Pennsylvania’s Fledgling Right-to-Know Law Could Face a Major Overhaul

Barely four years old, Pennsylvania’s “new” Right-to-Know Law, (“RTKL”), could be in for a major overhaul.  Senator Dominic Pileggi, the author of the bill which eventually became, in large part, the 2009 law, has introduced a bill this session, SB 444, which would make major amendments to the existing law.  Public hearings have been held concerning the proposed amendments.   This author will be testifying at one currently scheduled for July 17 before the House State Government Committee, chaired by Representative Daryl D. Metcalfe.   The 22-page bill spans a variety of procedural and substantive issues.  Some of the more far-reaching and troubling aspects of the bill are outlined below.

A.  Procedural Amendments.

One of the more laudable aspects of the bill is that it increases several of the time periods involving appeals to the Office of Open Records.  A requester would have 20 business days, instead of the current 15, to file an appeal from a written denial or a deemed denial by an agency to the Office of Open Records.  Agencies would also be required to provide a form on their publicly accessible websites which could be used for filing such an appeal.

The bill also provides some much needed relief to the appeals officers in the Office of Open Records.  An appeals officer could extend the deadline for issuing a final determination by an additional 15 calendar days, so long as, advanced notice is given to both parties.  If a hearing or in-camera review is needed, the hearing officer can extend that deadline for up to 90 additional calendar days.

The bill would also specifically permit the Office of Open Records to conduct in-camera review of documents.  This ability has been challenged by the Commonwealth agencies, since it is not expressly given to the Office of Open Records in the initial legislation.  This is currently the topic of a pending Commonwealth Court case.

Section 1301 would be amended to require the courts to notify the agency, including the Office of Open Records, of the filing of an appeal.

B.  Definitions

Several amendments would be made to Section 102, the definition section of the RTKL.  Notably, a definition of “commercial purpose” would be added in conjunction with Sections 707 and 1307 which would require a requester to reveal whether the request was for a commercial purpose.  If so, the agency would be permitted to charge a fee limited to no more than the hourly wage of the lowest paid public employee who is capable of responding to the request.  Scientific, educational and media requesters would be excluded from this requirement.

The definition of “local agency” would be amended to specifically include economic and industrial development authorities and, notably, the campus police department of a state-owned or state-related college or university.  This would presumptively bring under the purview of the RTKL the campus police departments of Penn State, Pitt, Temple and Lincoln Universities.  However, the criminal and non-criminal investigative exemptions under Section 708(b)(16) and (17) would still block most records of these departments from public view.

The amendments would also add to the definition of “personal financial information” forms required to be filed by a taxpayer with any federal or Commonwealth taxing authority.  This proposed amendment is particularly troubling since it appears to include real estate assessment and tax records which must remain public for the efficient transfer of real estate within the Commonwealth.

C.  Electronic Records.

One other laudable aspects of the bill would be to specifically designate that, if a record exists in a particular computer file or format or other format requested, the agency would be required to produce the record in that format and not be able to deny the request on the basis it would require the creation of a record.

D.  Additional Exemptions.

The proposed bill would add 4 new exemptions and expand coverage of 6 others.  Added as exempt would be payment records of persons receiving public utility, sewer or municipal services and the tax payment records in the possession of a tax collector.  The bill would also add another new category specifically exempting an agency’s bank account numbers, routing numbers, credit cards or passwords.  The records of various volunteer emergency services agencies such as fire and ambulance companies would be exempted.

Expanded exemptions involve Section 708(b)(10) which would apply the pre-decisional deliberation exemption to records that reflect, contain or include such deliberations.  A companion addition to this section would make it clear that a record that is presented to a quorum of an agency for deliberation is not exempt regardless of whether a vote occurs or not.  Section 708(b)(13) would be expanded to protect not only the identity of a donor but also financial information relating to that donor.  Section 708(b)(17) would make public safety inspection reports made under state or federal law public even though they may generally be exempt as non-criminal investigative records.   Section 708(b)(18) would specify that the home addresses of individuals who access emergency services would be exempt.

As part of the exemption of “tax records” and municipal services records, the bill would provide that a “clearance certificate” must be provided which indicates whether fees and charges are owed or have been paid and allows the charging of a “reasonable fee” for that certificate.  However, the bill does not address the timeframe within which that certificate is to be provided or what constitutes a “reasonable fee”.   Both of these have been significant impediments to the timely acquisition of real estate tax records in the hands of tax collectors in the past.  This amendment would potentially exacerbate these problems.

E.  Other Noteworthy Amendments.

One of the more interesting provisions of the bill would be the proposed Section 508 which would prohibit inmates from being requesters under the act except as to a limited amount of information related directly to them and their incarceration, finances or discipline.  Although prisoner requests comprise a large percentage of requests and appeals to the Office of Open Records (31% in 2012), the constitutionality of such a provision is questionable.

The bill also would add language to Section 506 (disruptive request) which would allow an agency to go to court if it believes it has been presented with an “unduly burdensome request or requests” to seek a protective order which could prohibit the release of the records and/or provide only certain records be released.  Included in this provision would be the ability to refuse to respond to a request for documents involved in litigation, if they were previously made available in discovery.

Finally, another troubling aspect of the proposed bill would be to limit the amount of records available regarding third parties who contract with agencies.  The amendment would limit the “public” records available to the contract between the third party and the agency and records of the agency “relating to the contract.”  Although such a provision appears logical on its face, it could potentially block access to records which are currently public.  Public access to records relating to public funds flowing to private contractors and vendors should remain public to the fullest extent possible.

As with all legislation, it remains to be seen what portions of the bill will actually become law.  Numerous other bills have been introduced in both the House and Senate addressing various aspects of Right-to-Know issues such as home addresses, including the state-related universities specifically within the requirements of the Right-to-Know Law and charging “commercial requesters” with various types of fees.  It is hoped that any amendments that are made will be done so to improve the law and its effectiveness in promoting access and not to bow to the whims or complaints of special interest groups.

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