March 26, 2009

Pennsylvania’s new Right to Know Law (“RTKL”) represents a dramatic policy shift in favor of liberal access to records of public agencies. Under the new RTKL, which took effect on January 1, 2009, the party requesting the information no longer bears the burden of establishing why a record should be released. Rather, the burden has shifted to the agency withholding the record to show why the record should not be released. In other words, all agency records are presumed to be public records unless disclosure is barred by: (1) state or federal law or regulation, or judicial order; (2) an applicable privilege; or, (3) one of the exceptions set forth in the RTKL. The new RTKL also establishes an “Office of Open Records” which, according to its Mission Statement, exists to “enforce the RTKL and to serve as a resource for citizens, public officials and members of the media in obtaining public records of their government.”

The RTKL applies to “all agencies,” which encompasses Commonwealth agencies, local agencies, judicial agencies and/or legislative agencies. The term “record” is broadly defined to include “documents, papers, letters, maps, books, photographs, tapes, film or sound recordings” and information stored electronically. The RTKL contains thirty (30) exceptions to disclosure, which permit an agency to deny access to records in certain circumstances. These exceptions address situations involving confidential personal information or public safety issues. Examples of exceptions include records pertaining or referring to: medical records, social security and drivers’ license numbers, performance evaluations, criminal and non-criminal investigations, and the internal, predecisional deliberations of an agency. In some situations, redaction of records may be appropriate.

What Are The Obligations Of Agencies Under The New RTKL?

Appoint a Right to Know Officer

The RTKL requires each agency to appoint an “Open Records Officer.” The Open Records Officer receives requests submitted to the agency pursuant to the RTKL (“RTK requests”), directs those requests to the appropriate persons within the agency and issues responses under the RTKL. Given the RTKL’s rapid turnaround time in which to respond to requests (in most instances, 5 business days), the Open Records Officer must be familiar with the RTKL and have the ability to respond to RTK requests on a time sensitive basis.

Analyze Records and Implement Necessary Recordkeeping Requirements

Agencies should analyze their records to determine which records are and are not subject to public access under the RTKL. Further, the Office of Open Records anticipates that many news organizations (as part of their year end reviews in December 2009) will file requests with agencies, seeking copies of all RTK requests handled during 2009. These reviews will assess how each agency has complied with the RTKL. It is important, therefore, that agencies maintain accurate and complete records regarding each RTK request, and any response.

Establish Written Policies and Conduct Staff Training

Likewise, agencies should (1) establish a written policy outlining the procedure for handling a RTK request and identifying the Open Records Officer; and, (2) conduct staff training on this procedure.

Update Agency Websites

The RTKL requires an agency to post information on the agency’s website (if applicable) containing: (1) contact information for the agency’s Open Records Officer and the Office of Open Records; (2) a form that may be used to file a request (the Office of Open Records website contains uniform requests forms and sample response letters as resources for agencies); and, (3) policies and procedures of the agency relating to the RTKL.

What Is The Procedure For Obtaining Records Under The New RTKL?

A party requesting information under the RTKL should make a request, in writing, to an agency’s Open Records Officer. Although an agency may honor a verbal request for records, the request must be written if the requester wishes to pursue an appeal under the RTKL. The written request must identify or describe the records sought with sufficient specificity to enable the agency to appropriately respond, and also include the requester’s contact information.

When a RTK request is submitted, the agency must respond, in writing, within five (5) business days, exclusive of the date of receipt. The response must either: (1) grant the request; (2) deny the request, citing the basis for denial; or (3) invoke a 30-day extension. A 30-day extension may be invoked in certain situations specified under the RTKL, such as those involving redaction or a legal review of the request. If an agency fails to respond within the allotted time, the request is deemed denied.

If a requester does not agree with the agency’s decision, he or she may file a written appeal with the Office of Open Records within fifteen (15) business days of the mailing date of the agency’s response. The appeal must state the grounds upon which the requester believes he or she is entitled to access of the record, and include copies of relevant correspondence with the agency. The Office of Open Records has thirty (30) days in which to issue a Final Determination. A Final Determination is binding on the agency. An appeal from a Final Determination must be filed with the appropriate court within thirty (30) days of mailing of the Final Determination.

What Are The Penalties For Violating The RTKL?

The RTKL provides civil penalties of up to $1,500 if an agency denies access to records in bad faith, and up to $500 per day when an agency does not promptly comply with a court order requiring disclosure of records, until the records are produced. The RTKL also contains a provision for an award of attorneys fees for situations where an agency denies records based on an unreasonable interpretation of the law or in bad faith. Likewise, attorneys fees can be awarded when a requester pursues a frivolous RTK request.

Information about the RTKL, as well as guidelines, sample forms and decisions, can be found on the Pennsylvania Office of Open Records website at http://openrecordspa.state.pa.us.