PRIOR PRINTER'S NOS. 772, 1509, 1553 PRINTER'S NO. 1562
No. 1 Session of 2007
INTRODUCED BY PILEGGI, SCARNATI, MELLOW, ORIE, KASUNIC, MUSTO, RAFFERTY, O'PAKE, TOMLINSON, M. WHITE, ERICKSON, WAUGH, FOLMER, COSTA, EARLL, VANCE, BOSCOLA, CORMAN, WONDERLING, GORDNER, RHOADES, D. WHITE, PIPPY, MADIGAN, ARMSTRONG, BAKER, C. WILLIAMS, BRUBAKER, BROWNE, REGOLA, DINNIMAN AND EICHELBERGER, MARCH 29, 2007
AS AMENDED ON SECOND CONSIDERATION, NOVEMBER 19, 2007
AN ACT 1 Providing for access to public information, for a designated 2 open-records officer in each Commonwealth agency, local 3 agency, judicial agency and legislative agency, for 4 procedure, for appeal of agency determination, for judicial 5 review and for an Open Records Clearinghouse; imposing 6 penalties; providing for reporting by State-related 7 institutions; requiring the posting of certain State contract 8 information on the Internet; and making related repeals. 9 TABLE OF CONTENTS 10 Chapter 1. Preliminary Provisions 11 Section 101. Short title. 12 Section 102. Definitions. 13 Chapter 3. Requirements and Prohibitions 14 Section 301. Commonwealth agencies. 15 Section 302. Local agencies. 16 Section 303. Legislative agencies. 17 Section 304. Judicial agencies. 18 Section 305. Presumption. 19 Section 306. Nature of document.
1 Chapter 5. Access 2 Section 501. Scope of chapter. 3 Section 502. Open-records officer. 4 Section 503. Appeals officer. 5 Section 504. Regulations and policies. 6 Section 505. Uniform form. 7 Section 506. Requests. 8 Section 507. Retention of records. 9 Chapter 7. Procedure 10 Section 701. Access to public records. 11 Section 702. Requests. 12 Section 703. Written requests. 13 Section 704. Electronic access. 14 Section 705. Creation of record. 15 Section 706. Redaction. 16 Section 707. Production of certain records. 17 Section 708. Exceptions for public records. 18 Chapter 9. Agency Response 19 Section 901. General rule. 20 Section 902. Extension of time. 21 Section 903. Denial. 22 Section 904. Certified copies. 23 Chapter 11. Appeal of Agency Determination 24 Section 1101. Filing of appeal. 25 Section 1102. Appeals officers. 26 Chapter 13. Judicial Review 27 Section 1301. Commonwealth agencies, legislative agencies and 28 judicial agencies. 29 Section 1302. Local agencies. 30 Section 1303. Notice and records. 20070S0001B1562 - 2 -
1 Section 1304. Court costs and attorney fees. 2 Section 1305. Penalties. 3 Section 1306. Immunity. 4 Section 1307. Fee limitations. 5 Section 1308. Prohibition. 6 Section 1309. Practice and procedure. 7 Section 1310. Clearinghouse. 8 Chapter 15. State-Related Institutions 9 Section 1501. Definition. 10 Section 1502. Reporting. 11 Section 1503. Contents of report. 12 Section 1504. Copies and posting. 13 Chapter 17. State Contract Information 14 Section 1701. Submission and retention of contracts. 15 Section 1702. Public availability of contracts. 16 Chapter 31. Miscellaneous Provisions 17 Section 3101. Applicability. 18 Section 3102. Repeals. 19 Section 3103. Effective date. 20 The General Assembly of the Commonwealth of Pennsylvania 21 hereby enacts as follows: 22 CHAPTER 1 23 PRELIMINARY PROVISIONS 24 Section 101. Short title. 25 This act shall be known and may be cited as the Right-to-Know 26 Law. 27 Section 102. Definitions. 28 The following words and phrases when used in this act shall 29 have the meanings given to them in this section unless the 30 context clearly indicates otherwise: 20070S0001B1562 - 3 -
1 "ADMINISTRATIVE PROCEEDING." A PROCEEDING BY AN AGENCY THE <-- 2 OUTCOME OF WHICH IS REQUIRED TO BE BASED ON A RECORD OR 3 DOCUMENTATION PRESCRIBED BY LAW OR IN WHICH A STATUTE OR 4 REGULATION IS PARTICULARIZED IN APPLICATION TO INDIVIDUALS. THE 5 TERM INCLUDES AN APPEAL. 6 "Agency." A Commonwealth agency, a local agency, a judicial 7 agency or a legislative agency. 8 "Aggregated data." A tabulation of data which relate to 9 broad classes, groups or categories so that it is not possible 10 to distinguish the properties of individuals within those 11 classes, groups or categories. 12 "Appeals officer." As follows: 13 (1) For a Commonwealth agency or a local agency, the 14 appeals officer designated under section 503(a). 15 (2) For a judicial agency, the individual designated 16 under section 503(b). 17 (3) For a legislative agency, the individual designated 18 under section 503(c). 19 "Clearinghouse." The Open Records Clearinghouse established 20 pursuant to the provisions of section 1310. 21 "Commonwealth agency." Any of the following: 22 (1) Any office, department, authority, board, multistate 23 agency or commission of the executive branch; an independent 24 agency; and a State-affiliated entity. The term includes: 25 (i) The Governor's Office. 26 (ii) The Office of Attorney General, the Department 27 of the Auditor General and the Treasury Department. 28 (iii) A statutorily established organization which 29 performs or is intended to perform an essential 30 governmental function. 20070S0001B1562 - 4 -
1 (2) The term does not include a judicial or legislative 2 agency. 3 "Confidential proprietary information." Commercial or 4 financial information received by an agency: 5 (1) which is privileged or confidential; and 6 (2) the disclosure of which would cause substantial harm 7 to the competitive position of the person that submitted the 8 information. 9 "Financial record." Includes: 10 (1) Any account, voucher or contract dealing with: 11 (i) the receipt or disbursement of funds by an 12 agency; or 13 (ii) an agency's acquisition, use or disposal of 14 services, supplies, materials, equipment or property. 15 (2) The salary or other payments or expenses paid to an 16 officer or employee of an agency, including the name and 17 title of the officer or employee. 18 (3) Results of a financial audit. 19 "Homeland security." Governmental actions designed to 20 prevent, detect, respond to and recover from acts of terrorism, 21 major disasters and other emergencies, whether natural or 22 manmade. The term includes activities relating to the following: 23 (1) emergency preparedness and response, including 24 preparedness and response activities by volunteer medical, 25 police, emergency management, hazardous materials and fire 26 personnel; 27 (2) intelligence activities; 28 (3) critical infrastructure protection; 29 (4) border security; 30 (5) ground, aviation and maritime transportation 20070S0001B1562 - 5 -
1 security; 2 (6) biodefense; 3 (7) detection of nuclear and radiological materials; and 4 (8) research on next-generation securities technologies. 5 "Independent agency." Any board, commission or other agency 6 or officer of the Commonwealth, that is not subject to the 7 policy supervision and control of the Governor. The term does 8 not include a legislative or judicial agency. 9 "Judicial agency." A court of the Commonwealth or any other 10 entity or office of the unified judicial system. 11 "Legislative agency." Any of the following: 12 (1) The Senate. 13 (2) The House of Representatives. 14 (3) The Capitol Preservation Committee. 15 (4) The Center for Rural Pennsylvania. 16 (5) The Joint Legislative Air and Water Pollution 17 Control and Conservation Committee. 18 (6) The Joint State Government Commission. 19 (7) The Legislative Budget and Finance Committee. 20 (8) The Legislative Data Processing Committee. 21 (9) The Independent Regulatory Review Commission. 22 (10) The Legislative Reference Bureau. 23 (11) The Local Government Commission. 24 (12) The Pennsylvania Commission on Sentencing. 25 "Legislative record." Includes the following information 26 relating to a legislative agency or standing committee: 27 (1) A financial record. 28 (2) A bill or resolution that has been introduced and 29 amendments offered thereto in committee or in legislative 30 session, including resolutions to adopt or amend the rules of 20070S0001B1562 - 6 -
1 a chamber. 2 (3) Fiscal notes. 3 (4) A cosponsorship memorandum. 4 (5) The journal of a chamber. 5 (6) The minutes of a public committee meeting. 6 (7) The transcript of a public hearing when available. 7 (8) The record of attendance of members at a committee 8 meeting. 9 (9) The rules of a chamber. 10 (10) A record of all recorded votes taken in a committee 11 meeting or legislative session. 12 (11) Any administrative staff manuals or written 13 policies. 14 (12) An audit prepared pursuant to the act of June 30, 15 1970 (P.L.442, No.151) entitled, "An act implementing the 16 provisions of Article VIII, section 10 of the Constitution of 17 Pennsylvania, by designating the Commonwealth officers who 18 shall be charged with the function of auditing the financial 19 transactions after the occurrence thereof of the Legislative 20 and Judicial branches of the government of the Commonwealth, 21 establishing a Legislative Audit Advisory Commission, and 22 imposing certain powers and duties on such commission." 23 (13) Final or annual reports required by law to be 24 submitted to the General Assembly. 25 (14) Legislative Budget and Finance Committee reports. 26 (15) Marked calendars. 27 "Local agency." Any of the following: 28 (1) Any political subdivision, intermediate unit, 29 charter school or public trade or vocational school. 30 (2) Any local, intergovernmental, regional or municipal 20070S0001B1562 - 7 -
1 agency, authority, council, board, commission or similar 2 governmental entity. 3 "Personal financial information." An individual's personal 4 credit, charge or debit card information; bank account 5 information; bank, credit or financial statements; account or 6 PIN numbers and other information relating to an individual's 7 personal finances. 8 "Privilege." The attorney-work product doctrine, the 9 attorney-client privilege, the doctor-patient privilege or other 10 privilege recognized by a court interpreting the laws of this 11 Commonwealth. 12 "Public record." A record of a Commonwealth or local agency 13 that: 14 (1) is not exempt under section 708; 15 (2) is not exempt from being disclosed under any other 16 Federal or State law or regulation or judicial order or 17 decree; or 18 (3) is not protected by a privilege. 19 "Record." Information, regardless of physical form or 20 characteristics, that documents a transaction or activity of an 21 agency and that is created, received or retained pursuant to law 22 or in connection with a transaction, business or activity of the 23 agency. The term includes a document, paper, letter, map, book, 24 tape, photograph, film or sound recording, information stored or 25 maintained electronically and a data-processed or image- 26 processed document. The term includes a financial record, a 27 legislative record and a public record. 28 "Requester." A person that is a resident of the United 29 States and requests a record pursuant to this act. The term 30 includes a political subdivision. 20070S0001B1562 - 8 -
1 "Response." Access to a record or an agency's written notice 2 granting, denying or partially granting and partially denying 3 access to a record. 4 "Social services." Cash assistance and other welfare 5 benefits, medical, mental and other health care services, drug 6 and alcohol treatment, adoption services, vocational and 7 occupational training, education services, counseling services, 8 workers' compensation services and unemployment compensation 9 services, foster care services and services for victims of 10 crimes. 11 "State-affiliated entity." A Commonwealth authority or 12 Commonwealth entity. The term includes the Pennsylvania Higher 13 Education Assistance Agency, the Pennsylvania Housing Finance 14 Agency, the Pennsylvania Municipal Retirement Board, the State 15 System of Higher Education, a community college, the 16 Pennsylvania Turnpike Commission, the Pennsylvania Public 17 Utility Commission, the Pennsylvania Infrastructure Investment 18 Authority, the State Public School Building Authority, the 19 Pennsylvania Interscholastic Athletic Association and the 20 Pennsylvania Educational Facilities Authority. The term does not 21 include a State-related institution. 22 "Terrorist act." A violent or life-threatening act that 23 violates the criminal laws of the United States or any state and 24 appears to be intended to: 25 (1) intimidate or coerce a civilian population; 26 (2) influence the policy of a government; or 27 (3) affect the conduct of a government by mass 28 destruction, assassination or kidnapping. 29 "Trade secret." Information, including a formula, drawing, 30 pattern, compilation, including a customer list, program, 20070S0001B1562 - 9 -
1 device, method, technique or process that: 2 (1) derives independent economic value, actual or 3 potential, from not being generally known to and not being 4 readily ascertainable by proper means by other persons who 5 can obtain economic value from its disclosure or use; and 6 (2) is the subject of efforts that are reasonable under 7 the circumstances to maintain its secrecy. 8 The term includes data processing software obtained by an agency 9 under a licensing agreement prohibiting disclosure. 10 CHAPTER 3 11 REQUIREMENTS AND PROHIBITIONS 12 Section 301. Commonwealth agencies. 13 (a) Requirement.--A Commonwealth agency shall provide public 14 records in accordance with this act. 15 (b) Prohibition.--A Commonwealth agency may not deny a 16 requester access to a public record due to the intended use of 17 the public record by the requester. 18 Section 302. Local agencies. 19 (a) Requirement.--A local agency shall provide public 20 records in accordance with this act. 21 (b) Prohibition.--A local agency may not deny a requester 22 access to a public record due to the intended use of the public 23 record by the requester. 24 Section 303. Legislative agencies. 25 (a) Requirement.--A legislative agency shall provide 26 legislative records in accordance with this act. 27 (b) Prohibition.--A legislative agency may not deny a 28 requester access to a legislative record due to the intended use 29 of the legislative record by the requester. 30 Section 304. Judicial agencies. 20070S0001B1562 - 10 -
1 (a) Requirement.--A judicial agency shall provide financial 2 records in accordance with this act. 3 (b) Prohibition.--A judicial agency may not deny a requester 4 access to a financial record due to the intended use of the 5 financial record by the requester. 6 Section 305. Presumption. 7 A record in the possession of a Commonwealth agency or local 8 agency shall be presumed to be a public record unless: 9 (1) the record is exempt under section 708; 10 (2) the record is protected by a privilege; or 11 (3) the record is exempt from disclosure under any other 12 Federal or State law or regulation or judicial order or 13 decree. 14 Section 306. Nature of document. 15 Nothing in this act shall supersede or modify the public or 16 confidential nature of a record or document established in 17 Federal or State statute or law, regulation or judicial order or 18 decree. 19 CHAPTER 5 20 ACCESS 21 Section 501. Scope of chapter. 22 This chapter applies to all agencies. 23 Section 502. Open-records officer. 24 (a) Establishment.-- 25 (1) An agency shall designate an official or employee to 26 act as the open-records officer. 27 (2) For a legislative agency other than the Senate or 28 the House of Representatives, the open-records officer 29 designated by the Legislative Reference Bureau shall serve as 30 the open-records officer. 20070S0001B1562 - 11 -
1 (b) Functions.-- 2 (1) The open-records officer shall receive requests 3 submitted to the agency under this act, direct requests to 4 other appropriate persons within the agency OR TO APPROPRIATE <-- 5 PERSONS IN ANOTHER AGENCY, track the agency's progress in 6 responding to requests and issue interim and final responses 7 under this act. 8 (2) Upon receiving a request for a public record, 9 legislative record or financial record, the open-records 10 officer shall do all of the following: 11 (i) Note the date of receipt on the written request. 12 (ii) Compute the day on which the five-day period 13 under section 901 will expire and make a notation of that 14 date on the written request. 15 (iii) Maintain an electronic or paper copy of a 16 written request, including all documents submitted with 17 the request until the request has been fulfilled. If the 18 request is denied, the written request shall be 19 maintained for 30 days or, if an appeal is filed, until a 20 final determination is issued under section 1101(b) or 21 the appeal is deemed denied. 22 (iv) Create a file for the retention of the original 23 request, a copy of the response, a record of written 24 communications with the requester and a copy of other 25 communications. THIS SUBPARAGRAPH SHALL ONLY APPLY TO <-- 26 COMMONWEALTH AGENCIES. 27 Section 503. Appeals officer. 28 (a) Commonwealth agencies and local agencies.--Except as 29 provided in subsection (d), the clearinghouse established under 30 section 1310 shall designate an appeals officer under section 20070S0001B1562 - 12 -
1 1101(a)(2) for all: 2 (1) Commonwealth agencies; and 3 (2) local agencies. 4 (b) Judicial agencies.--A judicial agency shall designate an 5 appeals officer to hear appeals under Chapter 11. 6 (c) Legislative agencies.-- 7 (1) Except as set forth in paragraph (2), the 8 Legislative Reference Bureau shall designate an appeals 9 officer to hear appeals under Chapter 11 for all legislative 10 agencies. 11 (2) Each of the following shall designate an appeals 12 officer to hear appeals under Chapter 11: 13 (i) The Senate. 14 (ii) The House of Representatives. 15 (d) Law enforcement records and Statewide officials.-- 16 (1) The Attorney General, State Treasurer and Auditor 17 General shall each designate an appeals officer to hear 18 appeals under Chapter 11. 19 (2) The district attorney of a county shall designate an 20 appeals officer to hear appeals under Chapter 11 relating to 21 access to criminal investigative records in possession of a 22 local agency of that county. The appeals officer designated 23 by the district attorney shall determine if the record 24 requested is a criminal investigative record. 25 Section 504. Regulations and policies. 26 (a) Authority.--An agency may promulgate regulations, rules 27 or policies necessary for the agency to implement this act. The 28 clearinghouse may promulgate regulations relating to appeals 29 involving a Commonwealth agency or local agency. 30 (b) Posting.--The following information shall be posted at 20070S0001B1562 - 13 -
1 each agency and, if the agency maintains an Internet website, on 2 the agency's Internet website: 3 (1) Contact information for the open-records officer. 4 (2) Contact information for the clearinghouse or other 5 applicable appeals officer. 6 (3) A form which may be used to file a request. 7 (4) Rules, regulations, policies and procedures of the 8 agency relating to this act. 9 Section 505. Uniform form. 10 (a) Commonwealth agencies.--The clearinghouse shall develop 11 a uniform form which shall be accepted by all Commonwealth and 12 local agencies in addition to any form used by the agency to 13 file a request under this act. The uniform form shall be 14 published in the Pennsylvania Bulletin and on the 15 clearinghouse's Internet website. 16 (b) Judicial agencies.--A judicial agency may develop a form 17 to request financial records or may use a form developed by the 18 Administrative Office of Pennsylvania Courts or the 19 clearinghouse. 20 (c) Legislative agencies.--A legislative agency may develop 21 a form to request legislative records or may use the form 22 developed by the clearinghouse. 23 Section 506. Requests. 24 (a) Disruptive requests.-- 25 (1) An agency may deny a requester access to a record if 26 the requester has made repeated requests for that same record 27 which requests have placed an unreasonable burden on the 28 agency. 29 (2) A denial under this subsection shall not restrict 30 the ability to request a different record. 20070S0001B1562 - 14 -
1 (b) Disaster or potential damage.-- 2 (1) An agency may deny a requester access: 3 (i) when timely access is not possible due to fire, 4 flood or other disaster; or 5 (ii) to historical, ancient or rare documents, 6 records, archives and manuscripts when access may, in the 7 professional judgment of the curator or custodian of 8 records, cause physical damage or irreparable harm to the 9 record. 10 (2) To the extent possible, the contents of a record 11 under this subsection shall be made accessible to a requester 12 even when the record is physically unavailable. 13 (c) Agency discretion.--An agency may exercise its 14 discretion to make any otherwise exempt record accessible for 15 inspection and copying under this chapter, if all of the 16 following apply: 17 (1) Disclosure of the record is not prohibited under any 18 of the following: 19 (i) Federal or State law or regulation. 20 (ii) Judicial order or decree. 21 (2) The record is not protected by a privilege. 22 (3) The agency head determines that the public interest 23 favoring access outweighs any individual, agency or public 24 interest that may favor restriction of access. 25 (d) Agency possession.-- 26 (1) A public record that is not in the possession of an 27 agency but is in the possession of a party with whom the 28 agency has contracted to perform a governmental function for 29 the agency, and which directly relates to the governmental 30 function and is not exempt under section 305, shall be 20070S0001B1562 - 15 -
1 considered a public record of the agency for purposes of this 2 act. 3 (2) Nothing in this act shall be construed to require 4 access to any other PUBLIC record of the party in possession <-- 5 of the record. 6 (3) A request for a PUBLIC record in possession of a <-- 7 party other than the agency shall be submitted to the open 8 records officer of the agency. The open records officer shall 9 assess the duplication fee established under section 1307(b) 10 and remit the fee to the party in possession of the record if 11 the party duplicated the record. 12 Section 507. Retention of records. 13 Nothing in this act shall be construed to modify, rescind or 14 supersede any record retention disposition schedule of an agency 15 established pursuant to law, regulation, policy or other 16 directive. 17 CHAPTER 7 18 PROCEDURE 19 Section 701. Access to public records. 20 (a) General rule.--Unless otherwise provided by law, a 21 public record, legislative record or financial record shall be 22 accessible for inspection and duplication in accordance with 23 this act. A record shall be provided to a requester in the 24 medium requested if the public record exists in that medium; 25 otherwise, it shall be provided in the medium in which it 26 exists. Public records, legislative records or financial records 27 shall be available for access during the regular business hours 28 of an agency. 29 (b) Construction.--Nothing in this act shall be construed to 30 require access to the computer of an agency or individual 20070S0001B1562 - 16 -
1 employee of an agency. 2 Section 702. Requests. 3 Agencies may fulfill informal verbal, written or anonymous 4 verbal or written requests for access to records under this act. 5 In the event that the requester wishes to pursue the relief and 6 remedies provided for in this act, the requester must initiate 7 such relief with a written request. 8 Section 703. Written requests. 9 A written request for access to records may be submitted in 10 person, by mail, by e-mail, by facsimile or, to the extent 11 provided by agency rules, any other electronic means. A written 12 request shall be addressed to the agency head or open-records 13 officer designated in section 502. A written request should 14 identify or describe the records sought with sufficient 15 specificity to enable the agency to ascertain which records are 16 being requested and shall include the name and address to which 17 the agency should address its response. A written request need 18 not include any explanation of the requester's reason for 19 requesting or intended use of the records. 20 Section 704. Electronic access. 21 (a) General rule.--In addition to the requirements of 22 section 701, an agency may make its records available through 23 any publicly accessible electronic means. 24 (b) Response.-- 25 (1) In addition to the requirements of section 701, an 26 agency may respond to a request by notifying the requester 27 that the record is available through publicly accessible 28 electronic means or that the agency will provide access to 29 inspect the record electronically. 30 (2) If the requester is unwilling or unable to use the 20070S0001B1562 - 17 -
1 electronic access, the requester may submit a written request 2 to the agency, within 30 days following receipt of the agency 3 notification, to have the record converted to paper. The 4 agency shall provide the record in printed form within five 5 days of the receipt of the written request for conversion to 6 paper. 7 Section 705. Creation of record. 8 When responding to a request for access, an agency shall not 9 be required to create a record which does not currently exist or 10 to compile, maintain, format or organize a record in a manner in 11 which the agency does not currently compile, maintain, format or 12 organize the record. 13 Section 706. Redaction. 14 If an agency determines that a public record, legislative 15 record or financial record contains information which is subject 16 to access as well as information which is not subject to access 17 under section 305 or 708, the agency's response shall grant 18 access to the information which is subject to access and deny 19 access to the information which is not subject to access. If the 20 information which is not subject to access is an integral part 21 of the public record, legislative record or financial record and 22 cannot be separated, the agency shall redact from the record the 23 information which is not subject to access, and the response 24 shall grant access to the information which is subject to 25 access. The agency may not deny access to the record if the 26 information which is not subject to access is able to be 27 redacted. Information which an agency redacts in accordance with 28 this subsection shall be deemed a denial under Chapter 9. 29 Section 707. Production of certain records. 30 (a) General rule.--If, in response to a request, an agency 20070S0001B1562 - 18 -
1 produces a record that is not a public record, legislative 2 record or financial record, the agency shall notify any third 3 party that provided the record to the agency, the person that is 4 the subject of the record and the requester. 5 (b) Requests for trade secrets.--An agency shall notify a 6 third party of a request for a record if the third party 7 provided the record and included a written statement signed by a 8 representative of the third party that the record contains a 9 trade secret or confidential proprietary information. 10 Notification shall be provided within five business days of 11 receipt of the request for the record. The third party shall 12 have five business days from receipt of notification from the 13 agency to provide input on the release of the record. The agency 14 shall deny the request for the record or release the record 15 within ten business days of the provision of notice to the third 16 party and shall notify the third party of the decision. 17 (C) TRANSCRIPTS.-- <-- 18 (1) EXCEPT AS SET FORTH IN PARAGRAPH (2), A TRANSCRIPT 19 OF AN ADMINISTRATIVE PROCEEDING SHALL NOT BECOME A PUBLIC 20 RECORD UNTIL THE FINAL ADJUDICATION. 21 (2) TRANSCRIPTS SHALL BE PROVIDED TO PARTIES AND THEIR 22 ATTORNEYS PRIOR TO FINAL ADJUDICATION BY THE AGENCY 23 STENOGRAPHER OR A COURT REPORTER, IN ACCORDANCE WITH AGENCY 24 PROCEDURE OR AN APPLICABLE CONTRACT. 25 Section 708. Exceptions for public records. 26 (a) Burden of proof.--The burden of proving that a public 27 record is exempt from public access shall be on the Commonwealth 28 or local agency receiving a request by a preponderance of the 29 evidence. 30 (b) Exceptions.--In the case of a public record, unless 20070S0001B1562 - 19 -
1 disclosure is otherwise required by law, the following are 2 exempt from access by a requester under this act: 3 (1) A record the disclosure of which: 4 (i) would result in the loss of Federal or State 5 funds by an agency or the Commonwealth; or 6 (ii) would be reasonably likely to result in a 7 substantial and demonstrable risk of physical harm to an 8 individual. 9 (2) A record maintained by an agency in connection with 10 the military, homeland security, national defense, law 11 enforcement or other public safety activity that if disclosed 12 would be reasonably likely to jeopardize or threaten public 13 safety or preparedness or public protection activity or a 14 record that is designated classified by an appropriate 15 Federal or State military authority. 16 (3) A record, the disclosure of which creates a 17 reasonable likelihood of endangering the life, safety or the 18 physical security of a building, public utility, resource, 19 infrastructure, facility or information storage system, which 20 may include: 21 (i) documents or data relating to computer hardware, 22 source files, software and system networks that could 23 jeopardize computer security by exposing a vulnerability 24 in preventing, protecting against, mitigating or 25 responding to a terrorist act; 26 (ii) lists of infrastructure, resources and 27 significant special events, including those defined by 28 the Federal Government in the National Infrastructure 29 Protections, which are deemed critical due to their 30 nature and which result from risk analysis; threat 20070S0001B1562 - 20 -
1 assessments; consequences assessments; antiterrorism 2 protective measures and plans; counterterrorism measures 3 and plans; and security and response needs assessments; 4 and 5 (iii) building plans or infrastructure records that 6 expose or create vulnerability through disclosure of the 7 location, configuration or security of critical systems, 8 including public utility systems, structural elements, 9 technology, communication, electrical, fire suppression, 10 ventilation, water, wastewater, sewage and gas systems. 11 (4) A record regarding computer hardware, software and 12 networks, including administrative or technical records, 13 which, if disclosed, would be reasonably likely to jeopardize 14 computer security. 15 (5) A record of an individual's medical, psychiatric or 16 psychological history or disability status, including 17 evaluation, consultation, a prescription, diagnosis or 18 treatment; results of tests, including drug tests; enrollment 19 in a health care program or program designed for 20 participation by persons with disabilities, including 21 vocation rehabilitation, workers' compensation and 22 unemployment compensation; or related information that would 23 disclose individually identifiable health information. 24 (6) (i) The following personal identification 25 information: 26 (A) A record containing all or part of an 27 individual's Social Security number; driver's license 28 number; personal financial information of an 29 individual; home, cellular or personal telephone 30 number; personal e-mail address; employee number; 20070S0001B1562 - 21 -
1 other personal identification number. 2 (B) A spouse's name; marital status, beneficiary 3 or dependent information. 4 (ii) Nothing in this paragraph shall preclude the 5 release of the name, position, salary, actual 6 compensation or other payments or expenses, employment 7 contract or agreement and length of service of a public 8 official or an agency employee. 9 (iii) An agency may redact the name or other 10 identifying information relating to an individual 11 performing an undercover or covert law enforcement 12 activity from a record. 13 (7) The following records relating to an agency 14 employee: 15 (i) A letter of reference or recommendation 16 pertaining to the character or qualifications of an 17 identifiable individual, unless it was prepared in 18 relation to the appointment of an individual to fill a 19 vacancy in an elected office or an appointed office 20 requiring Senate confirmation. 21 (ii) A performance rating or review. 22 (iii) The result of a civil service or similar test 23 administered by a Commonwealth agency, legislative agency 24 or judicial agency. The result of a civil service or 25 similar test administered by a local agency shall not be 26 disclosed if restricted by a collective bargaining 27 agreement. Only test scores of individuals who obtained a 28 passing score on a test administered by a local agency 29 may be disclosed. 30 (iv) The employment application of an individual who 20070S0001B1562 - 22 -
1 is not hired by the agency. 2 (v) Workplace support services program information. 3 (vi) Written criticisms of an employee. 4 (vii) Grievance material, including documents 5 related to discrimination or sexual harassment. 6 (viii) (A) Information regarding discipline, 7 demotion or discharge contained in a personnel file. 8 (B) This subparagraph shall not apply to the 9 final action of an agency that results in demotion or 10 discharge. 11 (8) (i) A record pertaining to strategy or negotiations 12 relating to labor relations or collective bargaining or 13 arbitration award. 14 (ii) This paragraph does not apply to any final or 15 executed contract or agreement or arbitration award 16 between the parties. 17 (9) The draft of a bill, resolution, regulation, 18 statement of policy, management directive, ordinance or 19 amendment thereto prepared by or for an agency. 20 (10) (i) A record that reflects: 21 (A) The internal, predecisional deliberations of 22 an agency, its members, employees or officials or 23 predecisional deliberations between agency members, 24 employees or officials and members, employees or 25 officials of another agency, including predecisional 26 deliberations relating to a budget recommendation, 27 legislative proposal, legislative amendment, 28 contemplated or proposed policy or course of action 29 or any research, memos or other documents used in the 30 predecisional deliberations. 20070S0001B1562 - 23 -
1 (B) The strategy to be used to develop or 2 achieve the successful adoption of a budget, 3 legislative proposal or regulation. 4 (ii) This paragraph applies to: 5 (A) The Governor's Office, the head of a 6 Commonwealth agency and the staff of the Governor or 7 agency. 8 (B) The chief executive officer or governing 9 body of a local agency, or a member or staff of the 10 local agency prior to the presentation of the 11 decision, policy, proposal or course of action to a 12 quorum of the governing body. 13 (iii) This paragraph does not apply to a written 14 application or other document used to request 15 Commonwealth funds. 16 (11) A record that constitutes or reveals a trade secret 17 or confidential proprietary information. 18 (12) Notes and working papers prepared by or for a 19 public official or agency employee used solely for that 20 official's or employee's own personal use, including 21 telephone message slips, routing slips and other materials 22 that do not have an official purpose. 23 (13) Records that would disclose the identity of an 24 individual who lawfully makes a donation to an agency unless 25 the donation is intended for or restricted to providing 26 remuneration or personal tangible benefit to a named public 27 official or employee of the agency, including lists of 28 potential donors compiled by an agency to pursue donations, 29 donor profile information or personal identifying information 30 relating to a donor. 20070S0001B1562 - 24 -
1 (14) Unpublished lecture notes, unpublished manuscripts, 2 unpublished articles, creative works in progress, research- 3 related material and scholarly correspondence of a community 4 college or an institution of the State System of Higher 5 Education or a faculty member, staff employee, guest speaker 6 or student thereof. 7 (15) Examination questions, scoring keys or answers to 8 an examination. 9 (16) A record of an agency relating to or resulting in a 10 criminal investigation, including: 11 (i) Complaints of potential criminal conduct other 12 than a private criminal complaint. 13 (ii) Investigative materials, notes, correspondence 14 and reports. 15 (iii) A record that includes the identity of a 16 confidential source or the identity of a suspect who has 17 not been charged with an offense to whom confidentiality 18 has been promised. 19 (iv) A record that includes information made 20 confidential by law or court order. 21 (v) Victim information, including any information 22 that would jeopardize the safety of the victim. 23 (vi) A record that, if disclosed, would do any of 24 the following: 25 (A) Reveal the institution, progress or result 26 of a criminal investigation, except the filing of 27 criminal charges. 28 (B) Deprive a person of the right to a fair 29 trial or an impartial adjudication. 30 (C) Impair the ability to locate a defendant or 20070S0001B1562 - 25 -
1 codefendant.
2 (D) Hinder an agency's ability to secure an
3 arrest, prosecution or conviction.
4 (E) Endanger the life or physical safety of an
5 individual.
6 (17) A record of an agency relating to a noncriminal
7 investigation, including:
8 (i) Complaints submitted to an agency.
9 (ii) Investigative materials, notes, correspondence
10 and reports.
11 (iii) A record that includes the identity of a
12 confidential source, including individuals subject to the
13 act of December 12, 1986 (P.L.1559, No.169), known as the
14 Whistleblower Law.
15 (iv) A record that includes information made
16 confidential by law or court order. <--
17 (v) Work papers underlying an audit.
18 (vi) A record that, if disclosed, would do any of
19 the following:
20 (A) Reveal the institution, progress or result
21 of an agency investigation, except the imposition of
22 a fine or civil penalty or the suspension,
23 modification or revocation of a license, permit,
24 registration, certification or similar authorization
25 issued by an agency.
26 (B) Deprive a person of the right to an
27 impartial adjudication.
28 (C) Constitute an unwarranted invasion of
29 privacy.
30 (D) Hinder an agency's ability to secure an
20070S0001B1562 - 26 -
1 administrative or civil sanction. 2 (E) Endanger the life or physical safety of an 3 individual. 4 (18) 911 recordings. 5 (19) DNA records. 6 (20) An autopsy record of a coroner or medical examiner 7 and any audiotape of a postmortem examination or autopsy, or 8 a copy, reproduction or facsimile of a photograph, negative 9 or print, including a photograph or videotape of the body or 10 any portion of the body of a deceased person at the scene of 11 death or in the course of a postmortem examination or autopsy 12 taken or made by or caused to be taken or made by the coroner 13 or medical examiner. This exception shall not limit the 14 reporting of the name of the deceased individual, the cause 15 of death and whether the death was caused by criminal 16 activity or criminal negligence in accordance with section 17 1251 of the act of August 9, 1955 (P.L.323, No.130), known as 18 The County Code. 19 (21) Minutes of an executive session and any record of 20 discussions held in executive session. 21 (22) (i) The contents of real estate appraisals, 22 engineering or feasibility estimates, environmental 23 reviews, audits or evaluations made for or by an agency 24 relative to the following: 25 (A) The leasing, acquiring or disposing of real 26 property. 27 (B) The purchase of public supplies or equipment 28 included in the real estate transaction. 29 (C) Construction projects. 30 (ii) This paragraph does not apply once the decision 20070S0001B1562 - 27 -
1 is made to proceed with the lease, acquisition or 2 disposal of real property or the purchase of public 3 supply or construction project. 4 (23) Library and archive circulation and order records 5 of an identifiable individual or groups of individuals. 6 (24) Library archived and museum materials, or valuable 7 or rare book collections or documents contributed by gift, 8 grant, bequest or devise, to the extent of any limitations 9 imposed by the donor as a condition of the contribution. 10 (25) A record identifying the location of an 11 archeological site or an endangered or threatened plant or 12 animal species if not already known to the general public. 13 (26) A proposal pertaining to agency procurement or 14 disposal of supplies, services or construction prior to the 15 award of the contract or prior to the opening and rejection 16 of all bids; financial information of a bidder or offeror 17 requested in an invitation for bid or request for proposals 18 to demonstrate the bidder's or offeror's economic capability; 19 or the identity of members, notes and other records of agency 20 proposal evaluation committees established under 62 Pa.C.S. § 21 513 (relating to competitive sealed proposals). 22 (27) A record or information relating to a communication 23 between an agency and its insurance carrier, administrative 24 service organization or risk management office. This 25 paragraph does not apply to a contract with an insurance 26 carrier, administrative service organization or risk 27 management office or to financial records relating to the 28 provision of insurance. 29 (28) A record or information: 30 (i) identifying an individual who applies for or 20070S0001B1562 - 28 -
1 receives social services; or 2 (ii) relating to the following: 3 (A) the type of social services received by an 4 individual; 5 (B) an individual's application to receive 6 social services, including a record or information 7 related to an agency decision to grant, deny, reduce 8 or restrict benefits, including a quasi-judicial 9 decision of the agency and the identity of a 10 caregiver or others who provide services to the 11 individual; or 12 (C) eligibility to receive social benefits, 13 including the individual's income, assets, physical 14 or mental health, age, disability, family 15 circumstances or record of abuse. 16 (c) Financial records.--The exceptions set forth in 17 subsection (b) shall not apply to financial records, except for 18 financial records protected under subsection (b)(1), (2), (3) or 19 (4), personal financial information or individual medical 20 information under subsection (b)(5). An agency may redact that 21 portion of a financial record which would disclose information 22 protected by subsection (b)(6) or disclose the identity of a 23 crime victim, confidential source or an individual performing an 24 undercover or covert law enforcement activity under subsection 25 (b)(16) or (17). 26 (d) Aggregated data.--The exceptions set forth in subsection 27 (b) shall not apply to aggregated data, maintained or received 28 by an agency, except for data protected under subsection (b)(1), 29 (2), (3) or (4). 30 CHAPTER 9 20070S0001B1562 - 29 -
1 AGENCY RESPONSE 2 Section 901. General rule. 3 Upon receipt of a written request for access to a record, an 4 agency shall make a good faith effort to determine if the record 5 requested is a public record, legislative record or financial 6 record and whether the agency has possession, custody or control 7 of the identified record, and to respond as promptly as possible 8 under the circumstances existing at the time of the request. The 9 time for response shall not exceed five business days from the 10 date the written request is received by the agency head or open- 11 records officer for an agency. If the agency fails to send the 12 response within five business days of receipt of the written 13 request for access, the written request for access shall be 14 deemed denied. 15 Section 902. Extension of time. 16 (a) Determination.--Upon receipt of a written request for 17 access, the open-records officer for an agency shall determine 18 if one of the following applies: 19 (1) the request for access requires redaction of a 20 record in accordance with section 706; 21 (2) the request for access requires the retrieval of a 22 record stored in a remote location; 23 (3) a timely response to the request for access cannot 24 be accomplished due to bona fide and specified staffing 25 limitations; 26 (4) a legal review is necessary to determine whether the 27 record is a record subject to access under this act; 28 (5) the requester has not complied with the Commonwealth 29 agency's policies regarding access to records; 30 (6) the requester refuses to pay applicable fees 20070S0001B1562 - 30 -
1 authorized by this act; or 2 (7) the extent or nature of the request precludes a 3 response within the required time period. 4 (b) Notice.-- 5 (1) Upon a determination that one of the factors listed 6 in subsection (a) applies, the open-records officer shall 7 send written notice to the requester within five business 8 days of receipt of the request for access under subsection 9 (a). 10 (2) The notice shall include a statement notifying the 11 requester that the request for access is being reviewed, the 12 reason for the review and a reasonable date that a response 13 is expected to be provided. If the date that a response is 14 expected to be provided is in excess of 30 days, following 15 the five business days allowed for in section 901, the 16 request for access shall be deemed denied unless the 17 requester has agreed in writing for an extension to the date 18 specified in the notice. 19 (3) If the requester agrees to the extension, the 20 request shall be deemed denied on the day following the date 21 specified in the notice if the agency has not provided a 22 response by that date. 23 Section 903. Denial. 24 If an agency's response is a denial of a written request for 25 access, whether in whole or in part, a written response shall be 26 issued and include: 27 (1) A description of the record requested. 28 (2) The specific reasons for the denial, including a 29 citation of supporting legal authority. 30 (3) The typed or printed name, title, business address, 20070S0001B1562 - 31 -
1 business telephone number and signature of the agency head or 2 open-records officer on whose authority the denial is issued. 3 (4) Date of the response. 4 (5) The procedure to appeal the denial of access under 5 this act. 6 Section 904. Certified copies. 7 If an agency's response grants a request for access, the 8 agency shall, upon request, provide the requester with a 9 certified copy of the record if the requester pays the 10 applicable fees pursuant to section 1307. 11 CHAPTER 11 12 APPEAL OF AGENCY DETERMINATION 13 Section 1101. Filing of appeal. 14 (a) Authorization.-- 15 (1) If a written request for access is denied or deemed 16 denied, the requester may file an appeal with the 17 clearinghouse or other appropriate appeals officer within 15 18 business days of the mailing date of the agency's response or 19 within 15 business days of a deemed denial. The appeal shall 20 state the grounds upon which the requester asserts that the 21 record is a public record, legislative record or financial 22 record and shall address any grounds stated by the agency for 23 delaying or denying the request. 24 (2) In the case of an appeal of a decision by a 25 Commonwealth agency or local agency, the clearinghouse shall 26 assign an appeals officer to review the denial. 27 (b) Determination.-- 28 (1) Unless the requester agrees otherwise, the appeals 29 officer shall make a final determination which shall be 30 mailed to the requester and the agency within 30 days of 20070S0001B1562 - 32 -
1 receipt of the appeal filed under subsection (a). 2 (2) If the appeals officer fails to issue a final 3 determination within 30 days, the appeal is deemed denied. 4 (3) Prior to issuing a final determination, a hearing 5 may be conducted. The determination by the appeals officer 6 shall be a final order. The appeals officer shall provide a 7 written explanation of the reason for the decision to the 8 requester and the agency. 9 (c) Direct interest.-- 10 (1) A person other than the agency or requester with a 11 direct interest in the record subject to an appeal under this 12 section may, within 15 calendar days following receipt of 13 actual knowledge of the appeal but no later than the date the 14 appeals officer issues an order, file a written request to 15 provide information or appear before the appeals officer or 16 to file information in support of the requester's or agency's 17 position. 18 (2) The appeals officer may grant the request if: 19 (i) no hearing has been held; 20 (ii) the office has not yet issued its order; and 21 (iii) the appeals officer believes the information 22 will be probative. 23 (3) Copies of the written request shall be sent to the 24 agency and the requester. 25 Section 1102. Appeals officers. 26 (a) Scope.--This section applies to all agencies. 27 (b) Duties.--The appeals officer shall do all of the 28 following: 29 (1) Set a schedule for the requester and the open- 30 records officer to submit documents in support of their 20070S0001B1562 - 33 -
1 positions. 2 (2) Review all information filed relating to the 3 request. The appeals officer may hold a hearing. A decision 4 to hold or not to hold a hearing is not appealable. The 5 appeals officer may admit into evidence testimony, evidence 6 and documents that the appeals officer believes to be 7 reasonably probative and relevant to an issue in dispute. The 8 appeals officer may limit the nature and extent of evidence 9 found to be cumulative. 10 (3) Consult with agency counsel as appropriate. 11 (4) Issue a final determination on behalf of the agency. 12 (c) Procedures.--The clearinghouse, a judicial agency or a 13 legislative agency may adopt procedures relating to appeals 14 under this chapter. 15 (1) If an appeal is resolved without a hearing, 1 Pa. 16 Code Pt. II (relating to general rules of administrative 17 practice and procedure) does not apply except to the extent 18 that the clearinghouse, legislative agency or judicial agency 19 has adopted these chapters in its regulations or rules. 20 (2) If a hearing is held, 1 Pa. Code Pt. II shall apply 21 unless the clearinghouse, the judicial agency or the 22 legislative agency has adopted regulations or rules to the 23 contrary. 24 (3) In the absence of a regulation or rule governing 25 appeals under this chapter, the appeals officer shall rule on 26 procedural matters on the basis of justice, fairness and the 27 expeditious resolution of the dispute. 28 CHAPTER 13 29 JUDICIAL REVIEW 30 Section 1301. Commonwealth agencies, legislative agencies and 20070S0001B1562 - 34 -
1 judicial agencies. 2 (a) General rule.--Within 30 days of the mailing date of the 3 final determination of the appeals officer relating to a 4 decision of a Commonwealth agency, a legislative agency or a 5 judicial agency issued under section 1103 or the date a request 6 for access is deemed denied, a requester or the agency may file 7 a petition for review or other document as might be required by 8 rule of court with the Commonwealth Court. The decision of the 9 court shall contain findings of fact and conclusions of law 10 based upon the evidence as a whole. The decision shall clearly 11 and concisely explain the rationale for the decision. 12 (b) Stay.--An appeal under this section shall stay the 13 release of documents until a decision under subsection (a) is 14 issued. 15 Section 1302. Local agencies. 16 (a) General rule.--Within 30 days of the mailing date of the 17 final determination of the appeals officer relating to a 18 decision of a local agency issued under section 1103 or of the 19 date a request for access is deemed denied, a requester or local 20 agency may file a petition for review or other document as 21 required by rule of court with the court of common pleas for the 22 county where the local agency is located. The decision of the 23 court shall contain findings of fact and conclusions of law 24 based upon the evidence as a whole. The decision shall clearly 25 and concisely explain the rationale for the decision. 26 (b) Stay.--An appeal under this section shall stay the 27 release of documents until a decision under subsection (a) is 28 issued. 29 Section 1303. Notice and records. 30 (a) Notice.--An agency, the requester and the appeals 20070S0001B1562 - 35 -
1 officer shall be served notice of actions commenced in 2 accordance with section 1301 or 1302 and shall have an 3 opportunity to respond in accordance with applicable court 4 rules. 5 (b) Record on appeal.--The record before a court shall 6 consist of the request, the agency's response, the appeal filed 7 under section 1101, the hearing transcript, if any, and the 8 final written determination of the appeals officer. 9 Section 1304. Court costs and attorney fees. 10 (a) Reversal of agency determination.--If a court reverses 11 the final determination of the appeals officer or grants access 12 after a request for access was deemed denied, the court may 13 award reasonable attorney fees and costs of litigation or an 14 appropriate portion thereof to a requester if the court finds 15 either of the following: 16 (1) the agency receiving the original request willfully 17 or with wanton disregard deprived the requester of access to 18 a public record subject to access or otherwise acted in bad 19 faith under the provisions of this act; or 20 (2) the exemptions, exclusions or defenses asserted by 21 the agency in its final determination were not based on a 22 reasonable interpretation of law. 23 (b) Sanctions for frivolous requests or appeals.--The court 24 may award reasonable attorney fees and costs of litigation or an 25 appropriate portion thereof to an agency or the requester if the 26 court finds that the legal challenge under this chapter was 27 frivolous. 28 (c) Other sanctions.--Nothing in this act shall prohibit a 29 court from imposing penalties and costs in accordance with 30 applicable rules of court. 20070S0001B1562 - 36 -
1 Section 1305. Civil penalty. 2 (a) Denial of access.--A court may impose a civil penalty of 3 not more than $1,000 if an agency denied access to a public 4 record in bad faith. 5 (b) Failure to comply with court order.--An agency or public 6 official who does not promptly comply with a court order under 7 this act is subject to a civil penalty of not more than $500 per 8 day until the public records are provided. 9 Section 1306. Immunity. 10 (a) General rule.--Except as provided in sections 1304 and 11 1305 and other statutes governing the release of records, no 12 agency, public official or public employee shall be liable for 13 civil or criminal damages or penalties resulting from compliance 14 or failure to comply with this act. 15 (b) Schedules.--No agency, public official or public 16 employee shall be liable for civil or criminal damages or 17 penalties under this act for complying with any written public 18 record retention and disposition schedule. 19 Section 1307. Fee limitations. 20 (a) Postage.--Fees for postage may not exceed the actual 21 cost of mailing. 22 (b) Duplication.-- 23 (1) Fees for duplication by photocopying, printing from 24 electronic media or microfilm, copying onto electronic media, 25 transmission by facsimile or other electronic means and other 26 means of duplication shall be established: 27 (i) by the clearinghouse, for Commonwealth agencies 28 and local agencies; 29 (ii) by each judicial agency; and 30 (iii) by each legislative agency. 20070S0001B1562 - 37 -
1 (2) The fees must be reasonable and based on prevailing 2 fees for comparable duplication services provided by local 3 business entities. 4 (3) Fees for local agencies may reflect regional price 5 differences. 6 (4) FEES FOR COPYING COMPLEX AND EXTENSIVE DATA SETS, <-- 7 INCLUDING GEOGRAPHIC INFORMATION SYSTEMS AND INTEGRATED 8 PROPERTY ASSESSMENT LISTS, MAY BE BASED ON CONSIDERATION OF 9 THE REASONABLE MARKET VALUE OF THE SAME OR CLOSELY RELATED 10 DATA SETS. 11 (c) Certification.--An agency may impose reasonable fees for 12 official certification of copies if the certification is at the 13 behest of the requester and for the purpose of legally verifying 14 the public record. 15 (d) Conversion to paper.--If a record is only maintained 16 electronically or in other nonpaper media, duplication fees 17 shall be limited to the lesser of the fee for duplication on 18 paper or the fee for duplication in the original media as 19 provided by subsection (b) unless the requester specifically 20 requests for the record to be duplicated in the more expensive 21 medium. 22 (e) Enhanced electronic access.--If an agency offers 23 enhanced electronic access to records in addition to making the 24 records accessible for inspection and duplication by a requester 25 as required by this act, the agency may establish user fees 26 specifically for the provision of the enhanced electronic 27 access, but only to the extent that the enhanced electronic 28 access is in addition to making the records accessible for 29 inspection and duplication by a requester as required by this 30 act. The user fees for enhanced electronic access may be a flat 20070S0001B1562 - 38 -
1 rate, a subscription fee for a period of time, a per-transaction 2 fee, a fee based on the cumulative time of system access or any 3 other reasonable method and any combination thereof. The user 4 fees for enhanced electronic access must be reasonable, must be 5 approved by the clearinghouse and may not be established with 6 the intent or effect of excluding persons from access to records 7 or duplicates thereof or of creating profit for the agency. 8 (f) Waiver of fees.--An agency may waive the fees for 9 duplication of a record, including, but not limited to, when: 10 (1) the requester duplicates the record; or 11 (2) the agency deems it is in the public interest to do 12 so. 13 (g) Limitations.--Except as otherwise provided by statute, 14 no other fees may be imposed unless the agency necessarily 15 incurs costs for complying with the request, and such fees must 16 be reasonable. No fee may be imposed for an agency's review of a 17 record to determine whether the record is a public record, 18 legislative record or financial record subject to access in 19 accordance with this act. 20 (h) Prepayment.--Prior to granting a request for access in 21 accordance with this act, an agency may require a requester to 22 prepay an estimate of the fees authorized under this section if 23 the fees required to fulfill the request are expected to exceed 24 $100. 25 Section 1308. Prohibition. 26 A policy, rule or regulation adopted under this act may not 27 include any of the following: 28 (1) A limitation on the number of records which may be 29 requested or made available for inspection or duplication. 30 (2) A requirement to disclose the purpose or motive in 20070S0001B1562 - 39 -
1 requesting access to records. 2 Section 1309. Practice and procedure. 3 The provisions of 2 Pa.C.S. (relating to administrative law 4 and procedure) shall not apply to this act unless specifically 5 adopted by rule or regulation. 6 Section 1310. Clearinghouse. 7 (a) Establishment.--There is hereby established in the 8 Department of Community and Economic Development an Open Records 9 Clearinghouse. The clearinghouse shall do all of the following: 10 (1) Provide information relating to the implementation 11 and enforcement of this act. 12 (2) Issue advisory opinions to agencies and requesters. 13 (3) Provide annual training courses to agencies on this 14 act and 65 Pa.C.S. Ch. 7 (relating to open meetings). 15 (4) Provide annual, regional training courses to local 16 agencies. 17 (5) Review appeals of decisions by Commonwealth agencies 18 or local agencies except as provided in section 503(d) filed 19 under section 1101 and issue orders and opinions. The 20 clearinghouse shall employ or contract with attorneys to 21 serve as appeals officers to review appeals and, if 22 necessary, to hold hearings on a regional basis under this 23 act. Each appeals officer must comply with all of the 24 following: 25 (i) Complete a training course provided by the 26 clearinghouse prior to acting as an appeals officer. 27 (ii) If a hearing is necessary, hold hearings 28 regionally as necessary to ensure access to the remedies 29 provided by this act. 30 (iii) Comply with the procedures under section 20070S0001B1562 - 40 -
1 1102(b). 2 (6) Establish an informal mediation program to resolve 3 disputes under this act. 4 (7) Establish an Internet website with information 5 relating to this act, including advisory opinions and 6 decisions and the name and address of all open records 7 officers in this Commonwealth. 8 (8) Conduct a biannual review of fees charged under this 9 act. 10 (9) Annually report on its activities and findings to 11 the Governor and the General Assembly. The report shall be 12 posted and maintained on the Internet website established 13 under paragraph (7). 14 (b) Executive director.--The Governor shall appoint an 15 executive director of the clearinghouse who shall serve for a 16 term of six years. Compensation shall be set by the Executive 17 Board established under section 204 of the act of April 9, 1929 18 (P.L.177, No.175), known as The Administrative Code of 1929. The 19 executive director may serve no more than two terms. 20 (c) Limitation.--The executive director shall not seek 21 election nor accept appointment to any political office during 22 his tenure as executive director and for one year thereafter. 23 (d) Staffing.--The executive director shall appoint 24 attorneys to act as appeals officers and additional clerical, 25 technical and professional staff as may be appropriate and may 26 contract for additional services as necessary for the 27 performance of the executive director's function. The 28 compensation of attorneys and other staff shall be set by the 29 Executive Board. 30 (e) Duties.--The executive director shall ensure that the 20070S0001B1562 - 41 -
1 duties of the clearinghouse are carried out and shall monitor 2 cases appealed to the clearinghouse. 3 (f) Appropriation.--The appropriation for the clearinghouse 4 shall be in a separate line item and shall be under the 5 jurisdiction of the executive director. 6 CHAPTER 15 7 STATE-RELATED INSTITUTIONS 8 Section 1501. Definition. 9 As used in this chapter, "State-related institution" means 10 any of the following: 11 (1) Temple University. 12 (2) The University of Pittsburgh. 13 (3) The Pennsylvania State University. 14 (4) Lincoln University. 15 Section 1502. Reporting. 16 No later than May 30 of each year, a State-related 17 institution shall file with the Governor's Office, the General 18 Assembly, the Auditor General and the State Library the 19 information set forth in section 1503. 20 Section 1503. Contents of report. 21 The report required under section 1502 shall include the 22 following: 23 (1) Except as provided in paragraph (4), all information 24 required by Form 990 or an equivalent form, of the United 25 States Department of the Treasury, Internal Revenue Service, 26 entitled the Return of Organization Exempt From Income Tax, 27 regardless of whether the State-related institution is 28 required to file the form by the Federal Government. 29 (2) The salaries of all officers and directors of the 30 State-related institution. 20070S0001B1562 - 42 -
1 (3) The highest 25 salaries paid to employees of the 2 institution that are not included under paragraph (2). 3 (4) The report shall not include information relating to 4 individual donors. 5 Section 1504. Copies and posting. 6 A State-related institution shall maintain, for at least 7 seven years, a copy of the report in the institution's library 8 and shall provide free access to the report on the institution's 9 Internet website. 10 CHAPTER 17 11 STATE CONTRACT INFORMATION 12 Section 1701. Submission and retention of contracts. 13 (a) General rule.--Whenever any Commonwealth agency, 14 legislative agency or judicial agency shall enter into any 15 contract involving any property, real, personal or mixed of any 16 kind or description or any contract for personal services where 17 the consideration involved in the contract is $5,000 or more, a 18 copy of the contract shall be furnished to the Treasury 19 Department within ten days after the contract is executed on 20 behalf of the Commonwealth agency, legislative agency or 21 judicial agency or otherwise becomes an obligation of the 22 Commonwealth agency, legislative agency or judicial agency. The 23 provisions of this subsection shall not apply to contracts for 24 services protected by a privilege. The following shall apply: 25 (1) Each Commonwealth agency, legislative agency and 26 judicial agency shall submit contracts in a form and 27 structure mutually agreed upon by the Commonwealth agency, 28 legislative agency or judicial agency and the State 29 Treasurer. 30 (2) The Treasury Department may require each 20070S0001B1562 - 43 -
1 Commonwealth agency, legislative agency or judicial agency to 2 provide a summary with each contract, which shall include the 3 following: 4 (i) Date of execution. 5 (ii) Amount of the contract. 6 (iii) Beginning date of the contract. 7 (iv) End date of the contract, if applicable. 8 (v) Name of the agency entering into the contract. 9 (vi) All parties to the contract. 10 (vii) Subject matter of the contract. 11 Each agency shall create and maintain the data under this 12 paragraph in an ASCII-delimited text format, spreadsheet 13 format or other format provided by regulation. 14 (b) Retention.--Every contract filed pursuant to subsection 15 (a) shall remain on file with the Treasury Department for a 16 period of not less than four years after the end date of the 17 contract. 18 (c) Accuracy.--Each Commonwealth agency, legislative agency 19 and judicial agency is responsible for verifying the accuracy 20 and completeness of the information that it submits to the State 21 Treasurer. 22 Section 1702. Public availability of contracts. 23 (a) General rule.--The Treasury Department shall make each 24 contract filed pursuant to section 1701 available for public 25 inspection either by posting a copy of the contract on the 26 Treasury Department's publicly accessible Internet website or by 27 posting a contract summary on the department's publicly 28 accessible Internet website. 29 (b) Posting.--The Treasury Department shall post the 30 information received pursuant to this chapter in a way that 20070S0001B1562 - 44 -
1 allows the public to search contracts or contract summaries by 2 the categories enumerated in section 1701(a)(2). 3 (c) Request to review or receive copy of contract.--The 4 Treasury Department shall maintain a page on its publicly 5 accessible Internet website with instructions on how to request 6 to review a contract and how to request a copy of a contract. 7 Requests to review or receive a copy of a contract shall be 8 allowed by letter, facsimile or e-mail. Additionally, both 9 requests shall be honored within five days of the submission of 10 the request and in the case of a request for a copy of a 11 contract it shall be provided to the individual at cost. The 12 Treasury Department may offer to provide a copy of the requested 13 contract electronically to the requester at no cost. 14 CHAPTER 31 15 MISCELLANEOUS PROVISIONS 16 Section 3101. Applicability. 17 This act applies as follows: 18 (1) This act shall apply to requests filed after the 19 effective date of this section. 20 (2) Chapter 15 shall apply to fiscal years beginning 21 after June 30, 2008. 22 (3) Chapter 17 shall apply to contracts entered into or 23 renewed after the effective date of this section. 24 (4) Section 3102(1)(ii)(B) shall apply to bids submitted 25 on or after the effective date of this section. 26 Section 3102. Repeals. 27 Repeals are as follows: 28 (1) (i) General Assembly declares that the repeals 29 under subparagraph (ii) are necessary to effectuate this 30 act. 20070S0001B1562 - 45 -
1 (ii) The following acts and parts of acts are 2 repealed: 3 (A) The act of June 21, 1957 (P.L.390, No.212), 4 referred to as the Right-to-Know Law. 5 (B) 62 Pa.C.S. § 106. 6 (2) (i) The General Assembly declares that the repeal 7 under subparagraph (ii) is necessary to effectuate 8 Chapter 17. 9 (ii) Section 1104 of the act of April 9, 1929 10 (P.L.177, No.175), known as The Administrative Code of 11 1929, is repealed. 12 Section 3103. Effective date. 13 This act shall take effect in 180 days. C26L02VDL/20070S0001B1562 - 46 -