THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY PILEGGI, BAKER, M. WHITE, FONTANA, RAFFERTY, FOLMER, O'PAKE, ERICKSON, VANCE, COSTA, EARLL, GREENLEAF, EICHELBERGER AND TOMLINSON, SEPTEMBER 20, 2010

REFERRED TO STATE GOVERNMENT, SEPTEMBER 20, 2010  

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,"

further providing for definitions, for requests, for access,

for written requests, for exceptions for public records, for

general rule, for filing of appeal, for appeals officers, for

Office of Open Records and for applicability.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The definitions of "independent agency,"

"personal financial information" and "State-affiliated entity"

in section 102 of the act of February 14, 2008 (P.L.6, No.3),

known as the Right-to-Know Law, are amended and the section is

amended by adding a definition 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: 

* * *

"Independent agency."  Any board, commission, authority or

other agency or officer of the Commonwealth, that is not subject

to the policy supervision and control of the Governor. The term

does not include a legislative or judicial agency.

* * *

"Personal financial information."  An individual's personal

credit, charge or debit card information; bank account

information; bank, credit or financial statements; account or

PIN numbers; forms required to be filed with or by any taxing

authority; and other information relating to an individual's

personal finances.

* * *

"State-affiliated entity."  A Commonwealth authority or

Commonwealth entity. The term includes [the Pennsylvania Higher

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] the Pennsylvania Turnpike Commission, the

Pennsylvania Housing Finance Agency, the Pennsylvania Municipal

Retirement System, the Pennsylvania Infrastructure Investment

Authority, the State Public School Building Authority, the

Pennsylvania Higher Educational Facilities Authority and the

State System of Higher Education. The term does not include any

court or other officer or agency of the unified judicial system,

the General Assembly and its officers and agencies, any State-

related institution, political subdivision or any local,

regional or metropolitan transportation authority.

* * *

"Time response log."  A log created, received, maintained, or

retained by a public-safety answering point (PSAP) 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.  Sections 506, 701 and 703 of the act are amended

to read:

Section 506.  Requests.

(a)  Disruptive requests.--

(1)  An agency may deny a requester access to a record if

the requester has made repeated requests for that same record

and the repeated requests have placed an unreasonable burden

on the agency.

(2)  A denial under this subsection shall not restrict

the ability to request a different record.

(b)  Disaster or potential damage.--

(1)  An agency may deny a requester access:

(i)  when timely access is not possible due to fire,

flood or other disaster; or

(ii)  to historical, ancient or rare documents,

records, archives and manuscripts when access may, in the

professional judgment of the curator or custodian of

records, cause physical damage or irreparable harm to the

record.

(2)  To the extent possible, the contents of a record

under this subsection shall be made accessible to a requester

even when the record is physically unavailable.

(c)  Agency discretion.--An agency may exercise its

discretion to make any otherwise exempt record accessible for

inspection and copying under this chapter, if all of the

following apply:

(1)  Disclosure of the record is not prohibited under any

of the following:

(i)  Federal or State law or regulation.

(ii)  Judicial order or decree.

(2)  The record is not protected by a privilege.

(3)  The agency head determines that the public interest

favoring access outweighs any individual, agency or public

interest that may favor restriction of access.

(d)  Agency possession.--

(1)  A [public record] contract between an agency and a

business or organization that is not in the possession of an

agency but is in the possession of [a party with whom the

agency has contracted to perform a governmental function on

behalf of the agency, and which directly relates to the  

governmental function and is not exempt under this act,] the

business or organization shall be [considered a] public

[record of the agency for purposes of] under this act. This

paragraph includes financial records directly relating to the

contract.

(2)  Nothing in this act shall be construed to require

access to any other record of the party in possession of the

public record.

(3)  A request for a [public record] contract in

possession of a party other than the agency shall be

submitted to the open records officer of the agency. Upon a

determination that the record is subject to access under this

act, the open records officer shall assess the duplication

fee established under section 1307(b) and upon collection

shall remit the fee to the party in possession of the record

if the party duplicated the record.

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 or computer file format requested if it

exists in that medium or computer file 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 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 agency head.

Employees of an agency shall be directed to promptly forward

requests for records to the agency's open-records officer. A

written request should 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

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.

Section 3.  Section 708(b)(9), (10) and (17) of the act are 

amended and the subsection is amended by adding paragraphs to

read:

Section 708.  Exceptions for public records.

* * *

(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 public water or sewer authority or other municipality

authority, cooperative or entity that provides a utility

service, including electricity, telecommunications, water,

sewer, natural gas or similar service. The authority or

entity 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 certification may

be charged.

* * *

(6.1)  Tax records. An agency shall establish a process

to provide a clearance certificate to a person certifying

that all taxes owed have been paid. A reasonable fee for

certification may be charged.

* * *

(9)  The draft of a bill, resolution, regulation,

statement of policy, management directive, ordinance or

amendment thereto prepared by or for an agency, except when

the record is presented to a quorum for deliberation at an

advertised public meeting in accordance with 65 Pa.C.S. Ch.7

(relating to open meetings).

(10)  (i)  A record that reflects:

(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

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)] This paragraph 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 at a public meeting in accordance with 65

Pa.C.S. Ch. 7 shall be a public record regardless of

whether a vote occurs at that meeting.

(iii)  This paragraph shall not apply to a written or

Internet application or other document that has been

submitted to request Commonwealth funds.

(iv)  This paragraph shall not apply to the results

of public opinion surveys, polls, focus groups, marketing

research or similar effort designed to measure public

opinion.

* * *

(17)  A record of an agency [relating to a noncriminal

investigation] that would reveal the institution, progress or

result of 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

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] (Reserved).

(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.

This paragraph shall not apply to records reflecting the

imposition of a fine or civil penalty, the issuance of a

notice of violation, the suspension, modification or

revocation of a license, permit, registration, certification

or similar authorization issued by an agency, the result of a

regular inspection, or an executed settlement agreement

unless the agreement is determined to be confidential by a

court.

* * *

(31)  A record of:

(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.

This paragraph shall not apply to the financial records of a

volunteer organization under this paragraph if the volunteer

organization has a contract with a local agency to provide

services to the local agency.

(32)  An agency's bank account numbers, bank routing

numbers, credit card numbers or passwords.

* * *

Section 4.  Sections 901, 1101, 1102(a), 1310 and 3101 of the

act are amended to read:

Section 901.  General rule.

(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:

(1)  In the case of a request submitted by 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.

(2)  In the case of a request submitted by first class

mail or similar means, ten business days from the postmark

date. If the agency fails to send the response within ten

business days from the postmark date, the written request for

access shall be deemed denied.

(3)  In the case of a request submitted by certified mail

or similar means requiring signature as proof of delivery,

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 1101.  Filing of appeal.

(a)  Authorization.--

(1)  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 date of the

agency's response or within [15] 20 business days of a deemed

denial, whichever date comes first. 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.] identify the records to

which the requester has been denied access that are the

subject of 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] 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 is held under

section 1102(a)(2), the appeals officer may extend the

deadline up to 15 days.

(2)  If the appeals officer fails to issue a final

determination within 30 days, 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.

(3)  Copies of the written request shall be sent to the

agency and the requester.

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, in which

case the appeals officer may extend the deadline in section

1101(b)(1) by up to 15 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.

* * *

Section 1310.  Office of Open Records.

(a)  Establishment.--There is established in the Department

of Community and Economic Development an Office of Open Records.

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

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

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.--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.

(f)  Appropriation.--The appropriation for the office shall

be in a separate line item and shall be under the jurisdiction

of the executive director.

(g)  Standing.--The Office of Open Records shall have

standing and may participate as a party in an appeal of a

decision of the office.

Section 3101.  Applicability.

The following shall apply:

(1)  This act shall apply to requests for information

made after December 31, 2008.

(2)  In addition to any other entity to which this act

applies by its express provisions, and notwithstanding any

other provision of law to the contrary, this act shall apply

to the following:

(i)  The Pennsylvania Higher Education Assistance

Agency and any entity established thereby.

(ii)  The Pennsylvania Interscholastic Athletic

Association.

(iii)  Community colleges.

Section 5.  This act shall take effect in 60 days.