHAPTER 9
28 STATE-RELATED INSTITUTIONS
29 Section 901. Reporting.
30 No later than 180 days after the close of the fiscal year for
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1 which State funds are received, a State-related institution
2 shall file with the Governor's Office, the General Assembly, the
3 Auditor General and the State Library the information set forth
4 in section 902.
5 Section 902. Contents of report.
6 The report required under section 901 shall include all of
7 the following:
8 (1) All information required by Form 990 or an
9 equivalent form, of the United States Department of the
10 Treasury, Internal Revenue Service regardless of whether the
11 State-related institution is required to file the form by the
12 Federal Government.
13 (2) The salaries of all officers and directors of the
14 State-related institution.
15 (3) The highest 25 salaries paid to employees of the
16 institution that are not included under paragraph (2).
17 Section 903. Copies and posting.
18 A State-related institution shall maintain for at least seven
19 years a copy of the report in the institution's library and
20 shall provide free access to the report on the institution's
21 Internet website.
22 CHAPTER 21
23 MISCELLANEOUS PROVISIONS
24 Section 2101. Applicability.
25 (a) Prospective.--This act shall apply to requests for
26 information made on or after the effective date of this section.
27 (b) Effect.--With respect to all agencies, application of
28 this act shall not cause a record in existence on the effective
29 date of this section to become a public record if it was not
30 publicly accessible under the former act of June 21, 1957
20070H0443B2800 - 47 -
1 (P.L.390, No.212), referred to as the Right-to-Know Law, except
2 that a record which reflects current policy of a Commonwealth
3 agency or local agency and is used or relied upon by an agency
4 in the course of agency business shall be a public record.
5 (c) Specific designation.--Notwithstanding any other
6 provision of this act, the General Assembly may provide that a
7 record in the custody of an agency shall be a public record if
8 specifically designated by statute.
9 (d) Relation to other judicial actions.--If the provisions
10 of this chapter regarding access to public records conflict with
11 any judicial order or decree, the provisions of this chapter
12 shall not control.
13 Section 2102. Repeals.
14 The following shall apply:
15 (1) The General Assembly declares that the repeal under
16 paragraph (2) is necessary to effectuate the provisions of
17 this act.
18 (2) The act of June 21, 1957 (P.L.390, No.212), referred
19 to as the Right-to-Know Law, is repealed.
20 Section 2103. Effective date.
21 This act shall take effect as follows:
22 (1) The following provisions shall take effect
23 immediately JULY 1, 2008: <--
24 (i) Sections 303, 501(a), (b)(7), (9) and (11), 701,
25 705, 706 and 707.
26 (ii) This section.
27 (2) The remainder of this act shall take effect in one <--
28 year JULY 1, 2009, or upon the promulgation of regulations by <--
29 the public records office under section 501(b)(11), whichever
30 is earlier.
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