Commonwealth Court Denies Charges by SERS for Labor Costs

On November 4, 2010, the Commonwealth Court in its decision, State Employees’ Retirement System v. Office of Open Records, No. 152 C.D. 2010, by Senior Judge Flaherty, denied a claim by SERS for labor charges in complying with a Right-to-Know request as a cost “necessarily incurred” under 65 P.S. § 67.1307(g).  SERS asserted that, in complying with the request, it would either have to produce multiple photocopies of various print screens with most of the information redacted, or it could compile all the “public record” information into an Excel spreadsheet (the method it chose to do) and sought to charge the requester for the time expended by two employees in doing so.

When SERS informed the requester that it would charge $77.00 for this labor, the requester appealed to the Office of Open Records (OOR) which granted the appeal and ordered SERS to turn the records over for photocopying costs only holding: “Employee time spent during their regular day in the course of their duties to provide records in response to Right-to-Know Law (RTKL) requests when directed to do so is not a necessarily incurred cost but rather a routine expense for complying with the RTKL mandates.”  SERS appealed to the Commonwealth Court.

In affirming the OOR, the Commonwealth Court held that since SERS had no statutory duty to create the data compilation but had voluntarily chosen to do so, it could not pass that cost onto the requester.  The Court also found unpersuasive SERS’s argument that it had a statutory duty under its enabling statute and the Retirement Code to operate for the “exclusive benefit” of its members and, thus, had to charge the fee for the time expended.  The Commonwealth Court also rejected SERS’s argument that the OOR had exceeded its authority in establishing duplication fees, as the RTKL expressly authorizes the OOR to establish such fees under 65 P.S. § 67.1307(b)(1)(i).

Although the factual background of the case is somewhat unique in that the agency chose on its own to create a separate document, the holding of this decision should be generally applicable to any claim by an agency which attempts to charge labor costs for complying with RTK requests.  As the court recognized, part of the agency’s obligations under the law is to comply with such requests and it cannot charge fees for doing so nor are such fees “necessarily incurred” under § 1307(g).  This decision is consistent with prior decisions of the Commonwealth Court under prior versions of the RTKL.  See, York Newspapers Inc. v. City of York, 826 A.2d 41 (Pa. Cmwlth. 2003), (the City of York could not charge requester newspapers labor costs of its police officers who had to search archived records potentially responsive to RTK requests).  Hopefully, this decision will signal to agencies not to attempt to charge such costs or fees which only act as impediments to access to open records.

Disclaimer:  This blog is maintained by the members of Nauman Smith’s Media and Right-to-Know Law practice group.  The members of this practice group represent both: 1) media entities, individuals and corporations seeking access to public records, and 2) local municipalities seeking to comply with the law.  THIS BLOG IS NOT MEANT TO BE USED AS LEGAL ADVICE.  The purpose of this blog is to provide educational material for individuals interested in Pennsylvania’s open records law, commonly referred to as the “Right-to-Know Law” or “RTKL”.  The opinions expressed by the individual members of the practice group are solely their own, and do not reflect the opinions of Nauman, Smith, Shissler & Hall, LLP, or the practice group as a whole.

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