Trial Engrossment of Amendment A04480 to House Bill 2524 P.N. 3058, Regular Session 2021-2022

A04480

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

2524

Session of

2022

INTRODUCED BY SCHMITT, RIGBY, HENNESSEY, B. MILLER, TOPPER,

RYAN, ZIMMERMAN, MOUL AND GROVE, APRIL 20, 2022

AS REPORTED FROM COMMITTEE ON STATE GOVERNMENT, HOUSE OF

REPRESENTATIVES, AS AMENDED, APRIL 27, 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

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

written requests, for redaction, for production of certain

records and for exceptions for public records; in agency

response, further providing for extension of time and

providing for relief from vexatious requesters; in appeal of

agency determination, further providing for filing of appeal

and for appeals officers; in judicial review, further

providing for court costs and attorney fees, 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" and "personal financial information" 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 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 to obtain names and addresses

from the record for the purpose of commercial solicitation.

(2) The direct use of a record for sale or resale.

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

an :

(I) 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 . ; OR

(II) A REQUEST FOR RECORDS FROM AN ATTORNEY ON

BEHALF OF A CLIENT IF THE RECORDS ARE NOT OBTAINED FOR

THE PURPOSE OF SELLING, RESELLING OR SOLICITATION BY THE

ATTORNEY OR CLIENT OR USED BY THE CLIENT FOR A PURPOSE

UNDER SUBPARAGRAPH (I) . ;

(iii) a request for records from an entity holding a

certificate of authority or license from the Insurance

Department, their contractors, vendors, licensees,

service providers or affiliates, provided that the

records obtained shall only be used for the business of

A04480 - 2 -

insurance;

(iv) a request for real estate-related records used

for real estate purposes; or

(v) a request for records by an entity for purposes

of providing fraud prevention, identity theft, financial

transactions, crediting reporting and public safety,

including law enforcement.

* * *

"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 incarcerated, after having been

sentenced by a court of competent jurisdiction, in a Federal,

State or county correctional facility or prison.

* * *

"Local agency." As follows:

(1) Any of the following:

[(1)] (i) Any political subdivision, intermediate

unit, charter school, cyber charter school or public

trade or vocational school.

[(2)] (ii) Any local, intergovernmental, regional or

municipal agency, authority, council, board, commission

or similar governmental entity. This subparagraph

includes an economic development authority and an

industrial development authority.

(iii) Any campus police department of a State-owned

or State-related college or university.

(2) The term does not include the following volunteer

organizations:

A04480 - 3 -

(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.

* * *

"Personal financial information." As follows:

(1) 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, State or local 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.

(2) The term does not include employer costs or

aggregated data of employee costs related to retirement

benefits, health care benefits or other benefits or the

disclosure of options made available to employees regarding

retirement benefits, health care benefits or other benefits.

* * *

"ROW OFFICE." THE OFFICE OF ATTORNEY GENERAL, THE DEPARTMENT

OF THE AUDITOR GENERAL OR THE TREASURY DEPARTMENT.

* * *

A04480 - 4 -

"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 location of the incident by way of 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.

* * *

"Vexatious requester." An individual whose sole intention in

filing a request is A person who, by the person's conduct,

demonstrates an intent to annoy or harass a local agency.

Section 2. Section 502 of the act is amended by adding a

subsection to read:

Section 502. Open-records officer.

* * *

agency shall register the agency's open-records officer with the

Office of Open Records in a manner prescribed by the Office of

A04480 - 5 -

Open Records.

Section 2.1. Section 503(d) of the act is amended by adding

a paragraph to read:

Section 503. Appeals officer.

* * *

(d) Law enforcement records and Statewide officials.--

* * *

(3) An appeals officer designated by a district attorney

under paragraph (2) shall have jurisdiction over an appeal

only insofar as it relates to access to criminal

investigative records in possession of a local agency. 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.

Section 3. Section 504(b)(1) of the act is amended to read:

Section 504. Regulations and policies.

* * *

(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 applicable, and email address.

* * *

Section 4. Section 505 of the act is amended by adding a

subsection to read:

Section 505. Uniform form.

* * *

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

A04480 - 6 -

(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 agencies and local

agencies shall be submitted in a manner approved by the

Office of Open Records.

Section 5. Sections 506(d)(1) and 507 of the act are amended

to read:

Section 506. Requests.

* * *

(d) Agency possession.--

(1) A public record 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, shall

be considered a public record of the agency for purposes of

this act. This paragraph shall apply to records of the

following volunteer organizations when the organization

contracts with a Commonwealth agency or local agency to

provide services , INCLUDING, BUT NOT LIMITED TO :

(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

A04480 - 7 -

emergency medical services.

* * *

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

$2,500 if an agency or public official, in violation of

paragraph (1), disposes of any potentially responsive record

in bad faith.

Section 6. 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

OR INMATE'S CASE if the disclosure of the record will not

diminish the safety or 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. Public records relating to the criminal

commitment of the inmate.

A04480 - 8 -

(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 MAY BE

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 7. Sections 703, 706 and 707(c) of the act are

amended to read:

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. [Employees of an

agency shall be directed to forward requests for records to the

open-records officer.] A written request should identify or

describe the records sought with sufficient specificity to

A04480 - 9 -

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 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 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.

* * *

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

A04480 - 10 -

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. This

paragraph does not apply to a transcript that is not part of

an adjudicatory proceeding.

(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.

Section 8. Section 708(b)(6)(i)(B), (7) introductory

paragraph and (iv), (9), (10), (13), (16), (17) and (18) and (c)

of the act are amended and subsection (b) is amended by adding a

paragraph 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:

* * *

(B) A spouse's or immediate family member's

name, marital status or beneficiary or dependent

information, including the number, names and ages of

an employee's dependents.

A04480 - 11 -

* * *

(7) The following records relating to [an agency

employee:] a current, past or prospective applicant for

employment or for legislative or gubernatorial appointment:

* * *

(iv) The [employment] application of an individual

who is not hired [by the agency.] or appointed by the

agency, General Assembly or Governor.

* * *

(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) at a public meeting, regardless

of whether a vote occurs or is scheduled to occur at the

meeting.

(10) As follows:

(i) A record that reflects:

(A) The internal, predecisional deliberations of

an agency, its members, employees [or], officials,

contractors or subcontractors or predecisional

deliberations between agency members, employees [or],

officials, contractors or subcontractors and members,

employees [or], officials, contractors or

subcontractors 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

A04480 - 12 -

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) shall apply to agencies

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

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

which is not otherwise exempt from access under this act

and which is presented to a quorum for deliberation in

accordance with 65 Pa.C.S. Ch. 7 shall be a public record

regardless of whether a vote occurs, or is scheduled to

occur 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.

* * *

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

personal financial information relating to, an individual who

of [an individual], or personal financial information

relating to, a person who lawfully makes a donation to or for

the benefit of an agency unless the donation is intended for

or restricted to providing remuneration or personal tangible

benefit to a named public official or employee of the agency,

including lists of potential donors compiled by an agency to

pursue donations, donor profile information or personal

identifying information relating to a donor.

A04480 - 13 -

* * *

(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.

(vii) This paragraph shall not apply to records

created more than 50 years prior to the request, unless

A04480 - 14 -

the agency can demonstrate actual harm to an ongoing

investigation if the records are released.

(vii) This paragraph shall not:

(A) Apply to records created more than 50 years

prior to the request, unless the agency can

demonstrate actual harm to an ongoing investigation

if the records are released.

(B) Establish any requirement that an agency

retain a record for any period of time not otherwise

required for retention by law.

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 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.

A04480 - 15 -

(iv) A record that includes information made

confidential by law.

(v) Work papers underlying an audit.

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

the following:

(A) Reveal the institution, progress or result

of an agency investigation, except the imposition of

a fine or civil penalty, the suspension, modification

or revocation of a license, permit, registration,

certification or similar authorization issued by an

agency or an executed settlement agreement unless the

agreement is determined to be confidential by a

court.

(B) Deprive a person of the right to an

impartial adjudication.

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 years prior to the request, unless

the agency can demonstrate actual harm to an ongoing

investigation if the records are released.

(vii) This paragraph shall not:

(A) Apply to records created more than 25 years

prior to the request, unless the agency can

demonstrate actual harm to an ongoing investigation

if the records are released.

A04480 - 16 -

(B) Establish any requirement that an agency

retain a record for any period of time not otherwise

required for retention by law.

(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.

* * *

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

routing numbers, credit card numbers, PIN numbers and

passwords.

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),

(13), (16) [or], (17), (28), (30) or (31). An agency shall not

disclose the identity of an individual performing an undercover

or covert law enforcement activity.

* * *

Section 9. Section 902(b)(2) of the act is amended to read:

Section 902. Extension of time.

* * *

(b) Notice.--

* * *

(2) The notice shall include a statement notifying the

A04480 - 17 -

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 allowed under

section 901, unless the requester has agreed in writing to an

additional extension beyond 30 days.

* * *

Section 10. The act is amended by adding a section to read:

Section 906. Relief from vexatious requesters.

(a) General rule.--In order to merit relief under this

section, a local agency shall be required to demonstrate clear

and convincing by a preponderance of the evidence that a

requester's sole intentions are to annoy or harass the local

agency. requester, by the requester's conduct, has demonstrated

an intent to annoy or harass the local agency by filing a

request or requests. A local agency may petition the Office of

Open Records for relief from an individual that the local agency

alleges is a vexatious requester. The petition shall:

(1) Be submitted under penalty of 18 Pa.C.S. § 4904

(relating to unsworn falsification to authorities).

(2) Be provided to the Office of Open Records and the

requester alleged to be a vexatious requester.

(3) Detail the conduct by the individual which the local

A04480 - 18 -

agency alleges demonstrates vexatiousness, including, as

appropriate:

(i) The number of requests filed.

(ii) The total number of pending requests.

(iii) The scope of the requests.

(iv) The nature, content, language or subject matter

of the requests.

(v) The nature, content, language or subject matter

of other oral and written communications to the local

agency.

(vi) Conduct that the local agency alleges is

placing an unreasonable burden on the local agency.

(vii) Conduct that the local agency alleges is

intended to harass the local agency.

(viii) Any other relevant information , including

relief sought or granted to other agencies against the

same individual .

(b) Exception.--A local agency may not petition the Office

of Open Records for relief under subsection (a) from an

individual employed by or connected who contracts with a

newspaper or magazine of general circulation, weekly

publication, press association or radio or television station

who submits a request for the purpose of news gathering or

dissemination in a newspaper, periodical, book, digital

publication or radio or television broadcast.

vexatious requester, all other proceedings and deadlines under

this act shall be stayed pending a resolution of the petition by

the Office of Open Records. The stay shall apply to any pending

or new requests by the alleged vexatious requester.

A04480 - 19 -

(d) Processing requests.--Upon receipt of a petition under

subsection (a), the executive director of the Office of Open

Records or the executive director's designee shall, within three

business days, notify the requester alleged to be a vexatious

requester that the requester may, within five business days,

file a preliminary response to the petition.

(D) PROCESSING REQUESTS.--UPON RECEIPT OF A PETITION UNDER

SUBSECTION (A), THE EXECUTIVE DIRECTOR OF THE OFFICE OF OPEN

RECORDS OR A DESIGNEE SHALL :

(1) WITHIN , within FIVE BUSINESS DAYS, NOTIFY THE

REQUESTER ALLEGED TO BE A VEXATIOUS REQUESTER THAT THE

REQUESTER MAY, WITHIN 10 BUSINESS DAYS, FILE A PRELIMINARY

RESPONSE TO THE PETITION.

(2) WITHIN 15 BUSINESS DAYS, INFORM THE AGENCY WHETHER

PENDING REQUESTS AND NEW REQUESTS FROM THE REQUESTER ALLEGED

TO BE A VEXATIOUS REQUESTER SHOULD CONTINUE TO BE PROCESSED

OR SHOULD BE STAYED PENDING RESOLUTION OF THE PROCEEDINGS

UNDER THIS SECTION. A DECISION UNDER THIS PARAGRAPH IS NOT

APPEALABLE.

(e) Initial finding.--The executive director or the

executive director's designee shall, within 30 calendar days

after receiving a petition under subsection (a), review the

petition and determine whether further proceedings are

warranted. The following shall apply:

(1) If the executive director or the executive

director's designee determines that further proceedings are

not warranted, the executive director or the executive

director's designee shall deny the petition. The denial shall

be in writing and include an explanation of the reasons for

the denial.

A04480 - 20 -

(2) If the executive director or the executive

director's designee determines that further proceedings are

warranted, the executive director or the executive director's

designee shall establish a briefing schedule to provide a

fair opportunity for the requester to respond to the local

agency's petition. The executive director or the executive

director's designee may admit into evidence testimony,

evidence and documents that the executive director or the

executive director's designee believes to be reasonably

probative and relevant. The executive director or the

executive director's designee may limit the nature and extent

of evidence found to be cumulative.

(f) Mediation.--At any time during proceedings under this

section, the executive director or the executive director's

designee may recommend that both parties participate in

mediation conducted by the Office of Open Records. If both

parties agree, the mediation shall last for a period of up to 30

calendar days. During the mediation, any other proceedings under

this section shall be stayed.

(g) Final opinion.--The executive director or the executive

director's designee shall issue a final opinion either granting

or denying the petition within 90 calendar days of its filing.

Upon a grant of the petition, the executive director or the

executive director's designee may provide appropriate relief

commensurate with the vexatious conduct, including an order that

the local agency need not comply with future requests from the

vexatious requester for a specified period of time , but , a fine

or civil penalty commensurate with the burden placed on the

local agency due to the vexatious conduct, or both. The period

may not to exceed one year for the first instance an individual

A04480 - 21 -

is determined to be a vexatious requester . The final opinion

shall be posted on the Office of Open Record's publicly

accessible Internet website.

(h) Appeal to Commonwealth Court.--Any party aggrieved by a

decision made under this section may appeal the decision to the

Commonwealth Court within 15 calendar days.

Section 11. Sections 1101, 1102, 1304(a) and 1305 of the act

are amended to read:

Section 1101. Filing of appeal.

(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] 30 days of the [mailing] postmark or

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

business] 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.] provide a succinct statement of the grounds

upon which the appeal is based and include all of the

following:

(A) The text of the original request.

(B) The text of the agency denial.

to be relevant.

(iii) The Office of Open Records shall provide a

A04480 - 22 -

form on its publicly accessible Internet website that may

be used by the requester to file the appeal. The form

under this subparagraph may also be used to file an

appeal with a legislative agency or judicial agency.

(iv) The Office of Open Records may order a

requester who fails to include the information under

subparagraph (ii) to provide the required information.

(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 up to

120 additional days.

(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), (1.1) or (1.2),

the appeal is deemed denied.

(3) Prior to issuing a final determination, a hearing

may be conducted. The determination by the appeals officer

A04480 - 23 -

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 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. 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) (5) 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, but response times or

deadlines under this act shall be considered from the date of

the transfer to the appeals officer with jurisdiction.

(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

A04480 - 24 -

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.

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

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

A04480 - 25 -

of Open Records or other agency.

(5) For a Commonwealth agency OTHER THAN A ROW OFFICE or

local agency local agency or an agency for which the Office

of Open Records designates an appeals officer under section

503(a) , 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.

Commonwealth agency OTHER THAN A ROW OFFICE or local agency

A04480 - 26 -

local agency or an agency for which the Office of Open Records

designates an appeals officer under section 503(a) submit a

record and a privilege or exemption log for the purpose of

conducting an in-camera review to determine if the record is a

public record.

Section 1304. Court costs and attorney fees.

(a) Reversal of agency determination.--[If a court reverses

the final determination or response of the appeals officer or if

a court or appeals officer grants access to a record after a

request for access was deemed denied, the] The court or appeals

officer may award reasonable attorney fees and costs of

litigation or an appropriate portion thereof to a requester if

the court or appeals officer finds either of the following:

(1) the agency receiving the original request willfully

or with wanton disregard deprived the requester of access to

a public record subject to access or otherwise acted in bad

faith under the provisions of this act; or

(2) the exemptions, exclusions or defenses asserted by

the agency in its final determination or response were not

based on a reasonable interpretation of law.

* * *

Section 1305. Civil penalty.

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

not more than [$1,500] $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

A04480 - 27 -

records are provided].

penalty of not more than $2,500 if an agency or public official,

in violation of subsection (a), disposes of any potentially

responsive record in bad faith.

Section 12. Section 1307 of the act is amended by adding a

subsection SUBSECTIONS 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.

* * *

(I) RECORDS TO BE USED FOR A COMMERCIAL PURPOSE.--THE

FOLLOWING APPLY:

(1) IN RESPONDING TO A REQUEST FOR RECORDS THAT WILL BE

USED FOR A COMMERCIAL PURPOSE, AN AGENCY MAY CHARGE A

REQUESTER ADDITIONAL STANDARD FEES FOR THE SEARCH, RETRIEVAL,

REVIEW, REDACTION AND DUPLICATION OF THE RECORDS. THE FEES

SHALL BE CALCULATED AT NO MORE THAN THE HOURLY WAGE OF THE

LOWEST-PAID PUBLIC EMPLOYEE OF THE AGENCY WHO IS CAPABLE OF

A04480 - 28 -

SEARCHING, RETRIEVING, REVIEWING, REDACTING OR DUPLICATING

THE INFORMATION NECESSARY TO COMPLY WITH THE REQUEST.

(2) PRIOR TO GRANTING A COMMERCIAL REQUEST, THE AGENCY,

UPON REQUEST, SHALL PROVIDE THE REQUESTER WITH AN ESTIMATE OF

THE FEES TO BE INCURRED BY THE AGENCY IN FULFILLING THE

REQUEST.

(3) PARAGRAPH (1) SHALL NOT APPLY TO THE FOLLOWING:

(I) A REQUEST FOR RECORDS SUBJECT TO THE FEES UNDER

SUBSECTION (B)(4).

(II) A REQUEST FOR RECORDS SUBJECT TO FEES

ESTABLISHED IN LAWS OR REGULATIONS OF THIS COMMONWEALTH

NOT SUBJECT TO THIS ACT.

(III) A REQUEST FOR RECORDS FROM AN ATTORNEY ON

BEHALF OF A CLIENT IF RECORDS ARE NOT OBTAINED FOR THE

PURPOSE OF SELLING, RESELLING OR SOLICITATION BY THE

ATTORNEY OR THE CLIENT OR USED BY THE CLIENT FOR A

COMMERCIAL PURPOSE.

(J) ALTERNATIVE FEE ARRANGEMENT.--AN AGENCY AND A REQUESTER

MAY ENTER INTO A CONTRACT, MEMORANDUM OF UNDERSTANDING OR OTHER

AGREEMENT THAT PROVIDES AN ALTERNATIVE FEE ARRANGEMENT TO THE

FEES AUTHORIZED UNDER THIS SECTION. AN AGREEMENT UNDER THIS

SUBSECTION SHALL BE PUBLIC.

(K) APPEALS.--A FEE CHARGED UNDER THIS SECTION by a local

agency or an agency for which the Office of Open Records

designates an appeals officer under section 503(a) MAY BE

APPEALED TO THE OFFICE OF OPEN RECORDS.

Section 13. Sections 1310 and 3101.1 of the act are amended

to read:

Section 1310. Office of Open Records.

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

A04480 - 29 -

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

disputes under this act.

(7) Establish an Internet website with information

A04480 - 30 -

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.

(e) Duties.--

(1) The executive director shall ensure that the duties

A04480 - 31 -

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 14. This act shall take effect in 30 days.

A04480 - 32 -