Pennsylvania Act 1957-212 — RIGHT-TO-KNOW LAW - REPEALED (EFF. 01/01/09)

Act text

RIGHT-TO-KNOW LAW - REPEALED (EFF. 01/01/09)
                 Act of Jun. 21, 1957, P.L. 390, No. 212              Cl. 02
                                  AN ACT

     Requiring certain records of the Commonwealth and its political
        subdivisions and of certain authorities and other agencies
        performing essential governmental functions, to be open for
        examination and inspection by citizens of the Commonwealth of
        Pennsylvania; authorizing such citizens under certain
        conditions to make extracts, copies, photographs or
        photostats of such records; and providing for appeals to the
        courts of common pleas.

                             Table of Contents

     Section 1.  Definitions.
     Section 2.  Procedure for access to public records.
     Section 3.  (Repealed).
     Section 3.1. Access to public records.
     Section 3.2. Redaction.
     Section 3.3. Commonwealth agency's response to written
                    requests for access.
     Section 3.4. Non-Commonwealth agency's response to
                    written requests for access.
     Section 3.5. Final agency determination.
     Section 4.  Judicial appeal.
     Section 4.1. Court costs and attorney fees.
     Section 5.  Penalties.
     Section 6.  Immunity.
     Section 7.  Fee limitations.
     Section 8.  Implementation.
     Section 9.  Practice and procedure.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

     Section 1.  Definitions.
        The following words and phrases when used in this act shall
     have the meanings given to them in this section unless the
     context clearly indicates otherwise:
        "Agency."  Any office, department, board or commission of the
     executive branch of the Commonwealth, any political subdivision
     of the Commonwealth, the Pennsylvania Turnpike Commission, the
     State System of Higher Education or any State or municipal
     authority or similar organization created by or pursuant to a
     statute which declares in substance that such organization
     performs or has for its purpose the performance of an essential
     governmental function.
        "Commonwealth agency."  An agency which is a Commonwealth
     agency as that term is defined under 62 Pa.C.S. § 103 (relating
     to definitions).
        "Non-Commonwealth agency."  An agency which is not a
     Commonwealth agency.
        "Public record."  Any account, voucher or contract dealing
     with the receipt or disbursement of funds by an agency or its
     acquisition, use or disposal of services or of supplies,
     materials, equipment or other property and any minute, order or
     decision by an agency fixing the personal or property rights,
     privileges, immunities, duties or obligations of any person or
     group of persons: Provided, That the term "public records" shall
     not mean any report, communication or other paper, the
     publication of which would disclose the institution, progress or
     result of an investigation undertaken by an agency in the
     performance of its official duties, except those reports filed
     by agencies pertaining to safety and health in industrial
     plants; it shall not include any record, document, material,
     exhibit, pleading, report, memorandum or other paper, access to
     or the publication of which is prohibited, restricted or
     forbidden by statute law or order or decree of court, or which
     would operate to the prejudice or impairment of a person's
     reputation or personal security, or which would result in the
     loss by the Commonwealth or any of its political subdivisions or
     commissions or State or municipal authorities of Federal funds,
     excepting therefrom however the record of any conviction for any
     criminal act.
        "Record."  Any document maintained by an agency, in any form,
     whether public or not.
        "Requester."  A person who is a resident of the Commonwealth
     and requests a record pursuant to this act.
        "Response."  Access to a record or an agency's written notice
     granting, denying or partially granting and partially denying
     access to a record.
        (1 amended June 29, 2002, P.L.663, No.100)
     Section 2.  Procedure for access to public records.
        (a)  General rule.--Unless otherwise provided by law, a
     public record shall be accessible for inspection and duplication
     by a requester in accordance with this act. A public record
     shall be provided to a requester in the medium requested if the
     public record exists in that medium; otherwise, it shall be
     provided in the medium in which it exists. Public records shall
     be available for access during the regular business hours of an
     agency. Nothing in this act shall provide for access to a record
     which is not a public record.
        (b)  Requests.--Agencies may fulfill verbal requests for
     access to records and anonymous requests for access to records.
     In the event that the requester wishes to pursue the relief and
     remedies provided for in this act, the requester must initiate
     such relief with a written request.
        (c)  Written requests.--A written request for access to
     records may be submitted in person, by mail, by facsimile or, to
     the extent provided by agency rules, any other electronic means.
     A written request shall be addressed to the agency head or other
     person designated in the rules established by the agency. A
     written request should identify or describe the records sought
     with sufficient specificity to enable the agency to ascertain
     which records are being requested and shall include the name and
     address to which the agency should address its response. A
     written request need not include any explanation of the
     requester's reason for requesting or intended use of the
     records.
        (d)  Electronic access.--In addition to the requirements of
     subsection (a), an agency may make its public records available
     through any publicly accessible electronic means. If access to a
     public record is routinely available by an agency only by
     electronic means, the agency shall provide access to inspect the
     public record at an office of the agency.
        (e)  Creation of a public record.--When responding to a
     request for access, an agency shall not be required to create a
     public record which does not currently exist or to compile,
     maintain, format or organize a public record in a manner in
     which the agency does not currently compile, maintain, format or
     organize the public record.
        (f)  Conversion of an electronic record to paper.--If a
     public record is only maintained electronically or in other
     nonpaper media, an agency shall, upon request, duplicate the
     public record on paper when responding to a request for access
     in accordance with this act.
        (g)  Retention of records.--Nothing in this act is intended
     to modify, rescind or supersede any record retention and
     disposition schedule established pursuant to law.
        (2 amended June 29, 2002, P.L.663, No.100)

        Compiler's Note:  Section 7 of Act 100 of 2002, which amended
            section 2, provided that, if an agency receives a request
            for a record that is subject to a confidentiality
            agreement executed before the effective date of Act 100,
            the law in effect at the time the agreement was executed,
            including judicial interpretation of the law, shall
            govern access to the record, even if the record is a
            public record unless all parties to the confidentiality
            agreement agree in writing to be governed by Act 100.
        Section 3.  (3 repealed June 29, 2002, P.L.663, No.100)
     Section 3.1.  Access to public records.
        An agency may not deny a requester access to a public record
     due to the intended use of the public record by the requester.
        (3.1 added June 29, 2002, P.L.663, No.100)
     Section 3.2.  Redaction.
        If an agency determines that a public record contains
     information which is subject to access as well as information
     which is not subject to access, the agency's response shall
     grant access to the information which is subject to access and
     deny access to the information which is not subject to access.
     If the information which is not subject to access is an integral
     part of the public record and cannot be separated, the agency
     shall redact from the public record the information which is not
     subject to access, and the response shall grant access to the
     information which is subject to access. The agency may not deny
     access to the public record if the information which is not
     subject to access is able to be redacted. Information which an
     agency redacts in accordance with this subsection shall be
     deemed a denial under section 3.3.
        (3.2 added June 29, 2002, P.L.663, No.100)
     Section 3.3.  Commonwealth agency's response to written requests
                    for access.
        (a)  General rule.--Upon receipt of a written request for
     access to a record, a Commonwealth agency shall make a good
     faith effort to determine if the record requested is a public
     record and to respond as promptly as possible under the
     circumstances existing at the time of the request but shall not
     exceed ten business days from the date the written request is
     received by the Commonwealth agency head or other person
     designated by the Commonwealth agency for receiving such
     requests. If the Commonwealth agency fails to send the response
     within ten business days of receipt of the written request for
     access, the written request for access shall be deemed denied.
        (b)  Exception.--Upon receipt of a written request for
     access, if a Commonwealth agency determines that one of the
     following applies:
            (1)  the request for access requires redaction of a
        public record in accordance with section 3.2;
            (2)  the request for access requires the retrieval of a
        record stored in a remote location;
            (3)  a timely response to the request for access cannot
        be accomplished due to bona fide and specified staffing
        limitations;
            (4)  a legal review is necessary to determine whether the
        record is a public record subject to access under this act;
            (5)  the requester has not complied with the Commonwealth
        agency's policies regarding access to public records; or
            (6)  the requester refuses to pay applicable fees
        authorized by section 7 of this act,
     the Commonwealth agency shall send written notice to the
     requester within ten business days of the Commonwealth agency's
     receipt of the request for access. The notice shall include a
     statement notifying the requester that the request for access is
     being reviewed, the reason for the review and a reasonable date
     that a response is expected to be provided. If the date that a
     response is expected to be provided is in excess of 30 days,
     following the ten business days allowed for in subsection (a),
     the request for access shall be deemed denied.
        (c)  Denial.--If a Commonwealth agency's response is a denial
     of a written request for access, whether in whole or in part, a
     written response shall be issued and include:
            (1)  A description of the record requested.
            (2)  The specific reasons for the denial, including a
        citation of supporting legal authority. If the denial is the
        result of a determination that the record requested is not a
        public record, the specific reasons for the agency's
        determination that the record is not a public record shall be
        included.
            (3)  The typed or printed name, title, business address,
        business telephone number and signature of the public
        official or public employee on whose authority the denial is
        issued.
            (4)  Date of the response.
            (5)  The procedure to appeal the denial of access under
        this act.
        (d)  Certified copies.--If a Commonwealth agency's response
     grants a request for access, the Commonwealth agency shall, upon
     request, provide the requester with a certified copy of the
     public record if the requester pays the applicable fees pursuant
     to section 7.
        (3.3 added June 29, 2002, P.L.663, No.100)
     Section 3.4.  Non-Commonwealth agency's response to written
                    requests for access.
        (a)  General rule.--Upon receipt of a written request for
     access to a record, a non-Commonwealth agency shall make a good
     faith effort to determine if the record requested is a public
     record and to respond as promptly as possible under the
     circumstances existing at the time of the request but shall not
     exceed five business days from the date the written request is
     received by the non-Commonwealth agency head or other person
     designated in the rules established by the non-Commonwealth
     agency for receiving such requests. If the non-Commonwealth
     agency fails to send the response within five business days of
     receipt of the written request for access, the written request
     for access shall be deemed denied.
        (b)  Exception.--Upon receipt of a written request for
     access, if a non-Commonwealth agency determines that one of the
     following applies:
            (1)  the request for access requires redaction of a
        public record in accordance with section 3.2;
            (2)  the request for access requires the retrieval of a
        record stored in a remote location;
            (3)  a timely response to the request for access cannot
        be accompanied due to bona fide and specified staffing
        limitations;
            (4)  a legal review is necessary to determine whether the
        record is a public record subject to access under this act;
            (5)  the requester has not complied with the non-
        Commonwealth agency's policies regarding access to public
        records; or
            (6)  the requester refuses to pay applicable fees
        authorized by section 7,
     the non-Commonwealth agency shall send written notice to the
     requester within five business days of the non-Commonwealth
     agency's receipt of the request notifying the requester that the
     request for access is being reviewed, the reason for the review
     and a reasonable date that a response is expected to be
     provided. If the date that a response is expected to be provided
     is in excess of 30 days, following the five business days
     allowed in subsection (a), the request for access shall be
     deemed denied.
        (c)  Denial.--If a non-Commonwealth agency's response is a
     denial of a written request for access, whether in whole or in
     part, a written response shall be issued and include:
            (1)  A description of the record requested.
            (2)  The specific reasons for the denial, including a
        citation of supporting legal authority. If the denial is the
        result of a determination that the record requested is not a
        public record, the specific reasons for the agency's
        determination that the record is not a public record shall be
        included.
            (3)  The typed or printed name, title, business address,
        business telephone number and signature of the public
        official or public employee on whose authority the denial is
        issued.
            (4)  Date of the response.
            (5)  The procedure to appeal the denial of access under
        this act.
        (d)  Certified copies.--If a non-Commonwealth agency's
     response grants a request for access, the non-Commonwealth
     agency shall, upon request, provide the requester with a
     certified copy of the public record if the requester pays the
     applicable fees pursuant to section 7.
        (3.4 added June 29, 2002, P.L.663, No.100)

        Compiler's Note:  The word "accompanied" in subsection (b)(3)
     probably should read "accomplished".
     Section 3.5.  Final agency determination.
        (a)  Filing of exceptions.--If a written request for access
     is denied or deemed denied, the requester may file exceptions
     with the head of the agency denying the request for access
     within 15 business days of the mailing date of the agency's
     response or within 15 days of a deemed denial. The exceptions
     shall state grounds upon which the requester asserts that the
     record is a public record and shall address any grounds stated
     by the agency for delaying or denying the request.
        (b)  Determination.--Unless the requester agrees otherwise,
     the agency head or his designee shall make a final determination
     regarding the exceptions within 30 days of the mailing date of
     the exceptions. Prior to issuing the final determination
     regarding the exceptions, the agency head or his designee may
     conduct a hearing. The determination shall be the final order of
     the agency. If the agency head or his designee determines that
     the agency correctly denied the request for access, the agency
     head or his designee shall provide a written explanation to the
     requester of the reason for the denial.
        (3.5 added June 29, 2002, P.L.663, No.100)
     Section 4.  Judicial appeal.
        (a)  Commonwealth agency.--Within 30 days of the mailing date
     of a final determination of a Commonwealth agency affirming the
     denial of access, a requester may file a petition for review or
     other document as might be required by rule of court with the
     Commonwealth Court.
        (b)  Other agency.--Within 30 days of a denial by a non-
     Commonwealth agency under section 3.4(c) or of the mailing date
     of a final determination of a non-Commonwealth agency affirming
     the denial of access, a requester may file a petition for review
     or other document as might be required by rule of court with the
     court of common pleas for the county where the non-Commonwealth
     agency's office or facility is located or bring an action in the
     local magisterial district. A requester is entitled to a
     reasoned decision containing findings of fact and conclusions of
     law based upon the evidence as a whole which clearly and
     concisely states and explains the rationale for the decisions so
     that all can determine why and how a particular result was
     reached.
        (c)  Notice.--An agency shall be served notice of actions
     commenced in accordance with subsection (a) or (b) and shall
     have an opportunity to respond in accordance with applicable
     court rules.
        (d)  Record on appeal.--The record before a court shall
     consist of the request, the agency's response, the requester's
     exceptions, if applicable, the hearing transcript, if any, and
     the agency's final determination, if applicable.
        (4 amended June 29, 2002, P.L.663, No.100)
     Section 4.1.  Court costs and attorney fees.
        (a)  Reversal of agency determination.--If a court reverses
     an agency's final determination, the court may award reasonable
     attorney fees and costs of litigation or an appropriate portion
     thereof to a requester if the court finds either of the
     following:
            (1)  the agency willfully or with wanton disregard
        deprived the requester of access to a public record subject
        to access under the provisions of this act; or
            (2)  the exemptions, exclusions or defenses asserted by
        the agency in its final determination were not based on a
        reasonable interpretation of law.
        (b)  Sanctions for frivolous requests or appeals.--If a court
     affirms an agency's final determination, the court may award
     reasonable attorney fees and costs of litigation or an
     appropriate portion thereof to the agency if the court finds
     that the legal challenge to the agency's final determination was
     frivolous.
        (c)  Other sanctions.--Nothing in this act shall prohibit a
     court from imposing penalties and costs in accordance with
     applicable rules of court.
        (4.1 added June 29, 2002, P.L.663, No.100)
     Section 5.  Penalties.
        (a)  Summary offense.--An agency or public official who
     violates this act with the intent and purpose of violating this
     act commits a summary offense subject to prosecution by the
     Attorney General or the appropriate district attorney and shall,
     upon conviction, be sentenced to pay a fine of not more than
     $300 plus costs of prosecution.
        (b)  Civil penalty.--An agency or public official who does
     not promptly comply with a court order under this act is subject
     to a civil penalty of not more than $300 per day until the
     public records are provided.
        (5 added June 29, 2002, P.L.663, No.100)
     Section 6.  Immunity.
        (a)  General rule.--Except as provided in sections 4.1 and 5
     and other statutes governing the release of records, no agency,
     public official or public employee shall be liable for civil or
     criminal damages or penalties resulting from compliance or
     failure to comply with this act.
        (b)  Schedules.--No agency, public official or public
     employee shall be liable for civil or criminal damages or
     penalties under this act for complying with any written public
     record retention and disposition schedule.
        (6 added June 29, 2002, P.L663, No.100)
     Section 7.  Fee limitations.
        (a)  Postage.--Fees for postage may not exceed the actual
     cost of mailing.
        (b)  Duplication.--Fees for duplication by photocopying,
     printing from electronic media or microfilm, copying onto
     electronic media, transmission by facsimile or other electronic
     means and other means of duplication must be reasonable and
     based on prevailing fees for comparable duplication services
     provided by local business entities.
        (c)  Certification.--An agency may impose reasonable fees for
     official certification of copies if the certification is at the
     behest of the requester and for the purpose of legally verifying
     the public record.
        (d)  Conversion to paper.--If a public record is only
     maintained electronically or in other nonpaper media,
     duplication fees shall be limited to the lesser of the fee for
     duplication on paper or the fee for duplication in the native
     media as provided by subsection (b) unless the requester
     specifically requests for the public record to be duplicated in
     the more expensive medium.
        (e)  Enhanced electronic access.--If an agency offers
     enhanced electronic access to public records in addition to
     making the public records accessible for inspection and
     duplication by a requester as required by this act, the agency
     may establish user fees specifically for the provision of the
     enhanced electronic access, but only to the extent that the
     enhanced electronic access is in addition to making the public
     records accessible for inspection and duplication by a requester
     as required by this act. The user fees for enhanced electronic
     access may be a flat rate, a subscription fee for a period of
     time, a per-transaction fee, a fee based on the cumulative time
     of system access or any other reasonable method and any
     combination thereof. The user fees for enhanced electronic
     access must be reasonable and may not be established with the
     intent or effect of excluding persons from access to public
     records or duplicates thereof or of creating profit for the
     agency.
        (f)  Waiver of fees.--An agency may waive the fees for
     duplication of a public record, including, but not limited to,
     when:
            (1)  the requester duplicates the public record; or
            (2)  the agency deems it is in the public interest to do
        so.
        (g)  Limitations.--Except as otherwise provided by statute,
     no other fees may be imposed unless the agency necessarily
     incurs costs for complying with the request, and such fees must
     be reasonable. No fee may be imposed for an agency's review of a
     record to determine whether the record is a public record
     subject to access in accordance with this act.
        (h)  Prepayment.--Prior to granting a request for access in
     accordance with this act, an agency may require a requester to
     prepay an estimate of the fees authorized under this section if
     the fees required to fulfill the request are expected to exceed
     $100.
        (7 added June 29, 2002, P.L.663, No.100)
     Section 8.  Implementation.
        (a)  Requirement.--An agency shall establish written policies
     and may promulgate regulations necessary to implement this act.
        (b)  Content.--The written policies shall include the name of
     the office to which requests for access shall be addressed and a
     list of applicable fees.
        (c)  Prohibition.--A policy or regulation may not include any
     of the following:
            (1)  A limitation on the number of public records which
        may be requested or made available for inspection or
        duplication.
            (2)  A requirement to disclose the purpose or motive in
        requesting access to records which are public records.
        (d)  Posting.--The policies shall be conspicuously posted at
     the agency and may be made available by electronic means.
        (8 added June 29, 2002, P.L.663, No.100)
     Section 9.  Practice and procedure.
        The provisions of 2 Pa.C.S. (relating to administrative law
     and procedure) shall not apply to this act.
        (9 added June 29, 2002, P.L.663, No.100)