Regular Session 2021-2022 Senate Bill 0492 P.N. 1923

PRIOR PRINTER'S NO. 591

PRINTER'S NO. 1923

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

492

Session of

2021

INTRODUCED BY MASTRIANO, BAKER, STEFANO, MENSCH, PHILLIPS-HILL

AND VOGEL, APRIL 13, 2021

SENATOR ARGALL, STATE GOVERNMENT, AS AMENDED, SEPTEMBER 20, 2022

AN ACT

Amending the act of February 14, 2008 (P.L.6, No.3), entitled

"An act providing for access to public information, for a

designated open-records officer in each Commonwealth agency,

local agency, judicial agency and legislative agency, for

procedure, for appeal of agency determination, for judicial

review and for the Office of Open Records; imposing

penalties; providing for reporting by State-related

institutions; requiring the posting of certain State contract

information on the Internet; and making related repeals," in

preliminary provisions, further providing for definitions; in

requirements and prohibitions, providing for Pennsylvania

Interscholastic Athletic Association; in access, further

providing for open-records officer, FOR APPEALS OFFICER, for

regulations and policies, for uniform form, for requests and

for retention of records and providing for inmate access; in

procedure, further providing for access, for requests, for

written requests, for electronic access, for creation of

record, for redaction, for production of certain records and

for exceptions for public records; in agency response,

further providing for general rule and for extension of time;

in appeal of agency determination, further providing for

filing of appeal and for appeals officers; in judicial

review, further providing for civil penalty, for fee

limitations and for Office of Open Records; and, in

miscellaneous provisions, further providing for relation to

other laws.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. The definitions of "independent agency," "local

agency," "personal financial information" and "State-affiliated

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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 definitions 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:

* * *

"Commercial purpose." As follows:

(1) The use of a record:

(i) for the purpose of selling or reselling any

portion of the record;

(ii) to obtain names and addresses from the record

for the purpose of commercial solicitation; or

(iii) for the purpose of generating revenue or in a

manner through which the requester can reasonably expect

to generate revenue.

(2) The term does not include the use of a record by an

educational or noncommercial scientific institution for

scholarly or scientific research or the use of a record by

the news media, a journalist or an author for news gathering

or dissemination in a newspaper, periodical, book, digital

publication or radio or television news broadcast.

* * *

"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.

"Inmate." An individual currently incarcerated, after having

been sentenced by a court of competent jurisdiction, in a

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Federal, State or county correctional facility or prison.

* * *

"Local agency." Any of the following:

(1) Any political subdivision, intermediate unit,

charter school, cyber charter school or public trade or

vocational school.

(2) Any local, intergovernmental, regional or municipal

agency, authority, council, board, commission or similar

governmental entity. This paragraph includes an economic

development authority and an industrial development

authority.

(3) Any campus police department of a State-owned or

State-related college or university.

* * *

"Personal financial information." An individual's personal

credit, charge or debit card information; bank account or other

financial institution account information; bank, credit or

financial statements; account or PIN numbers; forms required to

be filed by a taxpayer with a Federal or Commonwealth taxing

authority; employee benefit election information; individual

employee contributions to retirement plans and investment

options; individual employee contributions to health care

benefits and other benefits; individual employee contributions

to charitable organizations; 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

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Commission, the Pennsylvania Fish and Boat Commission, the

Pennsylvania Housing Finance Agency, the Pennsylvania Municipal

Retirement Board, the State System of Higher Education, a

community college, the Pennsylvania Turnpike Commission, the

Pennsylvania Public Utility Commission, the Pennsylvania

Infrastructure Investment Authority, the State Public School

Building Authority[, the Pennsylvania Interscholastic Athletic

Association] and the Pennsylvania Higher Educational Facilities

Authority. The term does not include a State-related

institution.

* * *

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

retained by a public safety answering point (PSAP), as defined

in 35 Pa.C.S. § 5302 (relating to definitions), containing the

following information:

(1) The time the call was received by the PSAP.

(2) The time the PSAP contacted or dispatched the

dedicated emergency response organization for response.

(3) The dedicated emergency response organization

dispatched.

(4) The time the dedicated emergency response

organization responded.

(5) The time the dedicated emergency response

organization arrived on the scene.

(6) The time the dedicated emergency response

organization became available.

(7) The address of the incident or the street block

identifier, the cross street or the mile marker nearest the

scene of the incident.

(8) A description of the reason for the dispatch.

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* * *

Section 2. The act is amended by adding a section to read:

Section 307. Pennsylvania Interscholastic Athletic Association.

For purposes of this act, the Pennsylvania Interscholastic

Athletic Association is considered to be a local agency and

shall provide public records in accordance with this act.

Section 3. Section 502 of the act is amended by adding a

subsection to read:

Section 502. Open-records officer.

* * *

agency's open-records officer with the Office of Open Records in

a manner prescribed by the Office of Open Records.

Section 4. Section 504(b)(1) of the act is amended to read:

SECTION 4. SECTIONS 503(D)(2), 504(B)(1), 506(A), 507, 702

AND 703 OF THE ACT ARE AMENDED TO READ:

SECTION 503. APPEALS OFFICER.

* * *

(D) LAW ENFORCEMENT RECORDS AND STATEWIDE OFFICIALS.--

* * *

(2) THE DISTRICT ATTORNEY OF A COUNTY SHALL DESIGNATE

ONE OR MORE APPEALS OFFICERS TO HEAR APPEALS UNDER CHAPTER 11

RELATING TO ACCESS TO CRIMINAL INVESTIGATIVE RECORDS IN

POSSESSION OF A LOCAL AGENCY OF THAT COUNTY OR A CAMPUS

POLICE DEPARTMENT OF A STATE-OWNED OR STATE-RELATED

UNIVERSITY IN THAT COUNTY. THE APPEALS OFFICER DESIGNATED BY

THE DISTRICT ATTORNEY SHALL DETERMINE IF THE RECORD REQUESTED

IS A CRIMINAL INVESTIGATIVE RECORD.

Section 504. Regulations and policies.

* * *

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(b) Posting.--The following information shall be posted at

each agency and, if the agency maintains an Internet website, on

the agency's Internet website:

(1) Contact information for the open-records officer[.],

including name, address, telephone number, facsimile number

if used and email address if used.

* * *

Section 5. Section 505 of the act is amended by adding a

subsection to read:

Section 505. Uniform form.

* * *

(d) Commercial requests.--The following shall apply:

(1) An agency may require a requester to certify in

writing whether the request is for a commercial purpose. A

requester that submits a false written statement under this

subsection shall be subject to 18 Pa.C.S. § 4904 (relating to

unsworn falsification to authorities).

(2) Certification to Commonwealth and local agencies

shall be submitted in a manner approved by the Office of Open

Records.

Section 6. Sections 506(a) and 507 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.

(1.1) An agency may deny a request to a party to

litigation when the request:

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(i) is material to a pending civil action or

proceeding to which the agency is a party and the

Pennsylvania Rules of Civil Procedure or the Federal

Rules of Civil Procedure apply; or

(ii) was previously made in litigation discovery.

(2) A denial under this subsection shall not restrict

the ability to request a different record.

* * *

Section 507. Retention of records.

(a) Agency schedules.--Nothing in this act shall be

construed to modify, rescind or supersede any record retention

policy or disposition schedule of an agency established pursuant

to law, regulation, policy or other directive.

(b) Prohibition.--

(1) Notwithstanding subsection (a), once a request for

records has been submitted under Chapter 7, an agency may not

knowingly dispose of any potentially responsive record until

the request has been responded to and any related appeals

have been exhausted.

(2) A court may impose a civil penalty of not more than

$25,000 , PER REQUEST, if an agency or public official, in

violation of paragraph (1), disposes of any potentially

responsive record in bad faith.

Section 7. The act is amended by a adding a section to read:

Section 508. Inmate access.

(a) Status.--Except as provided in subsection (b), an inmate

may not be a requester for purposes of this act.

(b) Records.--An agency shall provide an inmate with copies

of the following records as they pertain directly to the inmate

if the disclosure of the record will not diminish the safety or

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security of any person or correctional facility and if there are

no other policies or procedures in place for the inmate to

obtain the requested information:

(1) Criminal records relating to the criminal commitment

of the inmate.

(2) Institutional housing information.

(3) The inmate's financial records.

(4) The inmate's work records.

(5) The inmate's educational records.

(6) The inmate's disciplinary records.

(7) Disciplinary, housing and other policies adopted by

the correctional institution or the Department of

Corrections.

(8) A record relating to any Federal or State benefit

received by the inmate or for which the inmate is eligible.

(9) The inmate's tax records.

(10) The inmate's voting records.

(11) Records relating to any license issued to the

inmate by a Commonwealth or local agency.

agency from voluntarily permitting an inmate to have access to

records not listed under subsection (b) or prevent an agency

from complying with a lawful subpoena or court order.

Section 8. Sections 701, 702 and 703 of the act are amended

to read:

Section 701. Access.

(a) General rule.--Unless otherwise provided by law, a

public record, legislative record or financial record shall be

accessible for inspection and duplication in accordance with

this act. A record being provided to a requester shall be

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provided in the medium, computer file format or other format

requested if it exists in that medium, computer file format or

other format; otherwise, it shall be provided in the medium in

which it exists. Public records, legislative records or

financial records shall be available for access during the

regular business hours of an agency.

(b) Construction.--Nothing in this act shall be construed to

require access to any computer either of an agency or individual

employee of an agency.

Section 702. [Requests] VERBAL REQUESTS.

Agencies may fulfill verbal[, written or anonymous verbal] or

written] requests for access to records under this act. If the

requester wishes to pursue the relief and remedies provided for

in this act, the request for access to records must be a written

request.

Section 703. Written requests.

(a) General rule.--A written request for access to records

may be submitted in person, by mail, by e-mail, by facsimile or,

to the extent provided by agency rules, by any other electronic

means. A written request must be addressed to the open-records

officer designated pursuant to section 502 or to the

administrative office of the agency. [Employees of an] The

administrative office of the agency shall [be directed to]

promptly forward requests for records to the open-records

officer of the agency that received the request. 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]

Except as required under section 505(d), a written request need

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not include any explanation of the requester's reason for

requesting or intended use of the records unless otherwise

required by law.

(b) False certification.--A requester that submits a false

certification under section 505(d) shall be subject to 18

Pa.C.S. § 4904 (relating to unsworn falsification to

authorities).

Section 9 5. Section 704(b) of the act is amended by adding

a paragraph to read:

Section 704. Electronic access.

* * *

(b) Response.--

* * *

(3) If the requester is seeking access to the contents

of a database, the requester may, within 30 days following

receipt of the agency notification, submit a written request

to the agency to receive some or all of the underlying

database. The agency shall provide access to the database A

COPY OF THE DATABASE IN THE SAME MANNER AS IT IS UTILIZED BY

THE AGENCY or provide a reason for denying access to A COPY

OF the database within 14 days of the receipt of the written

request. Any denial under this paragraph may be appealed

pursuant to the provisions of Chapter 11.

Section 10 6. Sections 705, 706 and 707 of the act are

amended to read:

Section 705. Creation of record.

When responding to a request for access, an agency shall not

be required to create a record which does not currently exist or

to compile, maintain, format or organize a record in a manner in

which the agency does not currently compile, maintain, format or

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organize the record. Providing data from an agency database does

not constitute creating a record.

Section 706. Redaction.

If an agency determines that a [public record, legislative

record or financial] record contains information which is

subject to access as well as information which is not subject to

access, the agency's response shall grant access to the

information which is subject to access and deny access to the

information which is not subject to access. If the information

which is not subject to access is an integral part of the

[public record, legislative record or financial] record and

cannot be separated, the agency shall redact from the record the

information which is not subject to access, and the response

shall grant access to the information which is subject to

access. The agency may not deny access to the record if the

information which is not subject to access is able to be

redacted. Information which an agency redacts in accordance with

this subsection shall be deemed a denial under Chapter 9.

Section 707. Production of certain records.

(a) General rule.--If, in response to a request, an agency

produces a record that is not a public record, legislative

record or financial record, the agency shall notify any third

party that provided the record to the agency, the person that is

the subject of the record and the requester.

(b) Requests for trade secrets.--An agency shall notify a

third party of a request for a record if the third party

provided the record and included a written statement signed by a

representative of the third party that the record contains a

trade secret or confidential proprietary information.

Notification shall be provided within five business days of

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receipt of the request for the record. The third party shall

have five business days from receipt of notification from the

agency to provide input on the release of the record. The agency

shall [deny the request for the record or release the record

within ten business days of the provision of notice to the third

party and shall notify the third party of the decision.] notify

the third party of the agency's decision to deny access to the

record or release the record within one business day of

responding to the requester.

(1) Prior to an adjudication becoming final, binding and

nonappealable, a transcript, IF IT EXISTS, of an

administrative proceeding shall be provided to a requester by

the agency stenographer or a court reporter, in accordance

with agency procedure or an applicable contract.

(2) Following an adjudication becoming final, binding

and nonappealable, a transcript of an administrative

proceeding shall be provided to a requester in accordance

with the duplication rates established in section 1307(b).

(3) This subsection may not be construed to require an

agency to transcribe a proceeding solely for purposes of

responding to a request under this act.

(d) Information privacy.--When an agency believes that

responsive material to a request may include personal

information protected under section 1 of Article I of the

Constitution of Pennsylvania, it may require a requester to

provide additional information as to:

(1) why the requester believes that the information is

not protected; or

(2) if the information is protected, why the interest of

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the public in having access to the information outweighs the

individual privacy rights.

Section 11 7. Section 708(b)(6), (9), (10), (13), (16), (17)

and (18) and (c) of the act are amended and subsection (b) is

amended by adding paragraphs to read:

Section 708. Exceptions for public records.

* * *

(b) Exceptions.--Except as provided in subsections (c) and

(d), the following are exempt from access by a requester under

this act:

* * *

(6) (i) The following personal identification

information:

(A) A record containing all or part of a

person's Social Security number, driver's license

number, personal financial information, home,

cellular or personal telephone numbers, personal e-

mail addresses, employee number or other confidential

personal identification number.

(B) A spouse's name, marital status or

beneficiary or dependent information, including the

number, names and ages of an employee's dependents.

officer or judge.

(ii) Nothing in this paragraph shall preclude the

release of the name, position, salary, actual

compensation or other payments or expenses, employment

contract, employment-related contract or agreement and

length of service of a public official or an agency

employee.

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(iii) An agency may redact the name or other

identifying information relating to an individual

performing an undercover or covert law enforcement

activity from a record.

(iv) Nothing in this paragraph shall prevent the

disclosure of aggregated data of employer or employee

costs related to retirement benefits, health care

benefits or other benefits or the disclosure of options

made available to employees regarding retirement, health

care or other benefits plans.

* * *

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

statement of policy, management directive, ordinance or

amendment thereto prepared by or for an agency. This

paragraph shall not apply to a draft that is presented to a

quorum for deliberation in accordance with 65 Pa.C.S. Ch. 7

(relating to open meetings) or that is discussed by agency

officials or employees at a public meeting regardless of

whether a vote occurs at the meeting.

(10) As follows:

(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

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predecisional deliberations.

(B) The strategy to be used to develop or

achieve the successful adoption of a budget,

legislative proposal or regulation.

(ii) Subparagraph (i)(A) shall apply to agencies

subject to 65 Pa.C.S. Ch. 7 [(relating to open meetings)]

in a manner consistent with 65 Pa.C.S. Ch. 7. A record

which is not otherwise exempt from access under this act

and which is presented to a quorum for deliberation in

accordance with 65 Pa.C.S. Ch. 7 or which is discussed by

agency officials or employees at a public meeting shall

be a public record regardless of whether a vote occurs at

the 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.

(v) This paragraph shall not apply to records

created more than 20 years prior to the request.

* * *

(13) Records that would disclose the identity of, or

personal financial information relating to, an individual who

lawfully makes a donation to or for the benefit of an agency

unless the donation is intended for or restricted to

providing remuneration or personal tangible benefit to a

named public official or employee of the agency, including

lists of potential donors compiled by an agency to pursue

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donations, donor profile information or personal identifying

information relating to a donor.

* * *

(16) A record of an agency relating to or resulting in a

criminal investigation, including:

(i) Complaints of potential criminal conduct other

than a private criminal complaint.

(ii) Investigative materials, notes, correspondence,

videos and reports.

(iii) A record that includes the identity of a

confidential source or the identity of a suspect who has

not been charged with an offense to whom confidentiality

has been promised.

(iv) A record that includes information made

confidential by law or court order.

(v) Victim information, including any information

that would jeopardize the safety of the victim.

(vi) A record that, if disclosed, would do any of

the following:

(A) Reveal the institution, progress or result

of a criminal investigation, except the filing of

criminal charges.

(B) Deprive a person of the right to a fair

trial or an impartial adjudication.

codefendant.

(D) Hinder an agency's ability to secure an

arrest, prosecution or conviction.

(E) Endanger the life or physical safety of an

individual.

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(vii) This paragraph shall not apply to records

created more than 50 60 years prior to the request,

unless the agency can demonstrate actual harm to an

ongoing investigation if the records are released.

This paragraph shall not apply to information contained in a

police blotter as defined in 18 Pa.C.S. § 9102 (relating to

definitions) and utilized or maintained by the Pennsylvania

State Police, local, campus, transit or port authority police

department or other law enforcement agency or in a traffic

report except as provided under 75 Pa.C.S. § 3754(b)

(relating to accident prevention investigations). Police

blotter information, in whatever form it exists, is public

and includes, but is not limited to, the name and address of

an individual charged, the alleged offenses, the date of the

offenses and the date of the charges.

(17) [A] Except for a final safety inspection report

made pursuant to law or regulation or a final agency decision

in the noncriminal investigation, a record of an agency

relating to a noncriminal investigation, including:

(i) Complaints submitted to an agency.

(ii) Investigative materials, notes, correspondence

and reports.

(iii) A record that includes the identity of a

confidential source, including individuals subject to the

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

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the following:

(A) Reveal the institution, progress or result

of an agency investigation, except the imposition of

a fine or civil penalty, the suspension, modification

or revocation of a license, permit, registration,

certification or similar authorization issued by an

agency or an executed settlement agreement unless the

agreement is determined to be confidential by a

court.

(B) Deprive a person of the right to an

impartial adjudication.

privacy.

(D) Hinder an agency's ability to secure an

administrative or civil sanction.

(E) Endanger the life or physical safety of an

individual.

(vii) This paragraph shall not apply to records

created more than 25 35 years prior to the request,

unless the agency can demonstrate actual harm to an

ongoing investigation if the records are released.

(18) Emergency dispatches as follows:

(i) Records or parts of records, except time

response logs, pertaining to audio recordings, telephone

or radio transmissions received by emergency dispatch

personnel, including 911 recordings.

(ii) This paragraph shall not apply to a 911

recording, or a transcript of a 911 recording, if the

agency or a court determines that the public interest in

disclosure outweighs the interest in nondisclosure.

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* * *

(31) An agency's financial institution account numbers,

routing numbers, credit card numbers, PIN numbers and

passwords.

(32) A record of any of the following:

(i) A volunteer ambulance service.

(ii) A volunteer fire company.

(iii) A volunteer rescue company.

(iv) A volunteer water rescue company.

(v) A volunteer organization that provides hazardous

materials response services.

(vi) A volunteer organization that provides

emergency medical services.

Section 506(d)(1) shall apply to a volunteer organization

under this paragraph that contracts with a local agency to

provide services to the local agency.

subsection (b) shall not apply to financial records, except that

an agency may redact that portion of a financial record

protected under subsection (b)(1), (2), (3), (4), (5), (6),

(11), (13), (16) [or], (17), (28) or (30). An agency shall not

disclose the identity of an individual performing an undercover

or covert law enforcement activity.

* * *

Section 12 8. Sections 901, 902(b)(2), 1101, 1102 and 1305,

1305, 1310 AND 3101.1 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,

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legislative record or financial record and whether the agency

has possession, custody or control of the identified record, and

to respond as promptly as possible under the circumstances

existing at the time of the request. All applicable fees shall

be paid in order to receive access to the record requested.

(b) Time for response.--The time for response shall not

exceed, in the case of a request made in person or submitted by

regular mail, email, web form, facsimile or similar means, five

business days from the date the written request is received by

the open-records officer for an agency. If the agency fails to

send the response within five business days of receipt of the

written request for access, the written request for access shall

be deemed denied.

Section 902. Extension of time.

* * *

(b) Notice.--

* * *

(2) The notice shall include a statement notifying the

requester that the request for access is being reviewed, the

reason for the review, a reasonable date that a response is

expected to be provided and an estimate of applicable fees

owed when the record becomes available. [If the date that a

response is expected to be provided is in excess of 30 days,

following the five business days allowed for in section 901,

the request for access shall be deemed denied unless the

requester has agreed in writing to an extension to the date

specified in the notice.] The request for access shall be

deemed denied if the agency fails to send a response within

30 days following the five business days u nder section 901,

unless the requester has agreed in writing to an additional

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extension beyond 30 days.

* * *

Section 1101. Filing of appeal.

[(a) Authorization.--

(1) If a written request for access to a record is]

(a) Authorization.--The following shall apply:

(1) (i) If a written request for access to a record is

denied or deemed denied, the requester may file an appeal

with the Office of Open Records or judicial, legislative

or other appeals officer designated under section 503(d)

within [15 business] 60 30 days of the [mailing] postmark

or e-mail date of the agency's response or within [15

business] 60 30 days of a deemed denial, whichever comes

first.

(ii) The appeal shall [state the grounds upon which

the requester asserts that the record is a public record,

legislative record or financial record and shall address

any grounds stated by the agency for delaying or denying

the request.] include all of the following:

(A) The text A COPY of the original request.

(B) The text A COPY of the agency denial.

to be relevant.

(iii) The Office of Open Records shall provide a

form on its publicly accessible Internet website that may

be used by the requester to file the appeal.

(iv) The Office of Open Records APPEALS OFFICER may

order a requester who fails to include the information

REQUIRED under subparagraph (ii) to provide the required

information.

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(2) Except as provided in section 503(d), in the case of

an appeal of a decision by a Commonwealth agency or local

agency, the Office of Open Records shall assign an appeals

officer to review the denial.

(b) Determination.--

(1) Unless the requester agrees otherwise, the appeals

officer shall make a final determination which shall be

mailed to the requester and the agency within 30 days of

receipt of the appeal filed under subsection (a). The appeals

officer may extend this deadline by up to 15 days by

providing notice to both parties.

(1.1) If a hearing is ordered under section 1102(a )(2),

the appeals officer may extend the deadline up to 90

additional days.

(1.2) If an in-camera review is ordered under section

1102(a)(2), the appeals officer may extend the deadline:

(i) Up to 45 additional days, if the number of

records is 10 or fewer.

(ii) Up to 90 additional days, if the number of

records is greater than 10 or the records include audio

or video recordings.

(1.3) If the issue before the Office of Open Records is

substantially the same as an issue currently on appeal to a

court of common pleas, Commonwealth Court or the Supreme

Court, the appeals officer may stay the opinion of the Office

of Open Records until the appeal is decided.

(2) If the Office of Open Records or other appeals

officer fails to issue a final determination within 30 days

or as otherwise provided under paragraph (1), the appeal is

deemed denied.

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(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.

(4) Except as provided in section 503(d), the Office of

Open Records shall have exclusive jurisdiction over all

appeals filed against the Commonwealth and local agencies.

(5) An appeals officer designated by a district attorney

under section 503(d)(2) shall have jurisdiction over an

appeal only insofar as it relates to access to criminal

investigative records in possession of a local agency OR A

CAMPUS POLICE DEPARTMENT OF A STATE-OWNED OR STATE-RELATED

UNIVERSITY IN THAT COUNTY . To the extent an appeal involves

multiple issues, one of which relates to access to criminal

investigative records in possession of a local agency, the

Office of Open Records shall have jurisdiction over all other

issues in the appeal.

(6) If an appeals officer does not have jurisdiction to

hear an appeal or part of an appeal but another appeals

officer designated under section 503 has jurisdiction, the

appeals officer without jurisdiction shall transfer the

appeal or part of the appeal, as appropriate, to the appeals

officer with jurisdiction. If the appeal was timely filed

with the original appeals officer, it shall be considered

timely filed upon the transfer.

(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

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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 or conduct an

in-camera review. A decision to hold or not to hold a hearing

is not appealable. A decision to conduct or not to conduct an

in-camera review 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.

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[(3) Consult with agency counsel as appropriate.]

(4) Issue a final determination on behalf of the Office

of Open Records or other agency.

(5) Provide to the Office of Open Records, in a manner

and form prescribed by the Office of Open Records, a copy of

all final determinations issued within seven days of

issuance.

(b) Procedures.--The Office of Open Records, a judicial

agency, a legislative agency, the Attorney General, Auditor

General, State Treasurer or district attorney may adopt

procedures relating to appeals under this chapter.

(1) If an appeal is resolved without a hearing, 1 Pa.

Code Pt. II (relating to general rules of administrative

practice and procedure) does not apply except to the extent

that the agency has adopted these chapters in its regulations

or rules under this subsection.

(2) If a hearing is held, 1 Pa. Code Pt. II shall apply

unless the agency has adopted regulations, policies or

procedures to the contrary under this subsection.

(3) In the absence of a regulation, policy or procedure

governing appeals under this chapter, the appeals officer

shall rule on procedural matters on the basis of justice,

fairness and the expeditious resolution of the dispute.

(4) If a procedural defect would otherwise cause an

appeal to be dismissed, the appeals officer may, with the

agreement of the agency and the requester, waive the defect

and proceed to consider the case on its merits.

require an agency to submit a record and a privilege or

exemption log for the purpose of conducting an in-camera review

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to determine if the record is a public record.

Section 1305. Civil penalty.

(a) Denial of access.--A court may impose a civil penalty of

not more than [$1,500] $10,000 $2,500 if an agency [denied]

denies access to a public record in bad faith.

(b) Failure to comply with [court] order.--[An] A court may

impose a civil penalty of not more than $500 per day if an

agency or public official [who does not promptly] fails to

comply with [a court] an order under this act [is subject to a

civil penalty of not more than $500 per day until the public

records are provided].

Section 13. Section 1307 of the act is amended by adding a

subsection to read:

Section 1307. Fee limitations.

* * *

(g.1) Additional fees.--

(1) Notwithstanding subsection (e), each agency may

assess fees for responding to commercial requests under this

act. In addition to fees under subsections (a) and (b),

reasonable standard charges may be charged for document

search, retrieval, review and redaction for documents for

commercial use.

(2) Fees under paragraph (1) must be calculated at no

more than the hourly wage of the lowest-paid public employee

of the agency who is capable of searching, retrieving,

reviewing and providing for redaction of the information

necessary to comply with the request.

* * *

Section 14. Sections 1310 and 3101.1 of the act are amended

to read:

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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 an annual training [courses] course 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 and online training

courses throughout the year 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

20210SB0492PN1923 - 27 -

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.

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] Director. 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.

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(e) Duties.--

(1) The executive director shall ensure that the duties

of the Office of Open Records are carried out and shall

monitor cases appealed to the Office of Open Records.

(2) The Department of Community and Economic Development

shall provide payroll, leave and benefits, budget,

information technology and administrative support, and any

other support which may be necessary for the operation of the

Office of Open Records, to the Office of Open Records .

(e.1) Public comment.--The Office of Open Records shall

abstain from public comment about a pending proceeding before

the Office of Open Records . This subsection shall not prohibit

employees of the Office of Open Records from making public

statements in the course of official duties, from issuing

written advisory opinions, from making general comments on this

act that are not related to a specific pending proceeding before

the Office of Open Records or from explaining the procedures of

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.

Section 3101.1. Relation to other laws.

(a) General rule.--If the provisions of this act regarding

access to records conflict with any other Federal or State law,

the provisions of this act shall not apply.

(b) Records made public under other laws.--If records are

expressly made public under any other Federal or State law, the

exceptions set forth in section 708(b) shall not apply.

Section 15 9. This act shall take effect July 1, 2021, or

immediately, whichever is later IN 90 DAYS.

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