Pennsylvania
Pennsylvania has
been considered one of the worst states for access to any records, let alone
electronic records. Reporters in this state have used sourcing and other tactics
to get databases that they might not have a clear right to under the open records
law. The law was updated in 2002. According to the Pennsylvania Newspaper Association,
"The most significant changes to the Act involve the agency’s response
to a records request and the appeals procedure. The definition of what is a
"public record" has not changed."
The law. The
Right to Know Act requires "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"Amending the act of June 21, 1957 (P.L. 390, No. 212).
The act defines an agency as: "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 statute which declares in substance that such organization performs or has for its purpose the performance of an essential governmental function." 65 Pa. Cons. Stat. § 66.1.
The act defines a record as: "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." 65 Pa. Cons. Stat. § 66.1
In addition to the requirements of subsection 65 Pa. Cons. Stat. § 66.2(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. 65 Pa. Cons. Stat. § 66.2 (d).
When responding
to a request for access, an agency shall not be required to create a public
record that 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. 65 Pa. Cons. Stat. § 66.2
(e). If a public record is only maintained electronically or in other non-paper
media, an agency shall, upon request, duplicate the public record on paper when
responding to a request for access in accordance with this act. 65 Pa. Cons.
Stat. § 66.2 (f)
If an agency determines that a public record contains information that is subject
to access as well as information that is not subject to access, the agency’s
response shall grant access to the information that is subject to access and
deny access to the information that is not subject to access. If the information
that 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
that is not subject to access and the response shall grant access to the information
that is subject to access. The agency may not deny access to the public record
if the information that is not subject to access is able to be redacted. Information
that an agency redacts in accordance with this subsection shall be deemed a
denial under 65 Pa. Cons. Stat. § 66.3.3, §66.3.2.
Cases &
opinions. Access was denied to information on a computer tape where the
data was not an account, voucher, contract, minute, order or decision within
the definition of a public record. Mitman v. County Comm’rs of Chester
County, 423 A.2d 1333 (Pa. Commw. Ct. 1980).
A commercial requester was entitled to have access to a computerized list of
subscribers to a state-published magazine, but the agency could choose the form
for releasing that information. The court added that "we expect that the
agency will provide for the implementation of our order in an efficient manner,
fair and suitable for all concerned." Hoffman v. Pa. Game Comm’n,
455 A.2d 731 (Pa. Commw. Ct. 1983). The Right-to-Know Act does not contemplate
forcing state agencies to compile or distribute information they do not solicit
or possess, Dynamic Student Services v. State System of Higher Educ.,
697 A.2d 239 (Pa. 1997).
Fees.
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.
65 Pa. Cons. Stat. §66.7 (b)
If a public record
is only maintained electronically or in other non-paper 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 §66.7 (b) unless the
requester specifically requests for the public record to be duplicated in the
more expensive medium. §66.7 (d)
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. §66.7
(e).
An agency may waive
the fees for duplication of a public record, including, but not limited to,
when the requester duplicates the public record or the agency deems it is in
the public interest to do so. §66.7 (f).
Resources. Pennsylvania Newspaper Association Legal Information; Pennsylvania Center for First Amendment