Right-to-Know Update

An Agency’s Audio Recordings of Public Meetings Are a Public Record

On February 17, 2009, the Office of Open Records issued an advisory opinion announcing that audio recordings/tapes of an agency public meeting are a public record under the new Right-to-Know Law. Such recordings clearly fit the definition of public record under the Act and are not minutes or draft minutes subject to exemption under 708(b)(21). Prior case law which held they were not a “minute” within one of the two narrow categories of public record is no longer applicable. It further stated that the notes of the agency secretary taken during the course of the public meeting as “draft minutes” may also become public record if the agency fails to officially adopt minutes at its next regularly scheduled meeting. Such drafts are not, however, subject to exemption as “personal notes or working papers” under 708(b)(12). The opinion also pointed out that retention and destruction of the tapes or notes should follow the agency’s document retention schedule to avoid possible penalty under the Act for improper destruction or disposal.

On February 24, the Office filed its first six final determinations. It granted three appeals from agency denials and ordered the release of the records requested dealing with the names of private contractor employees on a public school renovation project, the dates of birth of Pittsburgh Port Authority workers and various contracts and agreements of a school district. It upheld three agency denials for records requested concerning a PennDOT non-public electronic document management system, a record that had been destroyed earlier under the agency’s record retention policy and a building inspection done for a borough. For the full opinion or final determinations go to http://openrecords.state.pa.us and click on “Advisory Opinions” or “Final Determinations.”

Supreme Court Rules Autopsies Are Official Records of the Coroner and Available for Public Review

The Pennsylvania Supreme Court recently ruled that autopsies are “official records and papers” of the coroner under the Coroner’s Act requiring they be filed with the county Prothonotary by January 31 of the year following the year the autopsy was performed. The autopsies would then be available for public view. The decision in Penn Jersey Advance, Inc. v. Grim was the end of almost 3 years of litigation brought by the Easton Express-Times and the Allentown Morning Call. The case arose out of the newspapers request to obtain a copy of the autopsy of an Easton police officer who was shot inside police headquarters in 2005.

Justice McCafferty writing for the Court held that autopsies were necessarily “official reports and papers” of the coroner since the coroner is empowered to conduct or to order an autopsy if he is unable to determine the cause of death. “It follows logically that a coroner’s resulting autopsy reports constitute ‘official records and papers’ within the meaning of Section 1251[of the Coroner’s Act].” In response to privacy concerns raised in the case, the Court stated that such possibilities alone were not sufficient to overcome the clear language of the Act, but that if there were legitimate privacy or privilege concerns(health/medical conditions, graphic photos, etc.), the trial court could adequately address these concerns if parties raised them.

Justice Eakin concurred in the majority’s finding that certain provisions of the Act do not conflict, however, he dissented from the finding that performing autopsies is a “duty” of the coroner or that the entire autopsy is the official record of the coroner’s office, but rather would only agree that the cause and manner of death would be such. Interestingly, the Court mentions Section 708(b)(20) of the new Right-to-Know Law exempting autopsies from the definition of public record and Section 67.3101.1 that nullifies the RTK law if it conflicts with existing state law in a footnote , but then announces that this case arose before the new law, thus, the Court is expressing no opinion on the relationship between the two at this time.

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