Requester May Not Appeal Denial of Access to Public Records Under Pennsylvania Right-to-Know Law Before Paying Copying Fees Incurred by Agency to Perform Secure Redactions
People often ask what fees a government agency in Pennsylvania may charge for access to public records. The Pennsylvania Right-to-Know Law (RTKL) allows requesters to avoid copying fees by asking to inspect records in person or to obtain records in electronic format. An issue arises, however, when an agency must redact non-public information from a public record. Even if the agency maintains records in electronic format, there are times the agency must print out and copy the records to ensure secure redactions. The Office of Open Records (OOR) recently encountered this issue and held that a requester may not challenge such redactions before paying copying fees.
In Brewster v. New Milford Township (OOR Docket AP 2020-0283) (Issued May 7, 2020), the requester made a request for financial records documenting the Township’s financial transactions over the previous two years. The Township granted the request in part by offering to provide access to the requested records subject to redaction of personal identification information (social security numbers, personal telephone numbers, federal employee identification numbers, and account numbers). The Township would not provide access to the redacted version of the records until the requester paid a copying fee of $131.75.
The Requester appealed to the OOR, asserting the copying fees were impermissible because the Township maintained the financial records in an electronic format. The OOR disagreed. The OOR explained that an agency may not charge labor fees for time spent making redactions, but the agency may charge copying fees for any printing necessary to securely redact records, even where inspection is sought.
The Township submitted a detailed affidavit explaining the basis of the redactions. The OOR asked the Township to provide an outline of the redacted records, which the Township provided. The OOR then held that the Requester could not challenge the redactions until he paid the copying fees and reviewed the records. The OOR cited Indiana University of Pennsylvania v. Loomis, 23 A.3d 1126 (Pa. Commw. 2011) for the proposition that the OOR must deny an appeal where an agency has requested prepayment for access and the requester has not paid copying fees. The OOR dismissed the appeal without prejudice for the requester to file another appeal after he paid the copying fees and reviewed the redacted version of the records.
Agencies must be careful in following this decision. An agency may not demand prepayment to avoid processing a request. Pennsylvania Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Commw. Ct. 2015). Although the RTKL permits an agency to demand prepayment before providing access to records, per Bagwell, an agency may only demand prepayment after the agency has reviewed the records, determined what information is exempt, and identified how many pages must be redacted. Where an agency makes an improper prepayment demand, the agency waives the ability to assert exemptions.
If an agency makes an initial determination that it needs to print out or copy records to ensure secure redactions, it should notify the requester of the number of pages and the anticipated copying fees, and ask if the requester wants the agency to continue processing the request. The RTKL requires an agency to do this if the requester notated their request to be notified of prepayment fees exceeding $100.00. It would be wise for the agency to provide such notice even if not solicited by the requester. If the requester withdraws the request, the agency will save a significant amount of time and labor for redactions. If, on the other hand, the requester insists that the agency process the request, the agency has documentation that the requester was aware of the financial obligation for which he or she will be responsible.
Requesters should be wary of consequences associated with demanding that an agency process a voluminous request. Agencies may adopt policies to refuse to process requests from individuals who have outstanding balances for copying fees associated with prior RTKL requests. This is especially problematic because there is no way for a requester to challenge prepayment fees separately from the merits of an appeal.
In sum, both agencies and requesters should be aware of the nuances associated with prepayment demands. As explained above, an agency may end waiving the ability to assert otherwise valid exemptions, and the requester may be blocked from making further requests. As always, it is recommended that agencies and requesters work together to clarify the scope of the request and provide information in the most efficient and cost-effective manner for all parties involved.