PRINTER'S NO. 983
THE GENERAL ASSEMBLY OF PENNSYLVANIA
INTRODUCED BY PILEGGI, SMUCKER, RAFFERTY, WAUGH, FONTANA, FOLMER, TEPLITZ, GREENLEAF, WARD, ALLOWAY, YAW, YUDICHAK, BAKER, FERLO, MENSCH, ERICKSON, VANCE, VULAKOVICH, FARNESE AND BROWNE, APRIL 26, 2013
REFERRED TO STATE GOVERNMENT, APRIL 26, 2013
1Amending the act of February 14, 2008 (P.L.6, No.3), entitled
2"An act providing for access to public information, for a
3designated open-records officer in each Commonwealth agency,
4local agency, judicial agency and legislative agency, for
5procedure, for appeal of agency determination, for judicial
6review and for the Office of Open Records; imposing
7penalties; providing for reporting by State-related
8institutions; requiring the posting of certain State contract
9information on the Internet; and making related repeals,"
10further providing for definitions; providing for Pennsylvania
11Interscholastic Athletic Association; further providing for
12requests; providing for inmate access; and further providing
13for access, for requests, for written requests, for
14production of certain records, for exceptions for public
15records, for agency response in general, for filing of
16appeal, for appeals officers, for specified agencies, for fee
17limitations and for Office of Open Records.
20Section 1. The definitions of "confidential proprietary
21information," "independent agency," "local agency," "personal
22financial information" and "State-affiliated entity" in section
23102 of the act of February 14, 2008 (P.L.6, No.3), known as the
24Right-to-Know Law, are amended and the section is amended by
1adding definitions to read:
2Section 102. Definitions.
6* * *
7"Commercial purpose." The use of a record:
14The term does not include the use of a public record by an
15educational or noncommercial scientific institution for
16scholarly or scientific research or the use of a public record
17by the news media for dissemination in a newspaper, periodical
18or radio or television news broadcast.
19* * *
22(1) which is privileged or confidential; and
26* * *
30* * *
1"Independent agency." Any board, commission, authority or
2other agency or officer of the Commonwealth, that is not subject
3to the policy supervision and control of the Governor. The term
4does not include a legislative or judicial agency.
5* * *
6"Local agency." Any of the following:
10(2) Any local, intergovernmental, regional or municipal
11agency, authority, council, board, commission or similar
12governmental entity. This paragraph includes an economic
13development authority and an industrial development
17* * *
18"Personal financial information." An individual's personal
19credit, charge or debit card information; bank account
20information; bank, credit or financial statements; account or
21PIN numbers; forms required to be filed by a taxpayer with a
22Federal or Commonwealth taxing authority; and other information
23relating to an individual's personal finances.
24* * *
25"State-affiliated entity." A Commonwealth authority or
26Commonwealth entity. The term includes the Pennsylvania Higher
27Education Assistance Agency and any entity established thereby,
28the Pennsylvania Gaming Control Board, the Pennsylvania Game
29Commission, the Pennsylvania Fish and Boat Commission, the
30Pennsylvania Housing Finance Agency, the Pennsylvania Municipal
1Retirement Board, the State System of Higher Education, a
2community college, the Pennsylvania Turnpike Commission, the
3Pennsylvania Public Utility Commission, the Pennsylvania
4Infrastructure Investment Authority, the State Public School
5Building Authority[, the Pennsylvania Interscholastic Athletic
6Association] and the Pennsylvania Higher Educational Facilities
7Authority. The term does not include a State-related
9* * *
10"Time response log." A log created, received, maintained or
11retained by a public-safety answering point (PSAP), as defined
12in 35 Pa.C.S. § 5302 (relating to definitions), containing the
14(1) The time the call was received by the PSAP.
17(3) The time the appropriate agency responded.
20(5) The time the appropriate agency became available.
23* * *
24Section 2. The act is amended by adding a section to read:
25Section 307. Pennsylvania Interscholastic Athletic Association.
28Section 3. Section 506 of the act is amended to read:
29Section 506. Requests.
30(a) Disruptive requests.--
7(3) If a request or a related group of requests would be
8unduly burdensome, the agency may petition a court of
9competent jurisdiction for a protective order. The court may
10issue a protective order upon a showing of good cause,
14(ii) That only certain records be released.
18(b) Disaster or potential damage.--
19(1) An agency may deny a requester access:
22(ii) to historical, ancient or rare documents,
23records, archives and manuscripts when access may, in the
24professional judgment of the curator or custodian of
25records, cause physical damage or irreparable harm to the
30(c) Agency discretion.--An agency may exercise its
6(i) Federal or State law or regulation.
7(ii) Judicial order or decree.
8(2) The record is not protected by a privilege.
12(d) Agency possession.--
13(1) [A public record that is not in the possession of an
14agency but is in the possession of a party with whom the
15agency has contracted to perform a governmental function on
16behalf of the agency, and which directly relates to the
17governmental function and is not exempt under this act, shall
18be considered a public record of the agency for purposes of
19this act.] An agency which is a party to a contract shall
20provide a copy of the contract and any public records of the
21agency relating to the contract.
25(3) A request for a public record in possession of a
26party other than the agency shall be submitted to the open
27records officer of the agency. Upon a determination that the
28record is subject to access under this act, the open records
29officer shall assess the duplication fee established under
30section 1307(b) and upon collection shall remit the fee to
3Section 4. The act is amended by adding a section to read:
4Section 508. Inmate access.
7(b) Records.--An agency shall provide an inmate with copies
8of the following records as they pertain to the inmate if the
9disclosure of the record will not diminish the safety or
10security of any person or correctional facility:
13(2) Institutional housing information.
14(3) The inmate's financial records.
15(4) The inmate's work records.
16(5) The inmate's educational records.
17(6) The inmate's disciplinary records.
22(9) The inmate's tax records.
23(10) The inmate's voting records.
26(c) Applicability.--Nothing under this section shall
27prohibit a correctional institution from voluntarily permitting
28an inmate to have access to records not listed under subsection
29(b) or prevent a correctional institution from complying with a
30lawful subpoena or court order.
3Section 701. Access.
4(a) General rule.--Unless otherwise provided by law, a
5public record, legislative record or financial record shall be
6accessible for inspection and duplication in accordance with
7this act. A record being provided to a requester shall be
8provided in the medium, computer file format or other format
9requested if it exists in that medium, computer file format or
10other format; otherwise, it shall be provided in the medium in
11which it exists. Public records, legislative records or
12financial records shall be available for access during the
13regular business hours of an agency.
17Section 702. Requests.
18Agencies may fulfill verbal[, written or anonymous verbal] or
19written requests for access to records under this act. If the
20requester wishes to pursue the relief and remedies provided for
21in this act, the request for access to records must be a written
23Section 703. Written requests.
24A written request for access to records may be submitted in
25person, by mail, by e-mail, by facsimile or, to the extent
26provided by agency rules, by any other electronic means. A
27written request must be addressed to the open-records officer
28designated pursuant to section 502 or to the administrative
29office of the agency. [Employees of an] The administrative
30office of the agency shall [be directed to] promptly forward
1requests for records to the agency's open-records officer. A
2written request should identify or describe the records sought
3with sufficient specificity to enable the agency to ascertain
4which records are being requested and shall include the name and
5address to which the agency should address its response. [A]
6Except as required under section 707(d), a written request need
7not include any explanation of the requester's reason for
8requesting or intended use of the records unless otherwise
9required by law. A written request must include the name and
10address of the requester and the name of the agency to which the
11request is addressed.
12Section 707. Production of certain records.
13(a) General rule.--If, in response to a request, an agency
14produces a record that is not a public record, legislative
15record or financial record, the agency shall notify any third
16party that provided the record to the agency, the person that is
17the subject of the record and the requester.
18(b) Requests for trade secrets.--An agency shall notify a
19third party of a request for a record if the third party
20provided the record and included a written statement signed by a
21representative of the third party that the record contains a
22trade secret or confidential proprietary information.
23Notification shall be provided within five business days of
24receipt of the request for the record. The third party shall
25have five business days from receipt of notification from the
26agency to provide input on the release of the record. The agency
27shall deny the request for the record or release the record
28within ten business days of the provision of notice to the third
29party and shall notify the third party of the decision.
1(1) Prior to an adjudication becoming final, binding and
2nonappealable, a transcript of an administrative proceeding
3shall be provided to a requester by the agency stenographer
4or a court reporter, in accordance with agency procedure or
5an applicable contract.
6(2) Following an adjudication becoming final, binding
7and nonappealable, a transcript of an administrative
8proceeding shall be provided to a requester in accordance
9with the duplication rates established in section 1307(b).
13(d) Commercial requests.--An agency may require a requester
14to certify in writing whether the request is for a commercial
15purpose. Certification shall be submitted on a form developed by
16the Office of Open Records that shall provide a checkoff for the
17requester to use to indicate whether the request is for a
18commercial purpose. A requester that submits a false written
19statement shall be subject to 18 Pa.C.S. § 4904 (relating to
20unsworn falsification to authorities).
24Section 708. Exceptions for public records.
25* * *
29* * *
30(5.1) The payment records of a person receiving services
1from a public water or sewer authority or other municipal
2authority, municipality or cooperative that provides
3electricity, water, sewer, storm water, natural gas or
4similar service. The authority, municipality or cooperative
5shall establish a process to provide a clearance certificate
6to a person to certify that all fees and charges owed have
7been paid. A reasonable fee for a clearance certificate may
8be charged. This paragraph shall not apply to reports of
9aggregate payments made by a municipality, authority or
10cooperative to assist low-income consumers or other consumers
11in obtaining services. If funds are owed, the amount of the
12delinquency shall appear on the clearance certificate.
13* * *
14(6.1) Tax payment records in the possession of a tax
15collector. A tax collector shall establish a process to
16provide a clearance certificate to a person certifying that
17all local taxes owed have been paid. If funds are owed, the
18amount of the delinquency shall appear on the clearance
19certificate. A reasonable fee for a clearance certificate may
20be charged. As used in this paragraph, the term "tax
21collector" means an elected tax collector or an employee or
22contractor of an agency that collects local taxes pursuant to
24* * *
25(10) As follows:
26(i) A record that reflects, contains or includes:
27(A) The internal, predecisional deliberations of
28an agency, its members, employees or officials or
29predecisional deliberations between agency members,
30employees or officials and members, employees or
1officials of another agency, including predecisional
2deliberations relating to a budget recommendation,
3legislative proposal, legislative amendment,
4contemplated or proposed policy or course of action
5or any research, memos or other documents used in the
10(ii) Subparagraph (i)(A) shall apply to agencies
11subject to 65 Pa.C.S. Ch. 7 (relating to open meetings)
12in a manner consistent with 65 Pa.C.S. Ch. 7. A record
13which is not otherwise exempt from access under this act
14and which is presented to a quorum for deliberation in
15accordance with 65 Pa.C.S. Ch. 7 shall be a public record
16regardless of whether a vote occurs at the meeting.
17* * *
18(13) Records that would disclose the identity of, or
19financial information relating to, an individual who lawfully
20makes a donation to an agency unless the donation is intended
21for or restricted to providing remuneration or personal
22tangible benefit to a named public official or employee of
23the agency, including lists of potential donors compiled by
24an agency to pursue donations, donor profile information or
25personal identifying information relating to a donor.
26* * *
30(i) Complaints submitted to an agency.
9(v) Work papers underlying an audit.
12(A) Reveal the institution, progress or result
13of an agency investigation, except the imposition of
14a fine or civil penalty, the suspension, modification
15or revocation of a license, permit, registration,
16certification or similar authorization issued by an
17agency or an executed settlement agreement unless the
18agreement is determined to be confidential by a
28(18) Emergency dispatches as follows:
3(ii) This paragraph shall not apply to a 911
4recording, or a transcript of a 911 recording, if the
5agency or a court determines that the public interest in
6disclosure outweighs the interest in nondisclosure.
10* * *
13(32) A record of any of the following:
14(i) A volunteer ambulance service.
15(ii) A volunteer fire company.
16(iii) A volunteer rescue company.
17(iv) A volunteer water rescue company.
25(c) Financial records.--The exceptions set forth in
26subsection (b) shall not apply to financial records, except that
27an agency may redact that portion of a financial record
28protected under subsection (b)(1), (2), (3), (4), (5), (6),
29(11), (13), (16) or (17). An agency shall not disclose the
30identity of an individual performing an undercover or covert law
2* * *
5Section 901. General rule.
6(a) Determination.---Upon receipt of a written request for
7access to a record, an agency shall make a good faith effort to
8determine if the record requested is a public record,
9legislative record or financial record and whether the agency
10has possession, custody or control of the identified record, and
11to respond as promptly as possible under the circumstances
12existing at the time of the request. All applicable fees shall
13be paid in order to receive access to the record requested.
16(1) In the case of a request made in person or submitted
17by regular mail, e-mail, web form, facsimile or similar
18means, five business days from the date the written request
19is received by the open-records officer for an agency. If the
20agency fails to send the response within five business days
21of receipt of the written request for access, the written
22request for access shall be deemed denied.
24Section 1101. Filing of appeal.
26(1) If a written request for access to a record is]
27(a) Authorization.--The following shall apply:
1or other appeals officer designated under section 503(d)
2within  20 business days of the [mailing] postmark
3date of the agency's response or within  20 business
4days of a deemed denial, whichever comes first.
5(ii) The appeal shall [state the grounds upon which
6the requester asserts that the record is a public record,
7legislative record or financial record and shall address
8any grounds stated by the agency for delaying or denying
9the request.] include the following:
10(A) A copy of the original request.
11(B) The agency denial.
12(C) A list of the records that were denied.
16(2) Except as provided in section 503(d), in the case of
17an appeal of a decision by a Commonwealth agency or local
18agency, the Office of Open Records shall assign an appeals
19officer to review the denial.
21(1) Unless the requester agrees otherwise, the appeals
22officer shall make a final determination which shall be
23mailed to the requester and the agency within 30 days of
24receipt of the appeal filed under subsection (a). The appeals
25officer may extend this deadline by up to 15 days by
26providing notice to both parties. If a hearing or in-camera
27review is held under section 1102(a)(2), the appeals officer
28may extend the deadline up to 90 additional days.
6(3) Prior to issuing a final determination, a hearing
7may be conducted. The determination by the appeals officer
8shall be a final order. The appeals officer shall provide a
9written explanation of the reason for the decision to the
10requester and the agency.
11(c) Direct interest.--
12(1) A person other than the agency or requester with a
13direct interest in the record subject to an appeal under this
14section may, within 15 days following receipt of actual
15knowledge of the appeal but no later than the date the
16appeals officer issues an order, file a written request to
17provide information or to appear before the appeals officer
18or to file information in support of the requester's or
22(i) no hearing has been held;
1Section 1102. Appeals officers.
7(2) Review all information filed relating to the
8request. The appeals officer may hold a hearing or conduct an
9in-camera review under subsection (c), in which case the
10appeals officer may extend the deadline in section 1101(b)(1)
11by up to 90 days. A decision to hold or not to hold a hearing
12is not appealable. The appeals officer may admit into
13evidence testimony, evidence and documents that the appeals
14officer believes to be reasonably probative and relevant to
15an issue in dispute. The appeals officer may limit the nature
16and extent of evidence found to be cumulative.
17(3) Consult with agency counsel as appropriate.
20* * *
1decision of a Commonwealth agency, a legislative agency [or], a
2judicial agency or the Office of Open Records issued under
3section 1101(b) or the date a request for access is deemed
4denied, a requester or the agency may file a petition for review
5or other document as might be required by rule of court with the
6Commonwealth Court. The court shall notify the Commonwealth
7agency, legislative agency, judicial agency or Office of Open
8Records of the appeal. The decision of the court shall contain
9findings of fact and conclusions of law based upon the evidence
10as a whole. The decision shall clearly and concisely explain the
11rationale for the decision.
12* * *
15Section 1307. Fee limitations.
16* * *
17(g.1) Additional fees.--
18(1) Notwithstanding subsection (e), each agency may
19assess fees for responding to commercial requests under this
20act. In addition to fees under subsections (a) and (b),
21reasonable standard charges may be charged for document
22search, review and redaction for documents for commercial
24(2) Fees under paragraph (1) must be calculated at no
25more than the hourly wage of the lowest-paid public employee
26of the agency who is capable of searching, retrieving,
27reviewing and providing for redaction of the information
28necessary to comply with the request.
4Section 11. Section 1310 of the act is amended to read:
5Section 1310. Office of Open Records.
12(2) Issue advisory opinions to agencies and requesters.
18(5) Assign appeals officers to review appeals of
19decisions by Commonwealth agencies or local agencies, except
20as provided in section 503(d), filed under section 1101 and
21issue orders and opinions. The office shall employ or
22contract with attorneys to serve as appeals officers to
23review appeals and, if necessary, to hold hearings on a
24regional basis under this act. Each appeals officer must
25comply with all of the following:
1provided by this act.
6(7) Establish an Internet website with information
7relating to this act, including information on fees, advisory
8opinions and decisions and the name and address of all open
9records officers in this Commonwealth.
16(b) Executive director.--Within 90 days of the effective
17date of this section, the Governor shall appoint an executive
18director of the office who shall serve for a term of six years.
19Compensation shall be set by the Executive Board established
20under section 204 of the act of April 9, 1929 (P.L.177, No.175),
21known as The Administrative Code of 1929. The executive director
22may serve no more than two terms.
26(d) Staffing.--The executive director shall appoint
27attorneys to act as appeals officers and additional clerical,
28technical and professional staff as may be appropriate and may
29contract for additional services as necessary for the
30performance of the executive director's duties. The compensation
1of attorneys and other staff shall be set by the Executive
2Board. The appointment of attorneys shall not be subject to the
3act of October 15, 1980 (P.L.950, No.164), known as the
4Commonwealth Attorneys Act.
8(e.1) Public comment.--The office shall abstain from public
9comment about a pending proceeding before the office. This
10subsection shall not prohibit the executive director from making
11public statements in the course of official duties, from issuing
12written advisory opinions, from making general comments on this
13act that are not related to a pending case or from explaining
14the procedures of the office.
21Section 12. This act shall take effect in 90 days.