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Pennsylvania

Open Government Guide

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Author

Charles Kelly, Esq.
John A. Marty, Esq.
Wesley Mishoe, Esq.
John R. Dixon, Esq.
SAUL EWING ARNSTEIN & LEHR
One PPG Place, 30th Floor
Pittsburgh, PA 15222
(412) 209-2500
Charles.Kelly@saul.com

The authors thank Ashley Saul (J.D. candidate, University of Miami) and Brian Piper (J.D. candidate, University of Florida) for their important contributions and assistance in writing this chapter. The authors also give special thanks to Robert C. Clothier and Beth L. Weisser, whose efforts in writing the first edition of this guide laid the critical foundation upon which this chapter was built, as well as Terry Mutchler, for her contribution to this update.

Last updated Oct. 4, 2019

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Foreword

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

A requester need only be a “[a] person that is a legal resident of the United States.”  65 Pa. Stat. Ann. § 67.102. Thus, undocumented immigrants have no rights of access in Pennsylvania. However, the term “person” is not limited to individuals. See, e.g., Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609, 615 (Pa. Commw. Ct. 2009) (citing Tribune-Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008); Digital-Ink, Inc. v. Dep’t of Gen. Servs., 923 A.2d 1262 (Pa. Commw. Ct. 2007); Sapp Roofing Co., Inc. v. Sheet Metal Workers' Int’l Ass’n, 713 A.2d 627 (Pa. 1998); Tapco, Inc. v. Twp. of Neville, 695 A.2d 460 (Pa. Commw. Ct. 1997)).

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2. Purpose of request

The Right to Know Law (the “Law”) states that a commonwealth, local, legislative or judicial agency “may not deny a requester access to a record due to the intended use of the record by a requester unless otherwise provided by law.” 65 Pa. Stat. Ann. §§ 67. 301(b), 302(b), 303(b) & 304(b); see also § 703 (“A written request need not include any explanation of the requester’s reason for requesting or intended use of the records unless otherwise required by law.”). Indeed, agencies are forbidden from even asking for this information. See 65 Pa. Stat. Ann. §§ 67.1308 (expressly prohibiting agencies from creating a policy or regulation that requires a requester to “disclose the purpose or motive in requesting access to records”).

This is consistent with precedent set under the old, pre-2008 law known as the Right to Know Act [hereinafter, the “act”] holding that a requester’s purpose and intended use of the requested records are irrelevant to his or her right of access. See, e.g., Pa. State Educ. Ass’n v. Pennsylvania, 4 A.3d 1156, 1162 (Pa. Commw. Ct. 2016) (citing amendments to the 1957 Right-to-Know Law making the motive of a request irrelevant to accessibility of the record at issue); see also Wiley v. Woods, 141 A.2d 844, 849 (Pa. 1958); Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208, 213 (Pa. Commw. Ct. 1995); Hoffman v. Pa. Game Comm’n, 455 A.2d 731 (Pa. Commw. Ct. 1983).

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3. Use of records

Although the Law is silent, cases applying the old act have held that the act imposes no restrictions on subsequent use of the material obtained. See Hoffman v. Pa. Game Comm’n, 455 A.2d 731 (Pa. Commw. Ct. 1983) (rejecting Game Commission’s objections to access based on grounds that requester sought the information “for commercial purposes”) (interpreting prior version of Right to Know Act).  Under the new Law, the rule persists.

The Law does not act as a bar to discovery or use of information in a civil proceeding. See Commonwealth v. Kauffman, 605 A.2d 1243, 1245-46 (Pa. Super. 1992) (interpreting prior version of Right to Know Act).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

The Law identifies several different kinds of agencies and entities subject to access requirements: Commonwealth agencies, independent agencies, state-affiliated entities, local agencies, legislative agencies, judicial agencies, and state-related institutions.

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1. Executive branch

The Law applies to the executive branch at the state and local agency level, both of which are defined in the Law.

Commonwealth Agency: This is defined as follows: “Any office, department, authority, board, multistate agency or commission of the executive branch; an independent agency; and a State-affiliated entity.” It includes: “(i) The Governor's Office; (ii) The Office of Attorney General, the Department of the Auditor General and the Treasury Department; and (iii) An organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function.” 65 Pa. Stat. Ann. § 67.102.

This definition includes an “independent agency” and “state-affiliated entity,” which are both defined separately. It does not include a judicial or legislative agency.
·      An independent agency is defined as follows: “Any board, commission or other agency or officer of the Commonwealth, that is not subject to the policy supervision and control of the Governor. The term does not include a legislative or judicial agency.”
·      A state-affiliated entity is defined as follows: “A Commonwealth authority or Commonwealth entity. The term includes the Pennsylvania Higher Education Assistance Agency and any entity established thereby, the Pennsylvania Gaming Control Board, the Pennsylvania Game Commission, the Pennsylvania Fish and Boat Commission, the Pennsylvania Housing Finance Agency, the Pennsylvania Municipal Retirement Board, the State System of Higher Education, a community college, the Pennsylvania Turnpike Commission, the Pennsylvania Public Utility Commission, the Pennsylvania Infrastructure Investment Authority, the State Public School Building Authority, the Pennsylvania Interscholastic Athletic Association and the Pennsylvania Educational Facilities Authority. The term does not include a State-related institution.”

This definition contains a “catch-all” provision that includes organizations that perform essential government functions. This provision is similar to the version contained in the old act, except that it no longer requires that the entity’s statutory origins “declare[] in substance or in purpose” such a function. Under the prior act, this catch-all was construed fairly narrowly, and applied only where “the organization provides constitutionally mandated services or services indisputably necessary to the continued existence of the Commonwealth.” See Safety, Agric., Villages & Env’t (S.A.V.E.) v. Del. Valley Reg’l Planning Comm’n, 819 A.2d 1235, 1241 (Pa. Commw. Ct. 2003) (citing Cmty. Coll. of Phila. v. Brown, 674 A.2d 670 (Pa. 1996)); see also Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609, 615-16 (Pa. Commw. Ct. 2009) (citing S.A.V.E., 819 A.2d at 1241).

Commonwealth agencies are required to provide access to “public records” as set forth in the Law. 65 Pa. Stat. Ann. § 67.301.

Local Agency: This includes “any of the following: (1) Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school. (2) Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.” 65 Pa. Stat. Ann. § 67.102.  Local agencies are required to provide access to “public records” as set forth in the Law. 65 Pa. Stat. Ann. § 67.302.

By its terms, the Law applies to public records of “the executive branch,” and specifically includes the governor’s office. The Law makes no accessibility distinction based on the function of the agency or office at issue.

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2. Legislative bodies

The Law applies to “legislative agencies.” This “includes any of the following: (1) The Senate. (2) The House of Representatives. (3) The Capitol Preservation Committee. (4) The Center for Rural Pennsylvania. (5) The Joint Legislative Air and Water Pollution Control and Conservation Committee. (6) The Joint State Government Commission. (7) The Legislative Budget and Finance Committee. (8) The Legislative Data Processing Committee. (9) The Independent Regulatory Review Commission. (10) The Legislative Reference Bureau. (11) The Local Government Commission. (12) The Pennsylvania Commission on Sentencing. (13) The Legislative Reapportionment Commission. (14) The Legislative Office of Research Liaison. (15) The Legislative Audit Advisory Commission.” 65 Pa. Stat. Ann. § 67.102.

Legislative agencies are required to provide access to “legislative records” as set forth in the Law.  Examples include financial records, bills or resolutions that have been introduced, and proposed regulations.  The old act did not apply to the legislative branch of state government.  See Commonwealth v. Fenstermaker, 530 A.2d 414 (Pa. 1987).

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3. Courts

The Law applies to “judicial agencies.” This is defined as follows: “A court of the Commonwealth or any other entity or office of the unified judicial system.” 65 Pa. Stat. Ann. § 67.102.

However, judicial agencies need only provide access to “financial records” as set forth in the Law.  See 65 Pa. Stat. Ann. § 67.304.  In 2009, the Administrative Office of Pennsylvania Courts (“AOPC”) modified Pennsylvania Rule of Judicial Administration 509.  See Pa. R.J.A. 509 (“The term 'financial records' is defined as any account, contract, invoice or equivalent dealing with: 1) the receipt or disbursement of funds appropriated to the system; or 2) acquisition, use or disposal of services, supplies, materials, equipment or property secured through funds appropriated to the system.”). By eliminating the phrase “custody or control,” the AOPC now permits access to judicial agency “financial records” even when that entity does not currently possess them.

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4. Nongovernmental bodies

The Law provides a number of examples where records in the hands of bodies receiving public funds or benefits are public records.

The Law expressly applies to certain records of “state-related institutions.” This includes Temple University, the University of Pittsburgh, Pennsylvania State University, and Lincoln University. 65 Pa. Stat. Ann. §§ 67.102, 67.1501. State-related institutions are required to file “reports” as set forth in 65 Pa. Stat. Ann. § 67.1502-1504.

The Law also states that:

“[A] public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under the act, shall be considered a public record of the agency for purposes of this act.”

65 Pa. Stat. Ann. § 67.506(d).

The Commonwealth Court has interpreted the phrase “directly relates to the governmental function” found in 65 Pa. Stat. Ann. § 67.506(d).  See Edinboro Univ. of Pa. v. Ford, 18 A.3d 1278 (Pa. Commw. Ct. 2011); Giurintano v. Dep’t of Gen. Servs., 20 A.3d 613 (Pa. Commw. Ct. 2011) (holding that services performed on behalf of a private entity outside of the government contract are not accessible); Allegheny Cty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025 (Pa. Commw. Ct. 2011) (remanding the case to the trial court because it failed to hear evidence regarding the private entity’s government contract); Buehl v. Office of Open Records, 6 A.3d 27 (Pa. Commw. Ct. 2010); E. Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Commw. Ct. 2010).

Pennsylvania courts analyze this phrase in two parts; the document must have: 1) a governmental function and 2) a direct relationship.

Under the first prong, the Commonwealth Court considered whether fundraising for a state university constitutes a “governmental function.”  E. Stroudsburg, 995 A.2d at 499-500.  Relying on Iowa case law, the court held that a non-governmental body performs governmental functions when it performs “normal government business.”  Id. at 505 (citing Gannon v. Bd. of Regents, 692 N.W.2d 31 (Iowa 2005)).  The Commonwealth Court construed the term “business” to mean any duty arising out of a contract with a government agency.  Id.  Hence, non-governmental entities’ records will be subject to the Law so long as they owe a contractual duty to a government agency.  Id.

Under the second prong, Buehl considered whether contractual duties owed to a government agency directly related to records requested by an inmate. Buehl, 6 A.3d at 28. The Commonwealth Court affirmed the Office of Open Records’ denial of the inmate’s request for documentation of the wholesale cost of goods a private entity sold through a state prison’s commissary system. Id. The court distinguished records kept in the private company’s “normal scope of business” from those which directly relate to the performance of the government contract.  Id. at 30 (citing E. Stroudsburg., 995 A.2d at 504); see also Office of Gov. v. Bari, 20 A.3d 634, 641 (Pa. Commwlth. Ct. 2011) (holding that when an agency appoints a member to a private non-profit board it is not transacting business with that organization).  The court in Buehl reasoned that the private company’s obligations under the contract only pertained to the sale of goods in the prison and not the purchase of those goods from its supplier.  Id.  Hence, it held that the inmate had requested documents which were not “public records” under the language of 65 Pa. Stat. Ann. § 67.506(d)(2). Id.; see also A Second Chance, Inc., 13 A.3d at 1040 (remanding to the fact-finder to hear evidence on the relationship between the record requested and the government contract); compare A Second Chance, Inc., with Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009) (noting that provider agreements between a Medicaid managed care program and the Department of Public Welfare constitute “public records” subject to disclosure).

Note that the requester may not seek such records from the third party; rather, the requester must seek them from the agency: “A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency.” 65 Pa. Stat. Ann. § 67.506(d)(3).

Of course, if the legislature says that a particular body is an agency under the Act, then the body must comply with the Act’s requirements. Cf. Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (where a private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation specifically stated that it was deemed an agency under the Sunshine Act) (interpreting 71 Pa. C.S.A. § 632(d)).

“State-related institutions:” The presence of 12 state-appointed trustees on a 36-member university board did not transform an essentially private university (a land grant university) into a state “agency” under the old act. Mooney v. Bd. of Trustees, 292 A.2d 395, 399 (Pa. 1972) (interpreting the old act). However, these “state-related institutions” (Temple University, The University of Pittsburgh, The Pennsylvania State University, and Lincoln University) are subject to provide an annual public report that includes salary information and  “all information required by Form 990.”65 Pa. Con. Stat. § 67.1501-03.

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5. Multi-state or regional bodies

The Law does not identify any such bodies.

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6. Advisory boards and commissions, quasi-governmental entities

No advisory boards, commissions or quasi-governmental bodies are explicitly identified in the Law. Under the old act, in effect before 2008, purely advisory entities were not considered agencies subject to the disclosure requirements of that law. See Safety, Agric., Villages and Env’t (S.A.V.E.) v. Delaware Valley Reg’l Planning Comm’n, 819 A.2d 1235 (Pa. Commw. Ct. 2003) (explaining that the Delaware Valley Regional Planning Commission is not an agency subject to the old law because it acts only in an advisory capacity and “cannot be considered an organization performing ‘essential’ services”).

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7. Others

None other than those identified infra.

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C. What records are and are not subject to the act?

The Right to Know Law requires that commonwealth and local agencies provide access to “public records,” that legislative agencies provide access to “legislative records,” and that judicial agencies provide access to “financial records.” 65 Pa. Stat. Ann. §§ 67.301-304.  The Law states that such records are then “presumed to be available in accordance with the act.” 65 Pa. Stat. Ann. § 67.305; see also Edinboro Univ. of Pa. v. Ford, 18 A.3d 1278 (Pa. Commw. Ct. 2011) (holding that records are deemed “public” as soon as an agency “receives” them from a non-governmental entity). That presumption, however, “shall not apply” if the record is “exempt” under the Law, “protected by privilege,” or “exempt from disclosure under any other state or federal law or regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.305. Further, the requester bears the burden of proving that the agency possesses or controls the relevant records. See, e.g., Office of Gov. v. Bari, 20 A.3d 634, 640 (Pa. Commw. Ct. 2011); see also Bohman v. Clinton Twp. Vol. Fire Co., 1238 C.D. 2017, 2019 WL 2399964, at *8 (Pa. Cmmw. May 8, 2019).

The Law, however, has a large list of documents exempted from disclosure. The burden rests on the commonwealth, local, legislative or judicial agency to prove that the record is exempt. 65 Pa. Stat. Ann. § 67.708(a). The exemptions are set forth at 65 Pa. Stat. Ann. § 67.708(b).

The Law also has separate provisions providing for access to certain information and records of “state-related institutions” (65 Pa. Stat. Ann. § 67.1501-1503) and to certain “state contract information” (65 Pa. Stat. Ann. § 67.1701-1702).

The scope of records covered by the Law does not “supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306. Elsewhere the Law makes the same point clear: “If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.” 65 Pa. Stat. Ann. § 67.3101.1. In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that. This is consistent with court decisions under the old act holding that “the generic definition of a ‘public record’ contained within the Right-to-Know Act [incorporates] by implication those specific definitions of public record contained in statutes allowing for public access to particular documents of particular agencies.” Marvel v. Dalrymple, 393 A.2d 494, 498 (Pa. Commw. Ct. 1978) (interpreting old act); see also Pa. State Police v. Office Open Records, 5 A.3d 473, 483 (Pa. Commw. Ct. 2010) (citations omitted); Jones v. Office of Open Records, 993 A.2d 339 (Pa. Commw. Ct. 2010) (holding 37 Pa. Code § 61.2 excludes probation and parole investigation reports from the definition of “public record”).

Under the old act, Pennsylvania courts held that even documents that are not available under the Right-to-Know act may still be subject to discovery under the Rules of Civil Procedure in a civil suit against a government agency. Commonwealth v. Kauffman, 605 A.2d 1243, 1245-46 (Pa. Super. 1992) (interpreting the old act). Compare Kauffman, with Pastore v. Commonwealth Ins. Dep’t., 558 A.2d 909, 913-14 (Pa. Commw. Ct. 1989) (where the court refused to allow documents to be discovered when they fell within the investigation exception to the Right-to-Know Law) (interpreting the old act). This principle should remain the law under the new law.

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1. What kinds of records are covered?

The Law provides access to the following kinds of records:

Public Records: Commonwealth and local agencies must provide access to “public records.” A public record is defined as follows: “A record, including a financial record, of a Commonwealth or local agency that: (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law or regulation or judicial order or decree; or (3) is not protected by a privilege.”

The word “record” has an extremely broad definition and essentially covers any agency information or document:

“Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.”

65 Pa. Stat. Ann. § 67.102.

Financial Records: Commonwealth, independent, local, legislative, and judicial agencies must provide access to financial records. 65 Pa. Stat. Ann. §§ 67.301-302, 304.

Financial records are any of the following:

“(1) Any account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property. (2) The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee. (3) A financial audit report. The term does not include work papers underlying an audit.”

65 Pa. Stat. Ann. § 67.102.

Subsections (2) and (3) of this definition are new. Subsection (2) makes clear that records showing payments of money to an agency officer or employee are public records. Subsection (3) requires access to financial audit reports though not any of the underlying work papers.

Subsection (1), however, parallels part of the old act’s definition of records subject to the law. As a result, prior case law interpreting that language will likely remain good law. The following addresses Pennsylvania decisions interpreting the “account, voucher or contract” category of records:

The “account, voucher and contract” category deals generally with fiscal aspects of governance, providing for public review of accounts, vouchers or contracts, dealing with receipts and disbursements of funds by an agency. City of Harrisburg v. Prince, 186 A.3d 544 (Pa. Commw. Ct. 2018); The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005), aff’d 935 A.2d 530 (Pa. 2007). An account is “a record of business dealings between parties,” Carbondale Twp. v. Murray, 440 A.2d 1273, 1274 (Pa. Commw. Ct. 1982); see also Sipe v. Snyder, 640 A.2d 1374, 1382 (Pa. Commw. Ct. 1994) (an “‘account’ include[s] any ‘record of business dealings between the parties’ as well as the documentary record of a business transaction.’”). In a narrower, more technical definition, one court ruled that an account is a “record of debit and credit entries to cover transactions during a fiscal period of time” rather than a statement of facts or events. Butera v. Commonwealth Office of the Budget, 370 A.2d 1248, 1249 (Pa. Commw. Ct. 1977) (departmental budget reports provided to Pennsylvania Budget Secretary not public record), overruled by LaValle v. Office of Gen. Counsel, 769 A.2d 449 (Pa. Commw. Ct. 2000). A voucher is a documentary record of a business transaction. Carbondale, 440 A.2d at 1274 n.2. Thus, a municipality’s canceled checks have been held to be both “accounts” and “vouchers” under the law. Id. See also Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004) (deeds and mortgages filed with County Recorder of Deeds are not accounts, vouchers or contracts; therefore, they are not public records under the law).

Contracts are also public records under the Law’s definition. See, e.g., Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009) (holding that provider agreements between a Medicaid managed care program and the Department of Public Welfare constitute “public records” subject to disclosure). While “a proposal itself is not a public record under the Law because it does not lead to the expenditure of public funds,” once a proposal is “formalized into a contract, [it] as well as competing proposals [are] subject to disclosure.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 463-64 (Pa. Commw. Ct. 1997). The fact that the contract may not necessarily involve the receipt or disbursement of public funds is “irrelevant:” “[S]o long as the contract dealt with the possible appropriation of public funds, the contract was a public record subject to inspection.” Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) citing The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993). However, contracts that are required to be filed with an agency, such as deeds and mortgages, to which the agency is not a party (but merely a recorder memorializing a third-party transaction), are not public records. Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004).

Under the old act, an agreement settling litigation between an agency and a third party is a public record notwithstanding a confidentiality agreement contained therein. Tribune-Review Publ’g Co. v. Westmoreland Cty. Housing Auth., 833 A.2d 112 (Pa. 2003) (a confidentiality clause in a settlement agreement involving an agency is void as against public policy); Cogen, Sklar and Levick v. Pennsylvania, 814 A.2d 825, 31 Media L. Rep. 1478 (Pa. Commw. Ct. 2003); The Morning Call, Inc. v. Housing Auth., 769 A. 2d 1246 (Pa. Commw. Ct. 2001); The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993); Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. 2005) (a settlement agreement which utilized public monies from cigarette taxes from the MCARE fund cannot be placed under seal, in part, because it is a public record).

The Commonwealth Court’s holding requiring the disclosure of written arbitration suggests the continuing validity of the above case law relating to settlement agreements.  See Lutz v. City of Phila., 6 A.3d 669 (Pa. Commw. Ct. 2010).  The police officer arbitrations at issue in Lutz essentially settled grievances made by members of the police union and the City of Philadelphia. The Commonwealth Court rejected the argument that resolutions of such private disputes are not a “public record” and thus denied a request to enjoin the City of Philadelphia from disclosing arbitration opinions.  Id. at 676.

“The Act does not permit an agency; to avoid its obligation to disclose documents by contracting indirectly through a third party.” Associated Builders & Contractors, Inc. v. Pa. Dep’t of Gen. Servs., 747 A.2d 962, 966 (Pa. Commw. Ct. 2000) (requiring DGS to turn over contract between DGS’s construction manager and insurance broker).

Pennsylvania courts have ruled that this category “reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts.” N. Hills News Record v. Town of McCandless, 722 A.2d 1037, 1039 (Pa. 1999). For example, in Sipe v. Snyder, 640 A.2d 1374 (Pa. Commw. Ct. 1994), appeal denied, 668 A.2d 1138 (Pa. 1995), the Commonwealth Court held that the Department of Public Welfare’s nursing home “Settlement and Appeal Activity Reports” were “accounts” under the Act because they deal with the receipt and disbursement of agency funds. Sipe, 640 A.2d at 1381-82. In Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union 12, 713 A.2d 627 (Pa. 1998), the court held that a private roofing contractor’s payroll records, which had been submitted to the government in connection with the performance of a public project, were public records under the Act because “they are records evidencing a disbursement by the school district.”

Nonetheless, “to constitute a public record, the material at issue must bear a sufficient connection to fiscally related accounts, vouchers or contracts.” North Hills, 722 A.2d at 1039; LaValle v. Office of Gen. Counsel, 769 A.2d 449, 453 (Pa. 2001). Since the North Hills case, the Commonwealth Court has ruled that insurance policies purchased by DGS were public records because they were paid for by public funds. Associated Builders & Contractors, 747 A.2d 962. The current salaries and salary histories of employees of state-related institutions (which is not obtainable from the state institution) is obtainable from those employees who participate in the public employees’ retirement fund, because the employees’ salary information is closely related to “accounts” and “contracts” and is therefore subject to the Law. The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005).

Under the new Law, the legislature included substantially similar “accounts, vouchers or contracts” language in its definition of “financial records” under 65 Pa. Stat. Ann. § 67.102.  See, e.g., Dep’t of Conservation and Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. Ct. 2010) (citing North Hills, 722 A.2d at 1038-39; Sapp Roofing, 713 A.2d at 628).  Thus, prior case law construing the “accounts, vouchers or contracts” language in the old Act has been cited as binding precedent under the new Law. Id. So, just as a roofing contractor’s payroll records were public records in Sapp, private contractors’ payroll records are accessible “financial records” under the new Law. Id. at 940-41.

Chemical disbursement sheets, which record the use of chemicals at a state prison, are not public records because they are unrelated to the fiscal governance of the Department of Corrections and are therefore not “accounts.” Heffran v. Dep’t. of Corr., 878 A.2d 985, 991 (Pa. Commw. Ct. 2005).

Not addressed in the case law is whether a contract that deals with an agency’s “acquisition, use or disposal of services or of supplies, materials, equipment or other property” is a public record even where the agency pays or receives no funds. A strict reading of the Law suggests that such contracts are public records, but agencies have argued to the contrary.

Legislative Records: This includes:

“Any of the following relating to a legislative agency or a standing committee, subcommittee or conference committee of a legislative agency: (1) A financial record. (2) A bill or resolution that has been introduced and amendments offered thereto in committee or in legislative session, including resolutions to adopt or amend the rules of a chamber. (3) Fiscal notes. (4) A cosponsorship memorandum. (5) The journal of a chamber. (6) The minutes of, record of attendance of members at a public hearing or a public committee meeting and all recorded votes taken in a public committee meeting. (7) The transcript of a public hearing when available. (8) Executive nomination calendars. (9) The rules of a chamber. (10) A record of all recorded votes taken in a legislative session. (11) Any administrative staff manuals or written policies. (12) An audit report prepared pursuant to the act of June 30, 1970 (P.L.442, No.151) entitled, ‘An act implementing the provisions of Article VIII, section 10 of the Constitution of Pennsylvania, by designating the Commonwealth officers who shall be charged with the function of auditing the financial transactions after the occurrence thereof of the Legislative and Judicial branches of the government of the Commonwealth, establishing a Legislative Audit Advisory Commission, and imposing certain powers and duties on such commission.’ (13) Final or annual reports required by law to be submitted to the General Assembly. (14) Legislative Budget and Finance Committee reports. (15) Daily legislative session calendars and marked calendars. (16) A record communicating to an agency the official appointment of a legislative appointee. (17) A record communicating to the appointing authority the resignation of a legislative appointee. (18) Proposed regulations, final-form regulations and final-omitted regulations submitted to a legislative agency. (19) The results of public opinion surveys, polls, focus groups, marketing research or similar efforts designed to measure public opinion funded by a legislative agency.”

65 Pa. Stat. Ann. § 67.102.

Reports filed by State-related Institutions: The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library, a report containing certain information. 65 Pa. Stat. Ann. § 67.1502. The report “shall include” the following information: (1) “all information required by a Form 990 or equivalent form; regardless of whether the State-related institution is required to file the form;” (2) “the salaries of all officers and directors of the State-related institution;” (3) “the highest 25 salaries paid to employees of the institution that are not included under paragraph 2.” 65 Pa. Stat. Ann. § 67.1503(1)-(3). The report “shall not include information relating to individual donors.” Section 1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Stat. Ann. § 67.1504.

State Contract Information: The Law requires that when any commonwealth, legislative or judicial agency (this excludes local agencies) enter into any “contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more, a copy of the contract shall be filed with the Treasury Department within ten days after the contract is fully executed on behalf of the Commonwealth agency, legislative agency or judicial agency or otherwise becomes an obligation of the Commonwealth agency, legislative agency or judicial agency.” 65 Pa. Stat. Ann. § 67. 65 Pa. Stat. Ann. § 67.1701(a).

This obligation does not apply to “contracts for services protected by a privilege,” referring, inter alia, to the attorney-client privilege, attorney work product doctrine, the doctor-patient privilege and the speech and debate privilege. Section 1701(a); 102 (definition of “privilege”).  It also does not apply to “a purchase order evidencing fulfillment of an existing contract but shall apply to a purchase order evidencing new [contractual] obligations.” Section 1701(a). And it does not apply to contracts “submitted to the Treasury Department, the Office of Auditor General or other agency for purposes of audits and warrants for disbursements” under the Fiscal Code.

When an open records officer discloses records protected by the attorney-client privilege without prior consent from the municipality’s solicitor, the agency has not waived its attorney-client privilege.  See Bd. of Supervisors v. McGogney, 13 A.3d 569, 573 (Pa. Commw. Ct. 2011). The majority in McGogney analyzed inadvertent disclosures through the five factor test articulated in Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007). The court found that open records officers have “ministerial and administrative” duties.  McGogney, 13 A.3d at 573. Therefore, they have no power either as client or attorney to waive the attorney-client privilege. Id.

However, the dissent cited 65 Pa. Stat. Ann. § 67.902’s notice provisions for delay in responding to a request. Id. at 574–75. 65 Pa. Stat. Ann. § 67.902 permits an agency to extend the time for response under 65 Pa. Stat. Ann. § 67.901 if a “legal review is necessary to determine whether the record is a record subject to access under this act.” 65 Pa. Stat. Ann. § 67.902(a)(4). Thus, the dissent reasoned that the open records officer had the power to and did waive the attorney-client privilege by disclosing documents without waiting for a legal review.  See McGogney, 13 A.3d at 573.

The contract must be “in a form and structure mutually agreed upon” by the agency and State Treasurer. The Treasury Department may require the agency to “provide a summary with each contract” that “shall include” the date of execution, amount of the contract, beginning and end date of the contract, name of agency and all parties and subject matter. Every contract filed shall remain on file with the Treasury Department “for a period of not less than four years after the end date of the contract.” The agency is “responsible for verifying the accuracy and completeness of the information” submitted to the State Treasurer. The contract “shall be redacted” in accordance with the Law by the agency filing it. 65 Pa. Stat. Ann. §§ 67.1701(a)(1), (2)(a)–(c).

The Treasury Department shall make each filed contract available for public inspection in one of two ways: (1) “by posting a copy of the contract on the Treasury Department’s publicly accessible Internet website,” or (2) “by posting a contract summary on the department’s publicly accessible Internet website.” 65 Pa. Stat. Ann. § 67.1702(a). The posted information must allow the public to “search contracts or contract summaries by the categories of information that must be contained in summaries.” 65 Pa. Stat. Ann. § 67.1702(b).

A requester may obtain a “paper copy” of the contract from the agency that executed the contract. 65 Pa. Stat. Ann. § 67.1702(d).

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2. What physical form of records are covered

The Law’s definition of “record” includes records in any form, including records containing “information stored or maintained electronically and a data-processed or image-processed document.” 65 Pa. Stat. Ann. § 67.102. Moreover, it states: “A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists.” 65 Pa. Stat. Ann. § 67.701(a). But the Law cautions that “[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.” 65 Pa. Stat. Ann. § 67.701(b).

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3. Are certain records available for inspection but not copying?

“Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication.” 65 Pa. Con. Stat § 67.701.  This is consistent with prior case law. See City of Phila. v. Ruczynski, 24 Pa. D. & C.2d 478 (Phila. Cty. C.P. 1961) (interpreting old act).

Round-the-clock access is not required: “Public records, legislative records or financial records shall be available for access during the regular business hours of an agency.” 65 Pa. Stat. Ann. § 67.701(a).

Although the Law is silent, it is unlikely that an agency has any obligation to send a copy to a requester. Applying the old act, Pennsylvania courts held that an agency is not required to do so. See Owens v. Horn, 684 A.2d 208, 210 (Pa. Commw. Ct. 1996) (Department of Corrections not required to make copy of record for inmate or to transport record to inmate); see also Carter v. Pa. Dep’t. of Corr., 962 A.2d 21, 23 (Pa. Cmmw. 2008) (finding the Department had “done all that it is required to do” under the law in making records available for inspection  and copying).  Likewise, under the old act, the requester must make his or her own copies and could not compel the agency to do so. See Twp. of Shenango v. W. Middlesex Area Sch. Dist., 33 Pa. D. & C.3d 515 (Mercer Cty. C.P. 1984).

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4. Telephone call logs

Mobile phone number logs – where the phone is paid with tax dollars – are accessible. See PG Pub. Co. v. Cty. of Washington, 638 A.2d 422, 432 (Pa. Cmmw. 1994), see also Grine v. Cty. of Centre, 138 A.3d 88, 96 (Pa. Cmmw. 2016)

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5. Electronic records (e.g., databases, metadata)

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a. Can the requester choose a format for receiving records?

Yes. The Law’s definition of “record” includes records in any form, including records containing “information stored or maintained electronically and a data-processed or image-processed document.” 65 Pa. Stat. Ann. § 67.102. Moreover, it states: “A public record being provided to a requester shall be provided in the medium requested if the record exists in that medium; otherwise, it shall be provided in the medium in which it exists.” 65 Pa. Stat. Ann. § 67.701(a).

The agency has the option of making its records available through “any publicly accessible electronic means” and may respond to a requester by stating that “the record is available through publicly accessible electronic means or that the agency will provide access to inspect the record electronically.” If the requester is “unwilling or unable to access the record electronically,” the requester may submit, within 30 days of the agency’s notification, a written request “to the agency to have the record converted to paper,” and the agency “shall provide access to the record in printed form within five days or the receipt of the written request for conversion to paper.” 65 Pa. Stat. Ann. § 67.704.

The Law cautions that “[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.” 65 Pa. Stat. Ann. § 67.701(b).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

No. In responding to a request under the Law, an agency is not required to create a document that does not exist. See 65 Pa. Stat. Ann. § 67.705 (“[A]n agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.”).

Nonetheless, some agencies have allowed such requests.

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c. Does the existence of information in electronic format affect its openness?

No.

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d. Online dissemination

Many agencies make some of their records publicly available online in their own discretion and by statute.  However, the Law does not require online dissemination of public records.

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6. Email

Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.”

“Upon receipt of a written request for access to a record, an 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.” 65 Pa. Stat. Ann. § 67.901; In re Silberstein, 11 A.3d 629, 633 (Pa. Commw. Ct. 2011) (the open records officer is required to direct relevant requests to appropriate public officials and determine whether that official is in possession, custody or control of a “public record”).

So long as an e-mail satisfies the Law’s requirements, the Law requires access.  See, e.g., In re Silberstein, 11 A.3d 629. Silberstein suggests that a public official who “possesses, controls or has custody” of a public record, no matter where it exists, must disclose that information to a requester.  Id.  However, emails located on an agency-owned computer are not presumptively records of the agency simply by virtue of their location.” Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmmw. 2012).  Rather, it is those emails that document the agency's transactions or activities that are “records.” Id.  Therefore, personal emails sent or received using a school district e-mail address or by virtue of their location on a district-owned computer – even though the district had a policy limiting use of computers to official business and stating users had no expectation of privacy – may be exempt from disclosure. See Baxter, 35 A.3d 1259; see also In re Silberstein, 11 A.3d 629 (a public official’s electronic communications do not fall within the definition of a “record” under Pennsylvania’s Right to Know Law when the official has no authority to act on behalf of a governmental agency without its authorization).

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7. Text messages and other electronic messages

An open records officer must make a good faith determination as to the existence of public records on private hardware.  See, e.g., In re Silberstein, 11 A.3d 629, 633 (Pa. Cmmw. 2011).

Text messages and instant messages are presumptively accessible unless the governmental agency proves some exemption from disclosure applies. Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.” 65 Pa. Stat. Ann. § 67.102.

Given that emails have been held to be accessible to the public no matter where they exist, instant messages and text messages must also likely be made publicly available upon proper request.  See In re Silberstein, 11 A.3d at 633; see also Hassler v. Tulpehocken Area Sch. Dist., OOR Dkt. No. AP 2019-0455 (July 18, 2019) (requiring the disclosure of text messages exchanged during a school board meeting between the superintendent and a board member).

Private matter messages on private hardware likely need not be disclosed.  See In re Silberstein; see also Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259 (Pa. Cmmw. 2012)

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8. Social media posts

Social media postings and messages are presumptively accessible.

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9. Computer software

Under 65 Pa. Stat. Ann. § 67.708(b)(4), software is presumptively accessible unless it “would be reasonably likely to jeopardize [the agency’s] computer security.” Software and metadata are public so long as they “would [not] be reasonably likely to jeopardize [the agency’s] computer security.”

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

The Law spells out what fees agencies may and may not charge. 65 Pa. Stat. Ann. § 67.1307. Other statutory law may supersede the fees required by the Right-to-Know Law.  See, e.g., 42 P.S. § 21051 (permits Recorder of Deeds to charge a copy fee of 50 cents per uncertified page and $1.50 per certified page); 75 Pa.C.S. §3751 (b)(2) (permits police departments to charge up to $15 per report for providing a copy of a vehicle accident report).

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

In general, the Law permits fees to cover the costs of duplication and postage costs. No other fees may be charged “unless the agency necessarily incurs costs for complying with the request.” In such case, “such fees must be reasonable.” 65 Pa. Stat. Ann. § 67.1307(g). This requirement prevents an agency from charging for overhead costs (staff payroll, utilities, etc.), which are not “necessarily” incurred as a result of a request. 65 Pa. Stat. Ann. § 67.1307(g).

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2. Particular fee specifications or provisions

A fee to review a document is not permissible. No fee may be charged for “an agency’s review of a record to determine whether the record is a public record, legislative record or financial record subject to access in accordance with this act.” 65 Pa. Stat. Ann. § 67.1307(g).

The Law requires that the fees “shall be established” by the Office of Open Records for Commonwealth and local agencies, by each judicial agency and by each legislative agency. 65 Pa. Stat. Ann. § 67.1307(b)(1).

Fees for duplication – whether 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. Stat. Ann. § 67.1307(b)(2). “Fees for local agencies may reflect regional price differences.” 65 Pa. Stat. Ann. § 67.1307(b)(3).

A retrieval and copying fee of 25 cents per page was held reasonable. Weiss v. Williamsport Area Sch. Dist., 872 A.2d 269 (Pa. Commw. Ct. 2005) (interpreting the old act). In so holding, the court permitted the school district to rely on comparable charges levied by other local colleges and banks and rejected the requester’s evidence of lower fees charged by such local businesses as Staples. Id.

If the public record is only maintained electronically or in non-paper form, the agency may charge only the lesser of the fee for duplication on paper or the fee for duplication in the original medium, unless the request is specifically for duplication in the more expensive medium. 65 Pa. Stat. Ann. § 67.1307(d); see, e.g., State Emps.’ Ret. Sys. v. Office of Open Records, 10 A.3d 358 (Pa. Commw. Ct. 2010) (limiting fees to the cost of duplication at 25 cents per page rather than the more expensive labor costs of compiling data electronically because the state agency had no duty to produce non-paper copies).

Postage: “Fees for postage may not exceed the actual cost of mailing.” 65 Pa. Stat. Ann. § 67.1307(a).

Agencies may offer “enhanced electronic access” to public records using a different rate structure – e.g., flat rate, subscription fee, per transaction fee, etc. – so long as the enhanced electronic access is “in addition to making the records accessible for inspection and duplication” as required by the Law. “The user fees for enhanced electronic access must be reasonable, must be approved by the Office of Open Records, and may not be established with the intent or effect of excluding persons from access to records or duplicates thereof or of creating profit for the agency.” 65 Pa. Stat. Ann. § 67.1307(e).

Big Data: The Law has special rules for “complex and extensive data sets, including geographic information systems or integrated property assessment lists.” In such situations, “[f]ees for copying may be based on the reasonable market value of the same or closely related data sets.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(i). Such fees, however, “shall not apply” to requests by (1) newspapers, magazines, broadcast stations, weekly publications and press associations “for the purpose of obtaining information for publication or broadcast” or (2) “nonprofit organizations for the conduct of educational research.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(ii).

Certified copies: The Law allows agencies to “impose reasonable fees for the official certification of copies if the certification is sought by the requester and for the purpose of legally verifying the public record.” 65 Pa. Stat. Ann. § 67.1307(c). Once an agency grants a request for access, the Act obligates an agency to provide a certified copy if the requester pays the applicable fees.  65 Pa. Stat. Ann. § 67.904.

Transcripts: The Law permits different fees for transcripts depending on whether the adjudication is final. Prior to an adjudication becoming “final, binding and nonappealable,” transcripts of an administrative proceeding are available from the agency stenographer or court reporter “in accordance with agency procedure or an applicable contract.” 65 Pa. Stat. Ann. § 67.707(c)(1). But where the adjudication is final, the “duplication rate” may not exceed that established by 65 Pa. Stat. Ann. § 67.1307(b), i.e., they must be “reasonable and based on prevailing fees for comparable duplication services provided by local business entities.” 65 Pa. Stat. Ann. § 67.707(c)(2). In other words, until an adjudication is final, fees may be a much higher charge consistent with per page rates set by court reporters and stenographers.

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3. Provisions for fee waivers

An agency may – but is not legally required to – waive fees for duplication where, for example, the “requester duplicates the record” or “the agency deems it is in the public interest to do so.” 65 Pa. Stat. Ann. § 67.1307(f).

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4. Requirements or prohibitions regarding advance payment

Before granting a request for access, 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.” 65 Pa. Stat. Ann. § 67.1307(h).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Under the old act, some agencies tried to charge fees that sought to make profit on Right to Know Act requests, even though prior case law and the 2002 amendments have generally prohibited such efforts.

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6. Fees for electronic records

Pursuant to 65 Pa. Stat. Ann. § 67.1307(e), agencies may impose 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 for “enhanced electronic access.”  The user fees for enhanced electronic access must be reasonable, pre-approved by the Office of Open Records, and absent an intent or effect of excluding persons or creating profit for the agency.  65 Pa. Stat. Ann. § 67.1307(e).

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E. Who enforces the Act?

The Law mandates the creation of an Office of Open Records in the Department of Community and Economic Development. Section 1310(a). The Office is led by an executive director who is appointed by the governor for a term of six years (with a maximum of two terms) and who may appoint attorneys to act as appeals officers as well as other staff as appropriate. 65 Pa. Stat. Ann. § 67.1310(b).

The Office of Open Records has the following responsibilities:

• Provide information relating to the implementation and enforcement of the act.
• Issue advisory opinions to agencies and requesters.
• Provide annual training to agencies, public officials and public employees.
• Provide annual, regional training courses to local agencies, public officials and public employees.
• Assign appeals officers to review appeals of decisions by commonwealth and local agencies, and issue orders and opinions. The Office must retain attorneys to serve as appeals officers and review appeals and, if necessary, hold hearings on a regional basis.
• Establish an informal mediation program to resolve disputes under the act.
• Establish an Internet website with information relating to the act, including information on fees, advisory opinions and the name and address of all open records officers in the Commonwealth.
• Conduct a biannual review of fees charged under the act.
• Annually report on “its activities and findings” to the Governor and General Assembly. This report shall be “posted and maintained” on the Office’s website.

65 Pa. Stat. Ann. § 67.1310(a)(1)-(9).

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1. Attorney General's role

None.

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2. Availability of an ombudsman

None.

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3. Commission or agency enforcement

None.

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F. Are there sanctions for noncompliance?

See Section III(D)(8)-(10) which discusses judicial remedies and fines.

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G. Record-holder obligations

“A written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.” 65 Pa. Con. Stat. § 67.703.  The requester must identify a “discrete” group of documents either by type or recipient. See Office of the D.A. v. Bagwell, 155 A.3d 1119, 1143 (Pa. Cmmw. 2017), reconsideration denied (Apr. 12, 2017), appeal denied sub nom. Office of D.A. v. Bagwell, 174 A.3d 560 (Pa. 2017) (finding that a request for “all e-mails, memos and letters” exchanged between a district attorney and city office during a 15-month period was sufficiently specific).

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1. Search obligations

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2. Proactive disclosure requirements

“Any Commonwealth agency, legislative agency or judicial agency [that] enter[s] into any contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more” shall file said contract with the Treasury Department. 65 Pa. Con. Stat. § 67.1701.

The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library a report containing certain information. 65 Pa. Con. Stat § 1502. The report “shall include” the following information: (1) “all information required by Form 990 or an equivalent form . . . regardless of whether the State-related institution is required to file the form . . .;” (2) “[t]he salaries of all officers and directors of the State-related institution;” (3) “[t]he highest 25 salaries paid to employees of the institution that are not included under paragraph (2).” 65 Pa. Con. Stat §1503(1)-(3). The report “shall not include information relating to individual donors.” 65 Pa. Con. Stat §1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Con. Stat § 1504.

Though, “certain records of a coroner, such as autopsy reports, are exempt under Section 708(b)(20) of the RTKL, these records are available pursuant to the Coroner's Act, 16 P.S. §§ 1231-1253.”  See In re Miller v. Lancaster Cty., 2018 WL 1542110 (Pa. Off. Open Rec. 2018) (citing 65 P.S. § 67.3101.1: “If the provisions of this act regarding access to records conflict with any other . . . state law, the provisions of this act shall not apply.”).  Section 1251 of the Coroner's Act states that “[e]very coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” 16 P.S. § 1251. The Pennsylvania Supreme Court has found that records pertaining “to a duty of a coroner in his or her official capacity,” including autopsy reports, are ““official records and papers” of a coroner that are required to be deposited with the county prothonotary. See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009) (“It is clear . . . that conducting autopsies is one of the official duties of a coroner. It follows logically that a coroner's resulting autopsy reports constitute ‘official records and papers' within the meaning of Section 1251.”).

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3. Records retention requirements

The OOR does not have jurisdiction over record retention.  The Pennsylvania Historical & Museum Commission (“PHMC”) provides guidelines for record retention. Retention is based on media type and agency.  The PHMC’s retention schedule can be found here: https://www.phmc.pa.gov/Archives/Records-Management/Documents/20190520_GeneralRRDS.pdf

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

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1. Character of exemptions

Section 708 of the Law, which is not patterned on the federal Freedom of Information Act, contains numerous exceptions. The individual exceptions will be discussed in the next subsection. For purposes of this subsection, concerning the characteristics of the exceptions in the Law:

• All of the exceptions apply to public and judicial records.
• Only a few of the exceptions apply to financial records. 65 Pa. Stat. Ann. § 67.708(c), moreover, expressly provides that “an agency may redact that portion of a financial record protected under [Section 708](b)(1)-(6), (16–17).”
• 65 Pa. Stat. Ann. § 67.708(d) provides that the exceptions do not apply to “aggregated data maintained or received by an agency, except for data protected under” 65 Pa. Stat. Ann. § 67.708(b)(1)-(5).
• 65 Pa. Stat. Ann. § 67.708(c) prohibits agencies from disclosing “the identity of an individual performing an undercover or covert law enforcement activity.”

In terms of burdens of proof, the agency receiving a records request bears the burden of proving by a preponderance of the evidence that a requested record is exempt from disclosure. 65 Pa. Stat. Ann. § 67.708(a)(1)-(3); see also Mission Pa., LLC v. McKelvey, --- A.3d ----, 2019 WL 2345090, at *6 (Pa. Commw. Ct. 2019) (explaining that “decisional law allows third parties to raise and defend exemptions to protect their information,” but agencies are not relieved from considering the validity or consistent application of the asserted exceptions) (citations omitted). Furthermore, the agency must separately and independently assess each exemption believed to apply to a requested record. 65 Pa. Stat. Ann. § 67.708(e). Courts will narrowly construe the exceptions when they are asserted to preclude disclosure of a requested record. Office of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Commw. Ct. 2015).

As it relates to the Section 708 exceptions, it is also important to recognize that agencies are not required to withhold records that fall within one of the listed exceptions.  65 Pa. Stat. Ann. § 67.506(c) provides agencies with “discretion” to make an “otherwise exempt” record accessible for inspection and copying if: (1) “disclosure is not prohibited” by a “[f]ederal or [s]tate law or regulation,” or a “[j]udicial order or decree;” (2) the “record is not protected by a privilege;” and (3) “[t]he agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.”  See also Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711 (Pa. Commw. Ct. 1999) (explaining in the context of the old Act that “there are three types of records kept by government agencies: 1) records that must be made public because they are subject to the Act; 2) records that may be made public because they fall within the discretion of the public official to make them public because they either fall within an exception under the Act or are otherwise not prohibited from being released; and 3) those records that cannot be released because there is an express statutory prohibition against their release . . .”); Bangor Area Educ. Ass’n v. Angle, 720 A.2d 198, 202 (Pa. Commw. Ct. 1998), aff’d, 750 A.2d 282 (Pa. 1998) (concluding that the old Act “prohibited” the agency from providing access to teacher personnel files protected by the constitutional right of privacy).  Thus, it is possible that a requesting party may still be in a position to obtain an otherwise exempted record.  But the ultimate disclosure decision for exempted records is within an agency’s discretion.

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2. Discussion of each exemption

65 Pa. Stat. Ann. § 67.708, which is divided into 30 subparts, consists of general and specific records exceptions. The exceptions follow below.

(1) “A record the disclosure of which: (i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or (ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”

The old Act included nearly identical records exceptions.

First, the old act provided an exemption for records that “if disclosed would result in loss by the Commonwealth or any subdivision or authority of federal [but not state] funds, except records of criminal convictions.” (emphasis added).  The old exemption was rarely invoked.  Moreover, it was understood to apply only when federal law mandated the loss of federal funds for records disclosures.  See Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) (explaining that “the possibility that an agency would lose [f]ederal funds is insufficient to trigger an exemption from inspection under the Act”) (emphasis added) (citing Ryan v. Pa. Higher Educ. Assistance Agency, 448 A.2d 669 (Pa. Commw. Ct. 1982) (determining that contracts not exempt from disclosure when no federal law or regulation mandated that federal funds be cut off if public access to the contracts was allowed).  In a more recent decision, the Commonwealth Court recognized that the same standard applies when an agency invokes this exemption.  Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1016 (Pa. Commw. Ct. 2018).

Second, the old Act also contained an exemption for records “which if disclosed would operate to prejudice or impair a person’s reputation or personal security.”  Originally, in decisions applying that exception, Pennsylvania courts interpreted “personal security” solely as “freedom from harm, danger, fear or anxiety.” See Times Publ’g Co., Inc. v. Michel, 633 A.2d 1233 (Pa. Commw. Ct. 1993). The cases required disclosure of information to be “‘intrinsically harmful’ to fall within the personal security exception to the Act.” Id. (quoting Moak v. Phila. Newspapers, Inc., 336 A.2d 920 (Pa. Commw. Ct. 1975)).

In Times Publishing, the Commonwealth Court expanded upon the exception, applying it to “personal security” information (i.e., addresses, telephone numbers, and social security numbers of firearm applicants). The court “decided that deference to personal privacy rights must be accommodated pursuant to the ‘personal security’ exception in the [former Act].”  Pa. State Edu. Ass’n v. Pa. Dep’t of Cmty. and Econ. Dev., 148 A.3d 142, 153 (Pa. 2016) (PSEA) (citing Times Publ’g, 633 A.2d at 1239).  The court also “found that when evaluating claims involving constitutional privacy interests related to . . . requests for personal information [under the old Act], courts must ‘apply a balancing test, weighing privacy interests and the extent to which they may be invaded, against the public benefit which would result from disclosure.’”  Id. (quoting Times Publ’g, 633 A.2d at 1239).

Following Times Publishing, the Supreme Court of Pennsylvania adopted the Commonwealth Court’s analysis in a trilogy of cases.  See Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Emps.’ Ret. Bd., 935 A.2d 530 (Pa. 2007); Tribune–Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008).  According to the Supreme Court of Pennsylvania, “the determination of whether personal information [could] be disclosed [under the old law] require[d] a balancing to assess whether the privacy interests outweigh[ed] the public’s interest in the dissemination of the information.”  PSEA, 148 A.3d at 153-54.

In the current Law, the Legislature clearly retained the personal-security exemption.  And in 2016, the Pennsylvania Supreme Court reversed a Commonwealth Court decision that ruled there is no constitutional right to privacy in one’s home address, in connection with requests under the current Law.  PSEA, 148 A.3d at 158.  According to the Supreme Court, the “right to informational privacy is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure.”  Id.  Accordingly, the Supreme Court ruled that the prior analysis under the old Act applies to personal-security information that agencies attempt to shield from disclosure under the personal-security exemption in the current Law.  Applying the balancing test, the court concluded that the public school employees’ strong privacy interest in their home addresses outweighed any public interest in disclosure of that information.  Id.

In terms of the “physical harm” aspect of this exemption, agencies cannot satisfy the “reasonably likely” burden by relying on speculation or conjecture.  See, e.g., Cal. Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018) (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, 65 Pa. Stat. Ann. § 67.708(b)(2), the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).

An agency must present sufficient evidence supporting the proposition that disclosure would be more likely than not to cause physical harm to an individual. Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2011); but see id. at 443 (J. McCullough, concurring) (stating that the test under Section 708 is clearly a reasonable likelihood of physical harm).

(2) “A record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity, or a record that is designated classified by an appropriate Federal or State military authority.”

As with all of the “reasonably likely” thresholds contained within certain exceptions, agencies asserting this exception cannot satisfy their burden by relying on speculation or conjecture. See, e.g., Rothey, 185 A.3d at 468 (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).

65 Pa. Stat. Ann. § 67.102 also supplies definitions pertinent to this exemption:

“Homeland security” is defined by the Law to mean: “Governmental actions designed to prevent, detect, respond to and recover from acts of terrorism, major disasters and other emergencies, whether natural or manmade.” The term includes activities relating to the following: (1) emergency preparedness and response, including preparedness and response activities by volunteer medical, police, emergency management, hazardous materials and fire personnel; (2) intelligence activities; (3) critical infrastructure protection; (4) border security; (5) ground, aviation and maritime transportation security; (6) biodefense; (7) detection of nuclear and radiological materials; and (8) research on next-generation securities technologies.  65 Pa. Stat. Ann. § 67.102.

“Terrorist act” is defined as a “violent or life-threatening act that violates the criminal laws of the United States or any state and appears to be intended to: (1) intimidate or coerce a civilian population; (2) influence the policy of a government; or (3) affect the conduct of a government by mass destruction, assassination or kidnapping.”  Id.

In addition, “Supervision Strategies” employed by Board of Probation and Parole (the “Board”) employees to monitor sex offenders also fall within this exemption. Woods v. Office of Open Records, 998 A.2d 665 (Pa. Commw. Ct. 2010). The Commonwealth Court reasoned that releasing “Supervision Strategies” might aid sex offenders wishing to avoid Board supervision and monitoring, and thus facilitate recidivism. Id.  “The critical factor in th[e] [c]ourt’s decision was the detail which the affiant provided regarding the substance of the records and the ways in which a sex offender might use the information to evade or avoid detection.”  Pa. State Police v. ACLU, 2018 WL 2272597, at *3 (Pa. Commw. May 18, 2018) (internal citations omitted).

(3) “A record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system, which may include: (i) documents or data relating to computer hardware, source files, software and system networks that could jeopardize computer security by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act; (ii) lists of infrastructure, resources and significant special events, including those defined by the Federal Government in the National Infrastructure Protections, which are deemed critical due to their nature and which result from risk analysis; threat assessments; consequence assessments; antiterrorism protective measures and plans; counterterrorism measures and plans; and security and response needs assessments; and (iii) building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems, including public utility systems, structural elements, technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems.”

Relevant to this exemption, the Pennsylvania Emergency Management Agency (PEMA) must disclose records of goods and services purchased with Department of Homeland Security grant funds unless disclosure is “reasonably likely” to endanger public infrastructure. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Commw. Ct. 2010). Although the court recognized “the enormity of the task before PEMA,” it held that PEMA cannot redact the names of all recipients of goods or services purchased with such funds. Id. at 826. Instead, the court held that PEMA must analyze its documents to determine the “reasonable likelihood” of a threat to the Commonwealth’s infrastructure resulting from disclosure. Id. at 825-26.

Additionally, in Mission Pennsylvania, LLC v. McKelvey, the Commonwealth Court reversed the OOR’s final determination that the objecting parties did not meet their evidentiary burden to prove that the exemption applied to “minimal redactions” made to applications under the Medical Marijuana Act.  --- A.3d ----, 2019 WL 2345090 (Pa. Commw. Ct. 2019).  The redactions related to physical features and security measures of permitted medical-marijuana facilities.  The court held that the record supported the redactions under the exemption.  To that end, the court concluded that the objecting parties satisfied the “reasonable likelihood” threshold.  Moreover, the court noted that the medical marijuana industry (a “cash-based industry”) involves “inherent risk” such that “disclosure of security measures and locations of surveillance systems presents a credible threat to physical security of facilities that amounts to more than mere speculation.”  Id. at *10.

(4) “A record regarding computer hardware, software and networks, including administrative or technical records, which, if disclosed, would be reasonably likely to jeopardize computer security.”

(5) “A record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or other program designed for participation by persons with disabilities, including vocation rehabilitation, workers' compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”

In Department of Corrections v. St. Hilaire, a news reporter requested from the DOC, among other items, all records “that document inmate injuries.”  128 A.3d 859, 860 (Pa. Commw. 2015).  The DOC objected to the request on the basis of this exception.  The OOR, however, granted the reporter’s appeal “noting that the medical incident / injury reports maintained by the DOC could be de-identified and, hence, were not subject to the protections of Section 708(b)(5)  . . . or HIPAA.”  Id. at 862.  On petition to the Commonwealth Court, the DOC argued that the OOR erred by failing to conclude that this exception did not cover the requested inmate records.  The Commonwealth Court disagreed, holding that the exception does not apply to medical incident or injury reports.  Id. at 866.  The court rejected the notion that medical incident / injury reports may be transformed into an exempt medical record simply because those records might possibly contain medical information.  What is more, in this particular case, the evidence demonstrated that the DOC maintained incident / injury reports separate from an inmate’s medical file.  Furthermore, the requestor did not request reports that contained identifiable information.  Even so, the court noted that such information could be redacted from disclosed records.  Cf.Uniontown Newspapers, Inc. v. Dep’t of Corr., 151 A.3d 1196, 1206 (Pa. Commw. Ct. 2016) (recognizing that although the “DOC may be required to redact information from reports . . . [a]n inmate’s medical file is exempt, and not subject to redaction”) (citation omitted).

(6) “(i) The following personal identification information: (A) A record containing all or part of a person's Social Security number; driver's license number; personal financial information; home, cellular or personal telephone numbers; personal e-mail addresses; employee number or other confidential personal identification number. (B) A spouse's name; marital status, beneficiary or dependent information. (C) The home address of a law enforcement officer or judge. (ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee. (iii) An agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.”

Although the Law provides examples of what type of information may qualify as “personal identification information,” the Law does not define the phrase.  Nevertheless, the Commonwealth Court has defined it as information “unique to a particular individual or which may be used to identify or isolate an individual from the general population.” Office of Lieutenant Governor v. Mohn, 67 A.3d 123, 133 (Pa. Commw. Ct. 2013) (holding that the government-issued “personal” e-mail address for the Lieutenant Governor fell within the personal identification information exemption); see also Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Commw. Ct. 2013) (en banc) (holding that government-issued cellular telephone numbers of agency employees are “personal identification information”).

With respect to “personal identification information,” 65 Pa. Stat. Ann. § 67.708(b)(6)(iii) gives law enforcement agencies the discretion to redact that information, including the name of undercover officers from records. See, e.g.Scolforo, 18 A.3d at 442.

Additionally, the Law defines “personal financial information” as: “An individual’s personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.”  65 Pa. Stat. Ann. § 67.102.  Under the Law’s definition, the number of hours an employee works at a third-party entity is not “personal financial information.” Scolforo, 18 A.3d at 442.

(7) “The following records relating to an agency employee: (i) A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation. (ii) A performance rating or review. (iii) The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed. (iv) The employment application of an individual who is not hired by the agency. (v) Workplace support services program information. (vi) Written criticisms of an employee. (vii) Grievance material, including documents related to discrimination or sexual harassment. (viii) Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge. (ix) An academic transcript.”

(8) “(i) A record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract or agreement between the parties in a collective bargaining procedure. (ii) In the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the award or order of the arbitrator in a dispute or grievance procedure.”

(9) “The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.”

In Philadelphia Public School Notebook v. School District of Philadelphia, the School District appealed the Court of Common Pleas’ holding that the requested full texts of resolutions presented during a public meeting of the School Reform Commission were not “drafts.”  49 A.3d 445 (Pa. Commw. Ct. 2012).  In the School District’s view, the summaries provided to the public of the resolutions were sufficient and the full texts were “drafts” that were not required to be disclosed.  To the latter point, the School District contended that “the nature of the [r]esolutions as ‘drafts’ was underscored . . . by the fact that the [School District’s] staff not only could, but actually did, withdraw the [r]esolutions before the [Commission’s] voting meeting.”  Id. at 451.  The Commonwealth Court rejected the School District’s contentions and affirmed the Court of Common Pleas’ holding that the texts of the resolutions were no longer “drafts” “once the School District presented them publicly for discussion among commissioners in a public venue where they were subject to questions from the public at the [Commission’s] public ‘planning’ meeting.”  Id. at 452.  The Commonwealth Court also observed that the failure to provide the full texts of resolutions to the public, for anticipated public comment and questioning, “potentially obfuscated public awareness and understanding of what the [Commission] was actually discussing and considering.”  Id. at 451-52.  In other words, without the full texts of the resolutions, the very reason for holding the public meeting in the first place was potentially undermined.  Id. at 452.

(10) “(i) A record that reflects: (A) The internal, pre-decisional deliberations of an agency, its members, employees or officials or pre-decisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including pre-decisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the pre-decisional deliberations. (B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation. (ii) Subparagraph (i)(A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with 65 Pa.C.S. Ch. 7 shall be a public record. (iii) This paragraph shall not apply to a written or Internet application or other document that has been submitted to request Commonwealth funds. (iv) This paragraph shall not apply to the results of public opinion surveys, polls, focus groups, marketing research or similar effort designed to measure public opinion.”

This exemption, which codifies the deliberative-process privilege, flows from cases interpreting the old Act’s definition of public record. See Office of Governor v. Scolforo, 65 A.3d 1095, 1102 (Pa. Commw. Ct. 2012); see also LaValle v. Office of Gen. Counsel, 769 A.2d 449, 458 (Pa. 2001) (holding that “public record” under the old Act did not encompass records reflecting internal deliberative aspects of agency decision making).

Generally, agencies must demonstrate the records are (1) internal to the agency; (2) pre-decisional; and (3) deliberative.  Indeed that is the test commonly used by the OOR.  See, e.g., Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1212 (Pa. Commw. Ct. 2011).

In Philadelphia Public School Notebook, the Commonwealth Court affirmed the Court of Common Pleas’ holding that the text of resolutions presented to the School Reform Commission at a public meeting were not exempt from disclosure under this exception.  The Commonwealth Court explained that the text of the resolutions “were no longer ‘internal’ deliberations once the [resolutions] were presented . . . for public consideration and comment.”  49 A.3d at 453.

With respect to agencies subject to the Sunshine Act, the pre-decisional deliberation exception applies only if: (1) the requested information constitutes records that reflect pre-decisional deliberations; and (2) the requested records were not presented to a quorum for deliberation, in accordance with the Sunshine Act.  Phila. Public Sch. Notebook, 49 A.3d at 453.       

(11) “A record that constitutes or reveals a trade secret or confidential proprietary information.”

The Law defines “trade secret” as:

“Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The term includes data processing software obtained by an agency under a licensing agreement prohibiting disclosure.”

65 Pa. Stat. Ann. § 67.102; see, e.g., Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 32 (Pa. 2015) (observing that, under this definition, contractual payment rates “are not a close fit with the concept of a ‘trade secret’”).

Courts recognize that this definition of “trade secret” is identical to the one contained in the Uniform Trade Secrets Act. Courts, therefore, have adopted the Uniform Trade Secret Act’s six-factor test to determine whether information should be considered a “trade secret.”  See, e.g., Smith ex rel. Butz, LLC v. Pa. Dep’t of Envtl. Prot., 161 A.3d 1049, 1064 (Pa. Commw. Ct. 2017) (citing 12 Pa. C.S.A. §§ 5302, 5308).  Notably, however, in light of the language of 65 Pa. Stat. Ann. § 67.708(c), the Uniform Trade Secrets Act does not exempt from disclosure financial records that may qualify thereunder as a “trade secret.”  Eiseman, 125 A.3d at 32.

The Law also defines “confidential proprietary information” as “[c]ommercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.” 65 Pa. Stat. Ann. § 67.102.

“In determining whether certain information is ‘confidential,’ . . . ‘the efforts the parties undertook to maintain their [sic] secrecy’” must be considered.  Butz, 161 A.3d at 1064 (citation omitted).  And to determine “whether disclosure of confidential information will cause ‘substantial harm to the competitive position’ of the person from whom the information was obtained, an [agency or] entity needs to show: (1) actual competition in the relevant market; and, (2) a likelihood of substantial injury if the information were released.” Id. (citation omitted).  This “[c]ompetitive harm analysis is limited to harm flowing from the affirmative use of proprietary information by competitors.” Id. (internal quotation marks and citations omitted); see also Crouthamel v. Dep’t of Transp., 207 A.3d 432, 441 (Pa. Commw. Ct. 2019) (affirming the OOR’s final determination that information relating to a specific construction project, i.e., mix formulas for asphalt and production quantities, was exempt from disclosure as “confidential proprietary information”).

In addition to the above, 65 Pa. Stat. Ann. § 67.707(b) provides that an “agency shall notify a third party of a request for a record if the third party provided the record and included a written statement signed by a representative of the third party that the record contains a trade secret or confidential proprietary information.”  Under the same Section, the agency shall provide the notification to the third party “within five business days of receipt of the request for the record.”  Id.  Thereafter, the “third party shall have five business days from receipt of notification from the agency to provide input on the release of the record.”  Id.  In total, the agency has 10 days from the “provision of notice to the third party” to release the records or deny the request and also provide notification to the third party of the agency’s decision.  Id.

(12) “Notes and working papers prepared by or for a public official or agency employee used solely for that official's or employee's own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose.”

In City of Philadelphia v. Philadelphia Inquirer, the Commonwealth Court held that the mayor’s and city council members’ calendars were exempt from disclosure because the requested documents were created solely for the convenience of the mayor and city council members’ personal use in scheduling daily activities and were not circulated outside of the officials’ offices.  52 A.3d 456, 461-62 (Pa. Commw. Ct. 2012).  The court explained that the term “personal” in this exemption “covers those documents necessary for that official that are ‘personal’ to that official in carrying out his public responsibilities.”  Id. at 461.  In other words, the documents do not need to involve a public official’s personal affairs.  Id.; see also Butz, 161 A.3d at 1067 (holding that the agency met its burden of demonstrating that handwritten personal notes prepared by department staff and used solely for the note taker’s own personal use were exempt from disclosure under this exemption).

(13) “Records that would disclose the identity of an individual who lawfully makes a donation to an agency unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official or employee of the agency, including lists of potential donors compiled by an agency to pursue donations, donor profile information or personal identifying information relating to a donor.”

This exemption “protects the identity of individuals acting as private citizens to make contributions to their government.”  Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 730 (Pa. Commw. Ct. 2016).

For purposes of this exemption, “individual” means a natural person, as set forth in the Statutory Construction Act, 1 Pa. C.S.A. § 1991.  Cal. Univ. of Pa. v. Bradshaw, 210 A.3d 1134 (Pa. Commw. Ct. 2019).  Moreover, the term “donation” is not limited to monetary contributions.  Rather, the term here also applies to the volunteering of property and services.  Gillen, 151 A.3d at 729.

(14) “Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works in progress, research-related material and scholarly correspondence of a community college or an institution of the State System of Higher Education or a faculty member, staff employee, guest speaker or student thereof.”

(15) “(i) Academic Transcripts. (ii) Examinations, examination questions, scoring keys or answers to examinations. This subparagraph shall include licensing and other examinations relating to the qualifications of an individual and to examinations given in primary and secondary schools and institutions of higher education.”

(16) “A record of an agency relating to or resulting in a criminal investigation, including: (i) Complaints of potential criminal conduct other than a private criminal complaint. (ii) Investigative materials, notes, correspondence, videos and reports. (iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised. (iv) A record that includes information made confidential by law or court order. (v) Victim information, including any information that would jeopardize the safety of the victim. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. (B) Deprive a person of the right to a fair trial or an impartial adjudication. (C) Impair the ability to locate a defendant or codefendant. (D) Hinder an agency's ability to secure an arrest, prosecution or conviction. (E) Endanger the life or physical safety of an individual. This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b) (relating to accident prevention investigations).”

This exemption is consistent with yet broader than the old Act’s “investigation” exemption which precluded from disclosure “information related to police investigations.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 464 (Pa. Commw. Ct. 1997) (citing Sullivan v. City of Pittsburgh, 561 A.2d 863, 865 (Pa. Commw. Ct. 1989), pet. denied, 575 A.2d 120 (Pa. 1990)); see also Commonwealth v. Mines, 680 A.2d 1227, 1229 (Pa. Commw. Ct. 1996) (“[I]nformation relating to police investigations . . . is excluded from the definition of public records, and therefore, its disclosure is not mandatory under the Act.”).

In determining whether a record is exempt under the current exemption, as relating to a criminal investigation, each record must be reviewed on a case-by-case basis.  Pa. State Police v. Grove, 161 A.3d 877, 894 (Pa. 2017) (“Grove II”).  The “mere fact that that a record has some connection to an investigation does not automatically exempt it.” Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1020 (Pa. Commw. Ct. 2018) (citing Grove II, 161 A.3d at 894).  The record must “relate to” an agency’s criminal investigation, i.e., its “systematic inquiry of examination into a potential crime.”  Grove II, 161 A.3d at 893.

A record may relate to an investigation even if it was created before an investigation begins.  Rothey, 185 A.3d 456; see also Port Auth. of Allegheny Cty. v. Towne, 174 A.3d 1167, 1171 (Pa. Commw. Ct. 2017) (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”).  When records involve “nothing more than what a bystander would observe,” the records are not exempt.  Grove II, 161 A.3d at 894.

This exemption has been applied to exempt from disclosure a video that recorded an assault by a police officer on a detainee, a video that recorded witness interviews, a record containing facts of the execution of a search warrant by Pennsylvania State Police troopers, and notes of police interviews.  See Rothey, 185 A.3d at 466 (record of officer assault), Pa. State Police v. Grove, 119 A.3d 1102 (Pa. Commw. Ct. 2015) (“Grove I”) (record of witness interviews), Mitchell v. Office of Open Records, 997 A.2d 1262, 1263 (Pa. Commw. Ct. 2010) (record of search warrant execution); Pa. State Police v. Office of Open Records, 5 A.3d 473, 479 (Pa. Commw. Ct. 2010) (record of interview notes).

(17) “A record of an agency relating to a non-criminal investigation, including: (i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law. (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court. (B) Deprive a person of the right to an impartial adjudication. (C) Constitute an unwarranted invasion of privacy. (D) Hinder an agency's ability to secure an administrative or civil sanction. (E) Endanger the life or physical safety of an individual.”

To a degree, this exemption overlaps with the exemption under 65 Pa. Stat. Ann. § 67.708(16). See Cent. Dauphin Sch. Dist., 199 A.3d at 1017 (observing that Grove II was relevant to the court’s review of the trial court’s holding that a school bus video did not “relate to” a school district’s non-criminal investigation); see also Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 185 (Pa. Commw. Ct. 2019) (referring to Grove II in reversing trial court’s holding that footage of public area of police department was related to a non-criminal investigation); Towne, 174 A.3d at 1171 (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”). Of course, unlike the 65 Pa. Stat. Ann. § 67.708(16) exemption, this exemption concerns records that “relate to” a “noncriminal investigation.”

A “noncriminal investigation” is “one not undertaken for a criminal prosecution and denotes ‘a systematic or searching inquiry, a detailed examination, or an official probe.’” Hawkins, 199 A.3d at 1017 (quoting Dep’t of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Commw. Ct. 2010)). The “inquiry, examination, or probe must be conducted as ‘part of the agency’s official duties.’” Id. (quoting Dep’t of Health, 4 A.3d at 814).
In Department of Health, the requestor sought documents relating to inspections and surveys conducted by the Department at a nursing home. Dep’t of Health, 4 A.3d at 804. The inspections and surveys were authorized and mandated by statute. See id. at 804, 805-06. In relevant part, the Department rejected the request on grounds that the documents were exempt because they related to a noncriminal investigation. The OOR disagreed, concluding that the documents, at most, related to an inspection, but not an investigation. Accordingly, the OOR ruled in the requestor’s favor. On appeal, the Commonwealth Court reversed the OOR’s conclusion that the requested documents were not exempt under 65 Pa. Stat. Ann. § 67.708(b)(17). Id. at 815-16. The Commonwealth Court rejected the idea that for an agency’s activities to qualify as an “investigation” a triggering event such as the filing of a complaint was necessary. See id. at 812-14. Rather, the focus is to be on the agency’s official duties. Id. at 814. Because the inspections and surveys performed by the Department were within the Department’s official duties, the documents related to those activities were exempt from disclosure under 65 Pa. Stat. Ann. § 67.708(b)(17).

(18) “(i) Records or parts of records, except time response logs, pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings. (ii) This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure.”

Under Section 708(b)(18), it is clear that “time response logs” are not exempt from disclosure.  Furthermore, to permit the citizenry to scrutinize the actions of public officials by evaluating the efficiency of emergency responses and to permit agencies to monitor their own performances, “time response logs” must contain the time of a request for service, the address or cross-street information, and the time when the responder arrived at the scene.  Cty. of York v. Office of Open Records, 13 A.3d 594, 602 (Pa. Commw. Ct. 2011).

(19) “DNA and RNA records.”

(20) “An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner. This exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death.”

(21) “(i) Draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency. (ii) Minutes of an executive session and any record of discussions held in executive session.”

(22) “(i) The contents of real estate appraisals, engineering or feasibility estimates, environmental reviews, audits or evaluations made for or by an agency relative to the following: (A) The leasing, acquiring or disposing of real property or an interest in real property. (B) The purchase of public supplies or equipment included in the real estate transaction. (C) Construction projects. (ii) This paragraph shall not apply once the decision is made to proceed with the lease, acquisition or disposal of real property or an interest in real property or the purchase of public supply or construction project.”

(23) “Library and archive circulation and order records of an identifiable individual or groups of individuals.”

(24) “Library archived and museum materials, or valuable or rare book collections or documents contributed by gift, grant, bequest or devise, to the extent of any limitations imposed by the donor as a condition of the contribution.”

(25) “A record identifying the location of an archeological site or an endangered or threatened plant or animal species if not already known to the general public.”

(26) “A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder's or offeror's economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals).”

As used here, an “award of the contract” means the point of time at the execution of the contract, not the selection of successful offerors. United Healthcare of Pa., Inc. v. Pa. Dep’t of Human Servs., 187 A.3d 1046, 1058 (Pa. Commw. Ct. 2018).

(27) “A record or information relating to a communication between an agency and its insurance carrier, administrative service organization or risk management office. This paragraph shall not apply to a contract with an insurance carrier, administrative service organization or risk management office or to financial records relating to the provision of insurance.”
(28) “A record or information: (i) identifying an individual who applies for or receives social services; or (ii) relating to the following: (A) the type of social services received by an individual; (B) an individual's application to receive social services, including a record or information related to an agency decision to grant, deny, reduce or restrict benefits, including a quasi-judicial decision of the agency and the identity of a caregiver or others who provide services to the individual; or (C) eligibility to receive social services, including the individual's income, assets, physical or mental health, age, disability, family circumstances or record of abuse.”

The Law defines “social services” as:

“Cash assistance and other welfare benefits, medical, mental and other health care services, drug and alcohol treatment, adoption services, vocational services and training, occupational training, education services, counseling services, workers' compensation services and unemployment compensation services, foster care services, services for the elderly, services for individuals with disabilities, and services for victims of crimes and domestic violence.”

65 Pa. Stat. Ann. § 67.102.

(29) “Correspondence between a person and a member of the General Assembly and records accompanying the correspondence which would identify a person that requests assistance or constituent services. This paragraph shall not apply to correspondence between a member of the General Assembly and a principal or lobbyist under 65 Pa.C.S. Ch. 13A (relating to lobbyist disclosure).”

(30) “A record identifying the name, home address or date of birth of a child 17 years of age or younger.”

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B. Other statutory exclusions

In addition to the Section 708 exceptions, the Law permits an agency to deny a requester access:

• “when timely access is not possible due to fire, flood or other disaster”; or
• “to historical, ancient or rare documents, records, archives and manuscripts when access may, in the professional judgment of the curator or custodian of records, cause physical damage or irreparable harm to the record.”

65 Pa. Stat. Ann. § 67.506(b)(1)(i), (ii). Of course, to “the extent possible, the contents of a record under this subsection shall be made accessible to a requester even when the record is physically unavailable.” 65 Pa. Stat. Ann. § 67.506(b)(2).

Other Pennsylvania statutes, administrative code provisions, and policies either specifically grant or deny access to information from the government. Some important examples are:

Abortion Consent Proceedings:

Under the current version of Pennsylvania’s abortion control statute, absent a medical emergency, a pregnant woman who is less than 18 years old and not emancipated, or who has been adjudged an incapacitated person, must obtain the consent of a parent, a guardian, or the courts before she can have an abortion. 18 Pa. C.S.A. § 3206. Court proceedings under the Law are confidential, all records of such proceedings are to be sealed, and the name of the person seeking court consent for an abortion may not be entered on a docket. Id.

Abortion Facility Listings/Maternal Death Rate Data:

Every facility that performs abortions in Pennsylvania must file a quarterly report showing the number of abortions performed for the quarter year, as well as the total abortions performed in each trimester of pregnancy.  If the facility has received state-appropriated funds within the twelve months before the filing, the reports are to be available to the public. 18 Pa. C.S.A. § 3214. The public also has access to an annual statistical report regarding maternal death rates arising from pregnancy, childbirth or intentional abortion. Id.

Adoption Records:

Information relating to the relationship of an adoptee to his or her birth parents is confidential.  23 Pa. C.S.A. § 2935.

AIDS (Acquired Immune Deficiency Syndrome) Information:

Records of AIDS-related testing, treatment and counseling are confidential and may not be released except as specified by the Pennsylvania Confidentiality of HIV-Related Information Act. See 35 P. S. §§ 7607-7608. The person who is the subject of such records may give his or her written consent to disclose HIV-related information, but the form, content, and expiration dates of such consensual disclosures are strictly regulated by law. Id. § 7607. Courts may also release AIDS records when the person seeking the information or the person seeking to disclose the information establishes a “compelling need” for the information. Id. § 7608. This is a very high standard of proof that rarely will be met.

Boat Registration Documents:

All records relating to registration and numbering of boats shall be public records. 30 Pa. C.S.A. § 5313.

Campus Security Information:

The campus police or campus security officers of each institution of higher education must maintain a daily log as a public record. 18 P.S. § 20.303. These logs will include all complaints and crime reports, the disposition of any charges filed, the names and addresses of only those adult persons arrested and charged, and the charges filed against those persons. Id.

Charitable Organization Information:

Under the Solicitation of Funds for Charitable Purposes Act, registration statements and applications, reports, notices, contracts or agreements between charitable organizations and professional fundraising counsels, professional solicitors and commercial co-venturers, and other similar documents are generally available to the public for review. 10 P.S. § 162.11. In addition, these charitable organizations, professional fundraising counsels and professional solicitors are required to keep accurate fiscal records of their activities in Pennsylvania, which will be made available to the public after removing any information that could identify specific contributors.  Id. § 162.12.

Criminal Histories:

While Pennsylvania’s Criminal History Record Information Act classifies records maintained in a central repository as confidential, it expressly reserves the public’s right to access certain other information. See 18 Pa. C.S.A. §§ 9101-9183. For example, a criminal justice agency can disclose any information that can be found in police blotters, documents prepared or maintained by or filed in any court in Pennsylvania, posters, announcements, or lists for identifying or apprehending fugitives or wanted persons, or announcements of executive clemency. Id. § 9104. Under Pennsylvania’s Megan’s Law (42 Pa. C.S.A. § 9799.10, et seq.) certain information regarding sexually violent offenders is public information, including name, alias, year of birth, address of home and employer and description of the underlying offense. See 42 Pa. C.S.A. §§ 9799.28, 9799.63.  Information regarding non-sexually violent predators (i.e., persons not likely to engage in predatory sexually violent offenses upon release from custody) is “investigative information” and not accessible. Dep’t of Auditor Gen. v. Pa. State Police, 844 A.2d 78, 80 (Pa. Commw. Ct. 2004).

District Justice Records:

The general policy of the Administrative Office of Pennsylvania Courts is to make case indexes, dockets, and files for all matters originating in a District Justice office available to the public for inspection and photocopying. Pub. Access Policy of the Unified Judicial Sys. of Pa.: Dist. Justice Records (Admin. Office of Pa. Courts 1997). Access to certain information may be limited due to personal privacy and security concerns, such as the protection of the identities of child victims of sexual or physical abuse. Id.

Hazardous Substance Information:

Most records, reports or other information obtained under the Hazardous Sites Cleanup Act that relate to health or safety effects of a hazardous substance or contaminant can be obtained from the Department of Health. 35 P S. § 6020.503.

According to the Worker and Community Right-to-Know Act, any person living in Pennsylvania who is not a competitor may request from the Department of Health a copy of any Material Safety Data Sheet or Hazardous Substance Fact Sheet on file for a particular workplace. 35 P.S. § 7305.

Health Care Cost Containment Council Data:

The Health Care Cost Containment Act requires the council to provide the general public with reports, which include information regarding health care providers and services available in the area, such as comparisons among providers of provider service effectiveness, differences in mortality rates, differences in length of stay, ancillary services provided, and incidence rates of selected procedures. 35 P.S. § 449.7. The council may also, at its discretion, provide the public with access to special reports derived from its raw data for a reasonable fee.  Id.

Higher Education Gift Disclosure:

According to the Higher Education Gift Disclosure Act, every college and university must disclose, and make available to the public for review and copying, information regarding gifts of at least $100,000, in which a foreign government, foreign legal entity or foreign person contributed more than 50% of the total gift. 24 P.S. §§ 6303, 6305.

House of Representatives Employee List/Voucher Submission Information:

A central personnel file for all House of Representatives employees, containing the employees’ job titles, duties, and compensation, must be maintained and kept available for public inspection. 46 P. S. § 42.121g. In addition, all vouchers submitted for reimbursement from any House Appropriation Account are available for public inspection. Id. § 42.121h.

Information Regarding Disposal of Refuse from Mines:

All papers, records, and documents of the Department of Environmental Protection, and applications for permits pending before the department that relate to the disposal of refuse from mines, except for information pertaining only to the chemical and physical properties of coal, are available to the public for inspection. 52 P.S. § 30.55.

Insurance Information:

Working papers, recorded information, and documents produced or obtained by the Insurance Department or any other person in the course of an insurance examination are generally treated as confidential. 40 P.S. § 323.5. The only exception to this rule is that thirty days after an examination report is adopted, it may be treated as a public record if no court has stayed its publication. Id.

Liquor License Information:

The names and addresses of all persons who have a pecuniary interest in the conduct of business on premises that are licensed for the sale of liquor, alcohol, and malt and brewed beverages are available to the public. 47 P.S. § 4-473.

Lists of Large Political Contributions from Business Entities:

Any business entity which has received any non-bid contracts from the Commonwealth or its political subdivisions during the previous year must submit to the Secretary of the Commonwealth (1) an itemized list of all political contributions made by any officer, director, associate, owner or member of their immediate family when the contributions exceed an aggregate of $1,000; and (2) all political contributions made by any employee or members of his immediate family when contributions exceed $1,000. 25 P. S. § 3260a. It is the responsibility of the Secretary of the Commonwealth to publish and make available to the public a complete list of all contributions for inspection and copying. Id.

Mental Health Records:

In general, mental health treatment records are confidential. 50 P.S. § 7111.

Noncoal Surface Mining Permit Information:

All documents of the Department of Environmental Protection, and applications for permits pending before the department that relate to non-coal surface mining, except for information pertaining only to the chemical and physical properties of the mineral or elemental content that is potentially toxic to the environment, are available to the public. 52 P.S. § 3310.

Oil and Gas Conservation Commission Documents:

All rules, regulations, and orders issued by the Oil and Gas Conservation Commission must be kept in writing, and they must be made available to the public. 58 P S. § 410.

Overdue Support Information:

Absent a court order stating that disclosure of such information would unreasonably put a child or party’s health, liberty or safety at risk, the identity of and the amount of overdue support owed by any person who has failed to pay his or her support obligation will be made available to the public either by a paper listing, diskette or any other electronic means, and it will be updated at least monthly. See 23 Pa. C.S.A. § 4352.

PENNDOT Motor Vehicle Records:

Information contained in state motor vehicle records is generally considered confidential, absent the express consent of the person who is the subject of the record. 75 Pa. C.S.A. § 6114. Under federal law, however, personal information found in a motor vehicle record may be disclosed for a variety of reasons, including for use in research activities (i.e., the production of statistical reports), “so long as the personal information is not published, redisclosed, or used to contact individuals.” 18 U.S.C. § 2721.

Precious Metal Dealer Licensing Information:

Applications for licenses to become a dealer in precious metals are public records. 73 P.S. § 1932.

Public Employee Retirement Study Information:

All reports and analyses compiled by or filed with the Public Employee Retirement Commission shall be available for public inspection at the offices of the commission. 43 P.S. § 1409.

Public Utility Information:

The Public Utility Commission must make the following information available to the public: (i) records of the names of each consultant hired, the services performed for the commission, and the amounts expended for these services, (ii) copies of reports regarding increased rates charged by public utilities due to fluctuations in fuel costs, and (iii) copies of similar reports regarding tariffs filed by natural gas companies due to fluctuations in natural gas costs. 66 Pa. C.S.A. §§ 305, 1307.

Public Welfare Information:

The Department of Human Services will only furnish the identities of and other personal or confidential information regarding welfare recipients to adult residents of the Commonwealth of Pennsylvania who will not use the information for commercial or political purposes. Information regarding any person’s application or receipt of medical assistance is not public. 62 P.S. § 404.

River Basin Commissions’ Records:

According to each commission’s respective River Basin Compact, both the Delaware River Basin Commission and the Susquehanna River Basin Commission must make annual reports discussing their programs, operations and finances, and annual audits of their financial accounts available to the public. 32 P.S. § 815.101 (regarding the Delaware River Basin Compact); 32 P.S. § 820.1 (regarding the Susquehanna River Basin Compact).

Senate Employee Lists/Voucher Submission Information:

The following information regarding Senate employees must be made available to the public: employees’ names, addresses, job titles, duties, and compensation. 46 P.S. § 42.102d. The public also has access to all vouchers submitted for reimbursement or payment for any appropriation made to the Senate.  Id.

Sentencing Data:

The Pennsylvania Commission on Sentencing, through the Inter-University Consortium for Political and Social Research, releases sentencing data sets for each year, as well as a variety of standard reports which include specific types of information. Sentencing in Pennsylvania, 2017 Annual Report (available at http://pcs.la.psu.edu/publications-and-research/annual-reports). The names and social security numbers of the offenders, as well as the names of the sentencing judges, will be removed from any data sets made available to the public.  Id.

State Ethics Commission:

The State Ethics Commission is authorized to investigate potential violations of the Law, to make findings of fact regarding violations, and to hold hearings to determine whether a violation of the Law has in fact occurred. 65 Pa. C.S.A. § 1107. While the Commission is required to keep confidential its investigative records, including records of its proceedings, the commission’s final orders and findings of fact entered after the conclusion of an investigation are public records. Id. § 1108; see also Stilp v. Contino, 743 F.Supp.2d 460 (M.D. Pa. 2010) (holding that to the extent § 1108(k) prohibits the disclosure of the fact of filing a complaint with the commission, the statute is an unconstitutional infringement on the First Amendment freedom of speech).

Tax Information:

Information gained by the Department of Revenue or any administrative department, board or commission, as a result of a tax return or investigation required or authorized under Pennsylvania statutes that impose taxes or provide for the collection of taxes, is confidential. 72 P.S. § 7274; see also id. § 731. Similarly, local taxing authorities such as school districts are statutorily prohibited from disclosing tax information. See 53 Pa. C.S.A. § 8437; see, e.g., Juniata Valley Sch. Dist. v. Wargo, 797 A.2d 428, 430-31 (Pa. Commw. Ct. 2002); Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711, 713-15 (Pa. Commw. Ct. 1999).

Tenement-House Licensing Information:

The mayor of first-class cities must maintain a public record of all tenement-house licenses issued, and the original applications must be preserved for one year. 53 P.S. § 15093; see also id. § 15074 (defining “tenement house” as a “building which, or a portion of which, is occupied, or is to be occupied, as a residence of three or more families, living independently of each other, and doing their cooking upon the premises”).

Veterans’ Grave Registration Records:

The county commissioners of each county shall compile a list, known as the Veterans’ Grave Registration Record, of the burial places within such county of servicepersons and all veterans. 16 P.S. §§ 1923-A, 5123, 8041, 8069. The lists are available for public inspection, and they should include the service in which the person was engaged, the number of the regiment, company or command, the rank and period of service, the name and location of the cemetery or other place in which the person's body is interred, the location of the grave in a cemetery or other place, and the character of headstone or other marker, if any, at the grave. Id.

Vital Statistics

Vital statistics records, such as birth and death certificates, are generally not available to the public. 35 P.S. § 450.801.  Certain vital statistics records, however, can be made available to applicants who show a direct interest in the content of the vital statistics record and that the information in the record is necessary for the determination of personal or property rights. Id. § 450.804

Voter Information:

The following documents are generally open to public inspection: records of registration commissions and district registers, street lists, official voter registration applications, petitions and appeals, witness lists, accounts and contracts, and reports. 25 Pa. C.S.A. § 1207.

Street lists include the names and addresses of all registered electors residing in the district.  25 Pa. C.S.A. § 1403. And the commission may, for a reasonable fee, distribute the list to “organized bodies of citizens.”  Id.

Public information lists contain the name, address, date of birth and voting history of each registered voter in the county, and they may also contain information on voting districts. 25 Pa. C.S.A. § 1404. Any individual who inspects the list, or who acquires names of registered voters from the list, must state in writing that any information obtained from the list will not be used for purposes unrelated to elections, political activities or law enforcement. Id.

Each commission must preserve computer lists used as district registers for five years.  25 Pa. C.S.A. § 1405. The department and each commission must preserve for two years and make available to the public all records pertaining to the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of registered electors, except to the extent that the records relate to a declination to register to vote or to the identity of a voter registration agency through which any qualified elector is registered. Id.

Water Right Acquisition Records:

An up-to-date Water Acquisition Record, containing information on all confirmed water right acquisitions and all permits for the acquisition of water rights, must be made available for public inspection. 32 P.S. § 634.

Family Educational Rights and Privacy Act (“FERPA”):

FERPA is a federal law that provides privacy protections to students and parents concerning a student’s educational records.  See 20 U.S.C. § 1232g.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

The scope of records covered by the Law does not “supersede or modify the public or nonpublic nature of a record or document established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306; see also 65 Pa. Stat. Ann. § 67.3101.1 (“If the provisions of this act regarding access to records conflict with any other [f]ederal or [s]tate law, the provisions of this act shall not apply.”). In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that.

Note: In McMullan v. Wohlgemuth, the Pennsylvania Supreme Court reversed a decision ordering the Department of Public Welfare to grant reporters access to requested public-assistance information.  308 A.2d 888 (Pa. 1973).  The court explained that the First Amendment to the United States Constitution does not guarantee to the press the right to gather information for news reporting that is statutorily protected from disclosure.  Id. at 896-98.  Further, in Capital Cities Media, Inc. v. Chester, the United States Court of Appeals for the Third Circuit (which includes Pennsylvania’s federal courts) rejected the contention that the First Amendment afforded the public a broad right of access to documents and records held by a Pennsylvania administrative agency. 797 F.2d 1164, 1175-76 (3d Cir. 1986) (en banc); see also First Amendment Coal. v. Judicial Inquiry and Review Bd., 784 F.2d 467 (3d Cir. 1986) (vacating decision finding a First Amendment violation for the non-disclosure of  records relating to all judicial disciplinary proceedings, at all stages).

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

Where a document contains information that is subject to access as well as information that is not subject to access, but able to be redacted, the agency must provide access to the document while redacting or omitting the information not subject to access.  65 Pa. Stat. Ann. § 67.706; see also Times Publ’g Co., Inc. v. Michel, 633 A.2d 1233, 1239 (Pa. Commw. Ct. 1993), pet. denied, 645 A.2d 1321 (Pa. 1994) (explaining under the old Act that information in a document that is not protected from disclosure is still accessible even if the same document also contains protected information).

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Though, “certain records of a coroner, such as autopsy reports, are exempt under Section 708(b)(20) of the RTKL, these records are available pursuant to the Coroner's Act, 16 P.S. §§ 1231-1253.”  See In re Miller v. Lancaster Cty., 2018 WL 1542110 (Pa. Off. Open Rec. 2018) (citing 65 P.S. § 67.3101.1: “If the provisions of this act regarding access to records conflict with any other . . . state law, the provisions of this act shall not apply.”).  Section 1251 of the Coroner's Act states that “[e]very coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” 16 P.S. § 1251. The Pennsylvania Supreme Court has found that records pertaining “to a duty of a coroner in his or her official capacity,” including autopsy reports, are “official records and papers” of a coroner that are required to be deposited with the county prothonotary. See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009) (“It is clear . . . that conducting autopsies is one of the official duties of a coroner. It follows logically that a coroner's resulting autopsy reports constitute ‘official records and papers' within the meaning of Section 1251.”).

This was reaffirmed by the Office of Open Records in holding that the Coroner’s Act requires broad disclosure of all applicable records such as autopsy, toxicology, inquisition, and coroner's reports. See In re Say v. Lehigh Cty., 2019 WL 1619865 (Pa.Off.Open Rec. 2019).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

All records produced during an administrative investigation are exempted from disclosure under 65 Pa. Stat. Ann. § 67.708(17).  See, e.g., Dep’t of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Commw. Ct. 2010); Stein v. Plymouth Twp., 994 A.2d 1179 (Pa. Commw. Ct. 2010); but see Uniontown Newspapers, Inc. v. Pa. Dep’t. of Corr., 151 A.3d 1196, 1206–07 (Pa. Cmmw. 2016) where requester sought – and was granted – access to “[internal] investigation-related records and records pre-existing the [internal] investigation”).

The Law makes no distinction between active and closed investigations.

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C. Bank records

The canceled checks of a township’s bank account and payroll account are public records accessible to the public, even if in the possession of a private bank. Carbondale Twp. v. Murray, 440 A.2d 1273, 1274-75 (Pa. Commw. Ct. 1982) (interpreting old act). Contra Commonwealth v. Barclay, 47 Del. Cty. Rptr. 203 (1960) (interpreting old act).

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D. Budgets

Budgets of a public agency are presumptively available as “financial records.”  65 Pa. Stat. Ann. §§ 67.301-302, 304.

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E. Business records, financial data, trade secrets

The Law exempts any “record that constitutes or reveals a trade secret or confidential proprietary information.” 65 Pa. Stat. Ann. § 67.708(b)(11).

A trade secret is defined as:

“Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”

65 Pa. Stat. Ann. § 67.102.

The Law sets forth notification requirements where requests implicate trade secrets or confidential proprietary information of a third party. If a request for access seeks trade secrets or confidential proprietary information, the agency must, within five business days of receipt of the request, notify the third party that provided the record so long as the third party had given a written, signed statement that the record contained a trade secret or confidential proprietary information. Upon such notice, the third party has five business days “to provide input on the release of the record.” The agency shall either deny the request or release the record within ten business days of providing the third party with the request, and shall notify the third party of the decision. 65 Pa. Stat. Ann. § 67.707(b).

What constitutes a trade secret has also been litigated under the prior act. One Pennsylvania court rejected the relevance of trade secrets “when the function [of the agency] is recognized as governmental[] rather than that of a private business.” Hoffman v. Pa. Game Comm’n, 455 A.2d 731 (Pa. Commw. Ct. 1983) (rejecting Game Commission’s contention that its subscribers’ mailing list of the Pennsylvania Game News is a trade secret) (interpreting the old act); see also Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609, 626 (Pa. Cmmw. 2009) (finding the department’s funding of a health plan that required an agreement between the health plan and healthcare providers resulted in an agreement that was subject to disclosure).

Confidential proprietary information is defined as “[c]ommercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.” 65 Pa. Stat. Ann. § 67.102.

The Law also exempts proposals regarding an agency’s procurement or disposal of goods and services, including “financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability.” 65 Pa. Stat. Ann. § 67.708(b)(26). This provision specifically overturns prior case law that held that trade secrets and other confidential information are publicly available if a state contractor voluntarily includes them as part of the bid package for a public contract. See Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208, 213-14 (Pa. Commw. Ct. 1995); see also Lukes, 976 A.2d at 626.

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F. Contracts, proposals and bids

All contracts “where the consideration involved” is valued at $5,000 must be retained and disclosed to the Treasury Department. 65 Pa. Stat. § 67.1701.  Further, all “financial records” are presumptively available under the Law. Id. (defining a “public record” to include a “financial record”); see also Dep’t of Conservation and Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. Ct. 2010) (citing, with approval, interpretations of the “contracts” language in the old act); Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208, 212 (Pa. Commw. Ct. 1995) (interpreting the old act); Ryan v. Pa. Higher Educ. Assistance Agency, 448 A.2d 669 (Pa. Commw. Ct. 1982) (interpreting the old act).

Proposals and bids are exempt from disclosure “prior to the award of the contract or prior to the opening and rejection of all bids.” 65 Pa. Stat. Ann. § 67.708(b)(26). In addition, the Law specifically exempts “financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder’s or offeror’s economic capability.” Id.

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G. Collective bargaining records

The Law exempts several types of records pertaining to collective bargaining proceedings while they are pending. 65 Pa. Stat. Ann. § 67.708(b)(8)(i)-(ii).

It exempts any “record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings.” 65 Pa. Stat. Ann. § 67.708(b)(8)(i). But this exemption does not extend to “a final or executed contract or agreement between the parties in a collective bargaining procedure.” Id.

It also exempts, in “the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion.” 65 Pa. Stat. Ann. § 67.708(b)(8)(ii). This exemption, however, does “not apply to the final award or order of the arbitrator in a dispute or grievance procedure.” Id. at (8)(i).

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H. Economic development records

These records would be presumptively be available as they are “financial records.” Recently, the Office of Open Records (OOR) required the disclosure of records relating to proposals to Amazon for its proposed second headquarter project. See In re Krauss v. Pa. Dep’t of Cmty. & Econ. Dev., 2018 WL 4383155 (Pa.Off.Open Rec. 2018).  The OOR rejected the Department’s argument that the proposals contained “trade secrets” exempt from disclosure. Id.

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I. Election Records

The election records of the Secretary of the Commonwealth, including “all returns, nomination petitions, certificates and papers,” must be open to public inspection and may be inspected and copied by any person qualified to vote in Pennsylvania. 25 Pa. C.S.A. § 2622.

The records of county boards of election, except for the contents of ballot boxes and voting machines, must be open for inspection and copying by any person qualified to vote in Pennsylvania. 25 Pa. C.S.A. § 2648.

In each case, the inspection must take place in the presence of a board or commission member or a representative of the secretary of the Commonwealth. Id.

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J. Emergency Medical Services records

Aside from “time response logs,” emergency medical service records are exempt from disclosure.  See 65 Pa. Stat. Ann. § 67.708(b)(18)(i); Cty. of York v. Pa. Office of Open Records, 13 A.3d 594 (Pa. Cmmw. 2011) (ruling that address information was not exempt from disclosure).

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) required that regulations be adopted concerning the disclosure of protected health information. HIPAA protects all “individually identifiable information” from disclosure without the release of the patient. 45 C.F.R. § 160.103. De-identified health information may be disclosed. 45 C.F.R. §§ 164.502 and 164.514. Identifiable health information may be disclosed without a patient release in limited situations. 45 C.F.R. § 164.502(a)(1). In general, state laws that are contrary to the HIPAA privacy rule are preempted by the federal requirements. 45 C.F.R. § 160.203.

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K. Gun permits

While the Law does not specifically address gun permits, gun permits, with certain personal information redacted pursuant to 65 Pa. Stat. Ann. § 67.708(b)(6), are likely public records under the Law.

Under the old act, certain information in a gun permit application is public, e.g., name, race, reason for requesting the license, personal references, and answers to background questions. Other information – e.g., home addresses, telephone numbers and social security numbers – is protected from disclosure under the law’s personal security exception.  See Pa. State Educ. Ass’n. v. Commonwealth, 148 A.3d 142 (Pa. 2016).

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L. Homeland security and anti-terrorism measures

The Law has several provisions that implicate homeland security measures.

Most importantly, the Law contains an exemption for any “record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity or a record that is designated classified by an appropriate Federal or State military authority.” 65 Pa. Stat. Ann. § 67.708(b)(2). “Homeland security” is defined as any “[g]overnment actions designed to prevent, detect, respond to and recover from acts of terrorism, major disasters and other emergencies, whether natural or manmade.” 65 Pa. Stat. Ann. § 67.102.

The Law also has an exemption applicable to records that, if disclosed, “create[ ] a reasonable likelihood of endangering the safety or physical security of a building, public utility, resource, infrastructure, facility or information storage system.” 65 Pa. Stat. Ann. § 67.708(b)(3); see Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Commw. Ct. 2010) (requiring the Pennsylvania Emergency Management Agency to analyze each requested record to determine whether disclosure is “reasonably likely” to threaten the Commonwealth’s infrastructure). 

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M. Hospital reports

The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) required that regulations be adopted concerning the disclosure of protected health information. HIPAA protects all “individually identifiable information” from disclosure without the release of the patient. 45 C.F.R. § 160.103. De-identified health information may be disclosed. 45 C.F.R. §§ 164.502 and 164.514. Identifiable health information may be disclosed without a patient release in limited situations. 45 C.F.R. § 164.502(a)(1). In general, state laws that are contrary to the HIPAA privacy rule are preempted by the federal requirements. 45 C.F.R. § 160.203.

The Law similarly contains a broad exemption for medical information. It exempts:

“[Any] record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers’ compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”

65 Pa. Stat. Ann. § 67.708(b)(5).

C.f. Uniontown Newspapers, Inc. v. Pa. Dep’t. of Corr., 151 A.3d 1196, 1208 (Pa. Cmmw. 2016) (approving the disclosure of “diagnosis data” pertaining to types of inmate illnesses that did not include individually identifiable information).

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N. Personnel records

The Law contains an exemption for certain “records relating to an agency employee.” The exemption includes the following records:

“(i) A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation. (ii) A performance rating or review. (iii) The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed. (iv) The employment application of an individual who is not hired by the agency. (v) Workplace support services program information. (vi) Written criticisms of an employee. (vii) Grievance material, including documents related to discrimination or sexual harassment. (viii) Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge. (ix) An academic transcript.”

65 Pa. Stat. Ann. § 67.708(b)(7).

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1. Salary

Salary information of a public employee or agency official is presumptively accessible. 65 Pa. Stat. Ann. § 67.708(b)(6)(ii).

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2. Disciplinary records

Disciplinary records are not publicly available unless included in a “final action” resulting in “demotion or discharge.”  65 Pa. Stat. Ann. § 67.708(b)(7)(viii).

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3. Applications

Not publicly available under 708(b)(7)(iv) for individuals who have not been hired by the agency.

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4. Personally identifying information

Records containing personal identifying information must not be disclosed absent redaction. For example, the Commonwealth Court held that the final arbitration awards and orders in union grievance matters are subject to disclosure under the Right to Know Law, so long as personal information was redacted.  See Lutz v. City of Phila., 6 A.3d 669, 676 (Pa. Cmmw. 2010).

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5. Expense reports

Expense reports are presumptively accessible.

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

The Law contains a broad exemption for records “relating to or resulting in a criminal investigation.” 65 Pa. Stat. Ann. § 67.708(b)(16). This exemption includes complaints, investigative materials, confidential source records, victim information and other records. Id. at (b)(16)(i)-(vi).

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1. Accident reports

Only reports created pursuant to 75 Pa.C.S. § 3754(b) (accident prevention investigations) are exempt under 65 Pa. Stat. Ann. § 67.708(b)(16).

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2. Police blotter

Police blotters are not exempt from disclosure.  65 Pa. Stat. Ann. § 67.708(b)(16); 18 Pa.C.S.A. § 9102 (defining “police blotter” as a chronological listing of arrests, including but not limited to the name and address of the individual charged and the alleged offenses).  The definition cited in 18 Pa.C.S.A. § 9102 is the minimum information required before a record will be considered a “police blotter.”  See, e.g., Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa. Commw. Ct. 2010).  However, courts have not yet discussed the quantity or quality of additional information on a police record necessary to transform such a record from a “police blotter” to an exempt police report under Section 708(b)(16).

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3. 911 tapes

65 Pa. Stat. Ann. § 67.708(b)(18) exempts 911 tapes unless public interest outweighs any interest against disclosure.  Time response logs, destination addresses and cross-street information are subject to disclosure.  See Pa. State Police v. Muller, 124 A.3d 761, 766 (Pa. Cmmw. 2015).

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4. Investigatory records

65 Pa. Stat. Ann. § 67.708(b)(16)(vi) exempts:

A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. (B) Deprive a person of the right to a fair trial or an impartial adjudication. (C) Impair the ability to locate a defendant or codefendant. (D) Hinder an agency's ability to secure an arrest, prosecution or conviction. (E) Endanger the life or physical safety of an individual.

The Commonwealth Court has previously opined that material exempt from disclosure as “criminal investigative information” under the RTKL includes: statements compiled by district attorneys, forensic reports, and reports of police, including notes of interviews with victims, suspects and witnesses assembled for the specific purpose of investigation. See, e.g., Barros v. Martin, 92 A.3d 1243, 1250 (Pa. Cmwlth. 2014) (criminal complaint file, forensic lab reports, polygraph reports and witness statements rise to level of criminal investigative information exempt from disclosure); Coley v. Phila. Dist. Attorney’s Office, 77 A.3d 694, 697 (Pa. Commw. Ct. 2013) (witness statements compiled by District Attorney's office are criminal investigative records exempt from disclosure); Pa. State Police v. Office of Open Records, 5 A.3d 473, 478–79 (Pa. Cmwlth. 2010) (incident report prepared by police with notes of interviews of alleged victims and perpetrators assembled during investigation exempt as criminal investigative information); Mitchell v. Office of Open Records, 997 A.2d 1262, 1265–66 (Pa. Cmwlth. 2010) (record pertaining to PSP's execution of search warrant was criminal investigation exempt from disclosure under Section 708 of the RTKL).

Under the Law, Pennsylvania courts have clearly distinguished between open and closed “investigatory records.”  See, e.g., Pa. State Police v. Office of Open Records, 5 A.3d 473 (Pa. Commw. Ct. 2010).  Therefore, closed investigations may fall within the 708(b)(16)(vi) exemption.

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5. Arrest records

65 Pa. Stat. Ann. § 67.708(b)(16)(vi)(A) suggests that an arrest records falls within its exemption because it would likely reveal the institution, progress or result of a criminal investigation prior to the filing of criminal charges.

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6. Compilations of criminal histories

Criminal histories maintained in the Commonwealth’s central criminal repository are statutorily confidential. See 18 Pa. C.S.A. §§  9101-9183. However, certain criminal history compilations are publicly accessible.

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7. Victims

65 Pa. Stat. Ann. § 67.708(b)(16)(v) exempts “[v]ictim information, including any information that would jeopardize the safety of the victim.”

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8. Confessions

Confessions are presumptively accessible.

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9. Confidential informants

65 Pa. Stat. Ann. § 67.708(b)(16)(iii) exempts “[a] record that includes the identity of a confidential source.”

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10. Police techniques

The Law does not explicitly exempt police techniques from its requirements, but the language of 65 Pa. Stat. Ann. § 67.708(b)(16) suggests police agencies may argue the relationship between the revelation of specific investigations to police techniques generally.

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11. Mugshots

The Law is silent on this type of record.

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12. Sex offender records

42 Pa. C.S.A. § 9798.1 sets forth the affirmative duty of the Pennsylvania State Police to post sex offender registry records on the internet.  The following information must be posted: name and all known aliases; year of birth; the street address, municipality, county and zip code of all residences, including, where applicable, the name of the prison or other place of confinement; the street address, municipality, county, zip code and name of any institution or location at which the person is enrolled as a student; the municipality, county and zip code of any employment location; a photograph of the offender, which shall be updated not less than annually; a physical description of the offender, including sex, height, weight, eye color, hair color and race; any identifying marks, including scars, birthmarks and tattoos; the license plate number and description of any vehicle owned or registered to the offender; whether the offender is currently compliant with registration requirements; whether the victim is a minor; a description of the offense or offenses which triggered the application of this subchapter; and the date of the offense and conviction, if available.

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13. Emergency medical services records

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

Although the Law contains no exemption for such records, 37 Pa. Code § 61.2 classifies all parole and probation recommendations as “private and confidential” and thus exempt from disclosure under 65 Pa. Stat. Ann. § 67.305(a)(3). See, e.g., Jones v. Office of Open Records, 993 A.2d 339 (Pa. Commw. Ct. 2010). Other kinds of prison, parole and probation report records could implicate the exemption for records relating to law enforcement or other public safety activity “that, if disclosed, would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity . . . ”  65 Pa. Stat. Ann. § 67.708(b)(2); Woods v. Office of Open Records, 998 A.2d 665 (Pa. Commw. Ct. 2010) (denying public access to sex-offender “Supervision Strategies” on the grounds that sex-offenders in the general public would better evade parole and probation supervision and monitoring).

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Q. Professional licensing records

Professional licenses are publicly available via the Commonwealth’s
online license verification service, found here: https://www.dos.pa.gov/ProfessionalLicensing/VerifyaProfessional/Pages/default.aspx. Disciplinary or corrective action taken by the 29 professional licensing boards, commissions, and Notaries Public can be obtained here: https://www.dos.pa.gov/ProfessionalLicensing/VerifyaProfessional/DisciplinaryActions/Pages/default.aspx#.VBG8xvldUQ0.

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R. Public utility records

The Pennsylvania Public Utility Commission is an agency subject to the Law. See 65 Pa. Stat. Ann. § 67.708(b)(3)(iii).

However, the Law contains an exemption for a “record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system.” Id. That exemption includes “building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems, including public utility systems, structural elements, technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems.” Id.

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S. Real estate appraisals, negotiations

Real estate transactions are presumptively accessible.

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1. Appraisals

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

Under the old Act, deeds and mortgages to which the agency is not a party are not public records. See, e.g., Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004). However, under Inkpen, the requesting party bore the burden of proving that the record was a public record. Id. Under the new law, deeds and mortgages are presumptively accessible.

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5. Zoning records

Zoning records are presumptively accessible.

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T. School and university records

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1. Athletic records

The Law is silent on this type of record.

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2. Trustee records

Given the Commonwealth Court’s holding subjecting a private foundation to the requirements of the Law, it is likely that trustee records directly relating to a “governmental function” are accessible.  See, e.g., E. Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 49 (Pa. Commw. Ct. 2010).

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3. Student records

Academic transcripts are exempt from disclosure under the Law. 65 Pa. Stat. Ann. § 67.708(b)(15)(i).

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

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U. State guard records

The Law is silent on this type of record.

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V. Tax records

Tax records of the government agency are presumptively available.  However, the identity  of specific tax payers would likely be considered exempt. See Current Status, Inc. v. Hykel, 778 A.2d 781 (Pa. Cmmw. 2001) (applying the old Right to Know Act in denying company access to individual tax records, finding that a tax collector is not an “agency” subject to disclosure requirements).

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W. Vital Statistics

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1. Birth certificates

Under a statutory exclusion, the requesting party is required to show a direct interest in the content of the record and that the information is necessary for the determination of personal or property rights. 35 Pa. Stat. § 450.804.

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2. Marriage and divorce

Marriage and divorce information is presumptively accessible.  Directions on obtaining these documents can be found here: https://www.statelibrary.pa.gov/GeneralPublic/VitalRecords/Pages/default.aspx#2.

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3. Death certificates

Under a statutory exclusion, the requesting party is required to show a direct interest in the content of the record and that the information is necessary for the determination of personal or property rights. 35 Pa. Stat. § 450.804.

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4. Infectious disease and health epidemics

Records of AIDS-related testing, treatment and counseling are confidential and may not be released except as specified by the Pennsylvania Confidentiality of HIV-Related Information Act. See 35 P. S. §§ 7607-7608. The person who is the subject of such records may give his or her written consent to disclose HIV-related information, but the form, content, and expiration dates of such consensual disclosures are strictly regulated by law. Id. § 7607. Courts may also release AIDS records when the person seeking the information or the person seeking to disclose the information establishes a “compelling need” for the information. Id. § 7608. This is a very high standard of proof that rarely will be met.

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IV. Procedure for obtaining records

The Law sets forth in detail the required procedures for requesting public records.

The Law permits but does not require an agency to “promulgate regulations and policies necessary for the agency to implement this act.” 65 Pa. Con. Stat. § 67.504(a).

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A. How to start

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1. Who receives a request?

The Law states that “written request[s] must be addressed to the [ORO]” that agencies are required to designate under the Law. 65 Pa. Con. Stat. § 67.703. If such a request is directed to some other agency employee, such employee “shall be directed to forward requests for records to the [agency’s] open records officer.” Id. Every agency subject to the Law is required to post the contact information for its ORO on its website. Id. § 67.504(b).

The Law sets forth how the ORO’s are established and their responsibilities.

Agencies must designate an official or employee to act as the open-records officer. Id. § 67.502(a). For a legislative agency other than the Senate or House of Representatives, the Legislative Reference Bureau must designate an open-records officer. Id.

The functions of the ORO are prescribed in 65 Pa. Stat. Ann. § 67.502(b):

1. Receive requests submitted to the agency. Upon receiving a request, the officer must (a) note the date of receipt on the written request; (b) determine the day on which the 5-day period to respond expires and note that date on the written request; (c) maintain an electronic or paper copy of the request, including all documents submitted with the request; (d) maintain written requests for 10 days or, if an appeal is filed, until a final determination is issued or the appeal is deemed denied; and, for Commonwealth agencies only, (e) create a file for retention of the request, response, written communications.

2. Direct requests to other appropriate persons within the agency or in another agency.

3. Track the agency’s progress in responding to requests.

4. Issue interim and final responses under the act.

Id. §§ 67.502(a), (b)(1)-(2)(i)-(iv).

An agency may promulgate regulations and policies necessary for the agency to implement the Law. Id. § 67.504(a). The Office of Open Records may promulgate regulations relating to appeals involving a Commonwealth agency or local agency. Id.

The Law permits a written request to be submitted in a variety of ways – “in person, by mail, by email, by facsimile or, to the extent provided by agency rules, any other electronic means.” Id. § 67.703

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2. Does the law cover oral requests?

Agencies may, but are not required to, fulfill “verbal” (presumably meaning “oral”) and anonymous requests. 65 Pa. Con. Stat. § 67.702. If the requester wants to pursue “the relief and remedies” provided by the Law, e.g., receive the required form of agency response and take an appeal from any denial of access, “the request for access to records must be a written request.” Id. While agencies may have the statutory discretion to accept oral requests, it appears that Commonwealth agencies under the control of the governor have been instructed to refuse oral requests. See Management Directive No. 205.36 (November 27, 2002).

Round the clock access is not required: “Public records, legislative records or financial records shall be available for access during the regular business hours of an agency.” 65 Pa. Con. Stat. § 67.701(a).

“If a written request for a record is denied or deemed denied, an administrative appeal may be filed with the Office of Open Records, judicial, legislative, or other appropriate appeals officer designated under section 503(d) [of the Law] within 15 business days of the mailing date of the agency’s response or within 15 business days of a deemed denial.”

Id. § 67.1101(a)(1).

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3. Required contents of a written request

The Law requires that the Office of Open Records “develop a uniform form which shall be accepted by all Commonwealth and local agencies in addition to any form used by the agency to file a request.” 65 Pa. Con. Stat. § 67.505(a).

The Law states that judicial agencies or the Administrative Office of Pennsylvania Courts “may develop a form to request financial records or may accept a form developed by the Office of Open Records.” Id. § 67.505(b)

And the Law similarly states that legislative agencies “may develop a form to request legislative records or may accept a form developed by the Office of Open Records.” Id. § 67.505(c).

If any agency develops policies and procedures, they must be “posted at each agency” or “on the agency’s website” (if any). Id. § 67.504(b).

The request must be specific and concise:

“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 unless otherwise required by law.”

Id. § 67.703. A request that requires the agency to perform research or analysis as opposed to requesting a specific record may be denied because the request is unspecific in nature. Askew v. Pa. Office of the Governor, 65 A.3d 989 (Pa. Commw. Ct. 2013).

If an agency regards a particular request as lacking sufficient specificity, the agency must communicate that opinion to the requester. Hunt v. Pa. Dep’t of Corr., 698 A.2d 147 (Pa. Commw. Ct. 1997).  “Where the request is not sufficiently specific, the agency has no obligation to comply with the request because the lack of specificity prevents the agency from determining whether to grant or deny the request.” Associated Builders & Contractors, Inc. v. Pa. Dep’t of Gen. Servs., 747 A.2d 962 (Pa. Commw. Ct. 2000) (holding that requests using “phraseology akin to document requests under the civil discovery rules, i.e., ‘any and all documents relating to [subject matter]’” fail to provide sufficient specificity); see also Arduino v. Borough of Dunmore, 720 A.2d 827 (Pa. Commw. Ct. 1998) (request for “all records relating to” a particular subject was insufficiently specific and the agency “was not required to comply”); Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 461 (Pa. Commw. Ct. 1997) (criticizing requests that “read like discovery requests rather than Right to Know Act requests”).

The Law states that “[a]ll applicable fees shall be paid in order to receive access to the record requested.” 65 P.S. § 67.901. While nothing precludes a requester from seeking a quicker response, the Law imposes no such obligation on the agency. The Law has no provision for future records.

Under the Law, an agency may not limit the number of records sought. 65 P.S. § 67.1308 (prohibiting agencies from establishing policies or regulations that include a “limitation on the number of public records which may be requested or made available for inspection or duplication.”); see also Hunt v. Pa. Dep’t of Corr., 698 A.2d 147 (Pa. Commw. Ct. 1997) (“No provision of the Right to Know Act limits a person seeking information to a single request.”). A denial of access “shall not restrict the ability to request a different record.” 65 P.S. § 67.506(a)(2). However, the Law states that an “agency may deny a requester access to a record if the requester has made repeated requests for that same record and the repeated requests have placed an unreasonable burden on the agency.” 65 Pa. C.S.A. § 67.506(a)(1). An agency cannot refuse a request under 65 Pa. Stat. Ann. § 67.506(a)(1) merely because it is duplicative. See Office of Governor v. Bari, 20 A.3d 634 (Pa. Commw. Ct. 2011). In Bari, the Commonwealth Court held that requesting the same record a second time constitutes “repeated requests” under 65 Pa. Stat. Ann. § 67.506(a)(1). However, the governmental entity must also prove that it was unreasonably burdened by the repetitive request. Id. The court then held that duplicating efforts and budgetary and staffing constraints are inapposite to what it considers an unreasonable burden. See id. It stated that both of these reasons for “unreasonable burden” are too broad and implied that a particularized burden on the agency must be proved.  Id.

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

The Law states how an agency must respond to a Right to Know Law request. An agency must “make a good faith effort to determine if the record requested is a public record, legislative record or financial record and whether the agency has possession, custody or control of the identified record and to respond as promptly as possible under the circumstances existing at the time of the request.” 65 P.S. § 67.901.

If an agency denies a written request in whole or in part, the agency must deny the request in writing. 65 Pa. C.S.A. § 67.903. If an agency denies (in whole or in part) a written request for records, the agency must issue a written response that includes (1) a description of the record requested; (2) the specific reasons for the denial, including a citation of supporting legal authority; (3) the name, title, business address, business telephone number, and signature of the open-records officer who issued the denial; (4) the date of the response; and (5) the procedure for filing an appeal. If a request lacks specificity, the agency must communicate that opinion to the requester. Id. § 67.903.

If an agency fails to explain the basis for its denial, “such a response arguably fails to raise and preserve for appeal the question of the application of any particular authority.” Hunt v. Pa. Dep’t of Corr., 698 A.2d 147 (Pa. Commw. Ct. 1997). In another case, the Pennsylvania Supreme Court held:

“Where a requester has identified material with reasonable specificity and made a colorable claim that it may contain information subject to disclosure pursuant to the Act, the agency should be required to provide sufficiently detailed information concerning the contents of the requested document to enable a reviewing court to make an independent assessment of whether it meets the statutory requirements for mandatory disclosure.”

LaValle v. Office of Gen. Counsel, 769 A.2d 449, 459 (Pa. 2001). The court did not elaborate further, instead leaving it to the Commonwealth Court to “develop standards to ensure that state agencies provide sufficiently detailed information concerning the contents of requested records to permit meaningful appellate review.” Id. The Pennsylvania Supreme Court added that “sound policy would appear to support the availability of an in camera procedure, where appropriate, and perhaps, in some circumstances, its requirement upon proper demand.” Id.

The Law has several additional provisions regarding access to records.

  1. Certified Copies: If the agency grants access, the agency is required, upon request, to provide a “certified copy of the record if the requester pays the applicable fees.” 65 Pa. C.S.A.67.904.
  2. Production of Non-Public Records: If an agency produces a record that is not a public record, legislative record or financial record, “the agency shall notify any third party that provided the record to the agency, the person that is the subject of the record and the requester.” § 67.707(a).
  3. Trade Secrets/Confidential Proprietary Information: If a request for access seeks trade secrets or confidential proprietary information, the agency must, within five business days of receipt of the request, notify the third party that provided the record so long as the third party had given a written, signed statement that the record contained a trade secret or confidential proprietary information. Upon such notice, the third party has five business days “to provide input on the release of the record.” The agency shall either deny the request or release the record within ten business days of providing notice to the third party of the request, and shall notify the third party of the decision. § 67.707(b).
  4. Failure to Retrieve Records: If the agency’s response states that records are available for delivery at the agency’s office and the requester fails to retrieve the records within 60 days, “the agency may dispose of any copies which have not been retrieved and retain any fees paid to date.” § 67.905.

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1. Statutory, regulatory or court-set time limits for agency response

The Law requires that an agency “respond as promptly as possible under the circumstances existing at the time of the request.” 65 Pa. C.S.A. § 67.901. The agency must respond no later than “five business days from the date the written request is received by the open-records officer for the agency.” Id. If an agency fails to send a response within that time period, “the written request for access shall be deemed denied.” Id.

The Law, however, allows agencies a longer time to respond – 30 days – if the agency determines that one of seven exceptions apply:

  1. the request requires redaction;
  2. the request requires “retrieval” of a record “stored in a remote location;”
  3. a timely response to the request cannot be accomplished “due to bona fide and specified staffing limitations;”
  4. a “legal review” is necessary to determine whether the record is a record subject to access under the Law;
  5. the requester has “not complied” with the agency’s policies;
  6. the requester refuses to pay applicable fees authorized by the Law; or
  7. the “extent and nature of the request precludes a response within the required time period.”

65 Pa. C.S.A. § 67.902(a)(1)-(7). In such situations, the agency must “send written notice” to the requester “within five business days of receipt of the request.” Id. § 67.902(b)(1). The notice shall include the statement “that the request for access is being reviewed, the reason for the review, a reasonable date that a response is expected to be provided, and an estimate of the applicable fees owed when the record becomes available.” Id. § 67.902(b)(2). If the agency’s expected response date is “in excess of 30 days,” “the request for access shall be deemed denied unless the requester has agreed in writing to an extension to the date specified in the notice.” Id. If the requester agrees to the extension and the agency fails to respond by the date agreed upon, “the request shall be deemed denied.” Id. § 67.902(b)(3).

In summary:

Agencies must respond within 5 business days of receiving a request, and may have up to 30 days to respond if one of the enumerated exceptions described above is satisfied.

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2. Informal telephone inquiry as to status

The Law does not prohibit such an inquiry, but the agency is under no legal obligation to respond to the inquiry.

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3. Is delay recognized as a denial for appeal purposes?

Yes.

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4. Any other recourse to encourage a response

None by statute.

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C. Administrative appeal

The Law requires an administrative appeal process before any court action.

If an agency denies a request for access to a government record, or a portion of a record, or if the request is deemed denied by the agency, an administrative appeal may be filed with the OOR, judicial, legislative, or other appropriate appeals officer within 15 business days of the mailing date of the agency’s response or deemed denied date. 65 Pa. C.S.A.§ 67.1101(a)(1). Unless the requester agrees otherwise, the appeals officer shall make a final determination which shall be mailed to the requester and the agency within 30 days of receipt of the appeal. Id. § 67.1101(b)(1).

The Law permits but does not require the Office of Open Records to “promulgate regulations relating to appeals involving a Commonwealth agency or local agency. Id. § 67.604(a).

The procedures for administrative appeals are set forth below.

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1. Time limit to file an appeal

Appeals must be filed within 15 business days of the mailing date of the agency’s response or within 15 business days of a deemed denial. 65 Pa. C.S.A. § 67.1101(a)(1).

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2. To whom is an appeal directed?

Appeals should be directed to the OOR or the “judicial, legislative or other appeals officer designated” by an agency. 65 Pa. C.S.A. § 67.1101. The Law requires that Commonwealth, local, judicial and legislative agencies designate an appeals officer. Id. § 67.503(a)-(c). It also requires that the Pennsylvania Senate, House of Representatives, Attorney General, State Treasurer, Auditor General and district attorney for each county shall each designate an appeals officer. Id. § 67.503(c)-(d). While the OOR hears appeals from Commonwealth and local agencies, the OOR does not have jurisdiction under the Law to hear appeals from determinations of a judicial or legislative agency of the Commonwealth. Id. § 67.503.

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3. Fee issues

The Law provides for an award of court costs and attorneys’ fees to agencies and requesters in certain situations specified in the Law depending on whether the court reversed the OOR’s determination. 65 Pa. C.S.A. § 67.1304(a). A court may also award reasonable attorneys’ fees and costs of litigation if the court finds that the legal challenge was frivolous. Id. § 67.1304(b). Nothing in the Law prohibits a court from imposing penalties and costs in accordance with applicable rules of the court. Id. § 67.1304(c).

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4. Contents of appeal

The Law requires that the appeal “state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and shall address any grounds stated by the agency for delaying or denying the request.” 65 Pa. C.S.A. § 67.1101(a)(1). The Office of Open Records maintains a standard appeal form on its website. https://www.openrecords.pa.gov/Appeals/ProceduralGuidelines.cfm.

An appeal must identify the record requested. The Law requires that the appeal “address any grounds stated by the agency for delaying or denying the request.” Id. § 67.1101(a)(1); see, e.g., Dep’t of Corr. v. Office of Open Records, 18 A.3d 429 (Pa. Commw. Ct. 2011) (reversing Office of Open Records determination that the requester sufficiently addressed the grounds for denial by articulating the procedural history of the request and stating that the “right to know requests are public”).

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5. Waiting for a response

After an appeal is filed, the Office of Open Records will send an acknowledgment letter recognizing receipt of the appeal and will assign an appeals officer to review the appeal. 65 Pa. C.S.A. § 67.1101(a)(2). The appeals officer is required to make a “final determination” that must be mailed to the requester and agency “within 30 days of receipt of the appeal.” Id. § 67.1101(b)(1). If the appeals officer fails to do so, “the appeal is deemed denied.” Id. § 67.1101(b)(2).

The appeals officer is required to do the following:

  1. Set a schedule for the requester and open records officer to submit documents in support of their positions;
  2. Review all information filed relating to the request;
  3. Consult with agency counsel as appropriate;
  4. Issue a final determination.

See id. § 67.1102(a).

If a person other than an agency or requester has a direct interest in the appeal, that person may, “within 15 days following receipt of actual knowledge of the appeal but no later than the date the appeals officer issues an order, file a written request to provide information or to appeal before the appeals officer or to file information in support of the requester’s or agency’s position.” Id. § 67.1101(c)(1). The appeals officer may grant the request if no hearing has been held, no order has been issued, and the appeals officer believes the information will be “probative.” Id. § 67.1101(c)(2). Copies of the written request shall be sent to the requester and agency. Id. § 67.1101(c)(3).

Prior to issuing the final determination, the appeals officer may, but is not required to, conduct a hearing. Id. § 67.1102(a)(2). The decision to hold a hearing “is not appealable.” Id. If a hearing is held, Pennsylvania rules governing administrative practice and procedure (1 Pa. Code Pt. II) shall apply; if a hearing is not held, those rules do not apply “except to the extent that the agency has adopted these chapters in its regulations or rules under this subsection.” Id. § 67.1102(b)(1)-(2).

The appeals officer may admit into evidence testimony, evidence and documents that the appeals officer believes is reasonably probative and relevant, and may limit the nature and extent of evidence found to be cumulative. Id. § 67.1102(a)(2). The Office of Open Records, a judicial agency, the Attorney General, Auditor General, State Treasurer or district attorney may adopt procedures relating to appeals. Id. § 67.1102(b). The Office of Open Records has not adopted formal regulations implementing the Law. The Office of Open Records maintains procedural guidelines on its website. https://www.openrecords.pa.gov/Appeals/ProceduralGuidelines.cfm.

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6. Subsequent remedies

A dissatisfied requester or agency may file an appeal with the Commonwealth Court. 65 Pa. C.S.A. § 67.1301(a). If an appeal is filed, the agency, the requester and the Office of Open Records or designated appeals officer shall be served with notice and shall have an opportunity to respond. Id. § 67.1303(a).

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

A requester or agency may file an appeal of a final determination by the Office of Open Records. 65 Pa. C.S.A. § 67.1301(a). In addition, The Commonwealth Court has held that appeals filed by third parties that participated before the Office of Open Records proceeding are appropriate under the Law. Baron v. Dep’t of Human Servs., 169 A.3d 1268 (Pa. Commw. Ct. 2017); Pa. Dep’t of Educ. v. Bagwell, 131 A.3d 638 (Pa. Commw. Ct. 2016); W. Chester Univ. of Pa. v. Schackner, 124 A.3d 382 (Pa. Commw. Ct. 2015). Filing a petition for review in either Commonwealth Court or a Court of Common Pleas automatically stays the release of the requested government records until a decision is rendered by the court. 65 Pa. C.S.A. §§ 67.1301(b), 67.1302(b). The Office of Open Records is not a party and should not be named in the lawsuit. But see Pa. State Educ. Ass’n ex rel. Wilson v. Dep’t of Cmty. & Econ. Dev., 50 A.3d 1263 (Pa. 2012) (OOR was an indispensable party to the lawsuit).

The Law remains silent on the issue of whether it is possible to bring a declaratory judgment action seeking a ruling that certain documents are or are not public records. In a case brought under the old act, the Commonwealth Court permitted the successful bidder on a government contract to bring a declaratory judgment action (in the form of a petition for review) for a declaration that certain documents not be produced by DOT to a competitor under the Act. Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995).

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2. Priority

The Law does not contain a specific provision enabling expedited consideration.

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3. Pro se

The Law does not prohibit pro se suits. However, the complexity of the public records determination and the interplay of the various statutes make legal representation advisable.

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4. Issues the court will address

The Law provides that the Commonwealth Court and Courts of Common Pleas shall render decisions that contain findings of fact and conclusions of law based upon the evidence as a whole. 65 Pa. C.S.A. §§ 67.1301(a), 1302(a). The court will independently review the Office of Open Record’s determination and may substitute its own findings of fact for that of the Office of Open Records. Bowling v. Office of Open Records, 75 A.3d 453 (Pa. 2013).

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a. Denial

An agency must set forth a specific reason for denying a request and cannot assert new grounds for denial on appeal.  See, e.g., Signature Info. Sols., LLC v. Aston Twp., 995 A.2d 510, 512 (Pa. Commw. Ct. 2010).

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b. Fees for records

Yes.

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c. Delays

A delay in providing a response to a request is a deemed denial under the Law and may be appealed.

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d. Patterns for future access (declaratory judgment)

Yes.

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5. Pleading format

The Law states the requester may “file a petition for review or other document as might be required by rule of court;” 65 Pa. C.S.A. §§ 67.1301(a), 1302(a).

For appeals involving Commonwealth agencies that are filed in Commonwealth Court, the proper format is a petition for review pursuant to Pa. R.A.P. 1501. See Nanayakkara v. Casella, 681 A.2d 857 (Pa. Commw. Ct. 1996) (noting, under the old act, that appeal from a Commonwealth agency “should have been brought as a petition for review in our appellate jurisdiction under 42 Pa. C.S.A. § 763(a)(1)”). A petition for review of the OOR final decision must be filed in the Commonwealth Court within 30 days of the mailing date of the final determination of the appeals officer, including a deemed denial date. 65 Pa. C.S.A. § 67.1301(a).

For appeals filed in the local court of common pleas, counsel should consult the local court rules for guidance. For example, in Philadelphia County, a Right to Know Law appeal from a Philadelphia agency is commenced by filing a short notice of appeal that does little more than identify the agency decision being appealed.

Some Pennsylvania decisions applying the old act may be instructive. In Knopsnider v. Derry Township Board of Supervisors, 725 A.2d 245, 247 (Pa. Commw. Ct. 1999), the Commonwealth Court noted that “[w]e have been unable to ascertain what is specifically required to be pled in a statutory appeal, if anything.” The court concluded that “fact pleading is not required; but at the very most, all that an appellant must plead is that an appeal is being taken and the reasons for the appeal in order to put the governmental entity on notice of why an appeal is being taken.” Id.

Because the Pennsylvania Rules of Civil Procedure are inapplicable, the agency cannot challenge the appeal by filing what are known in Pennsylvania as preliminary objections (i.e., motion to dismiss). Weiss v. Williamsport Area Sch. Dist., 872 A.2d 269 (Pa. Commw. Ct. 2005) (but affirming grant of preliminary objections “in the interest of judicial economy”); Knopsnider, 725 A.2d at 245. Nor is discovery pursuant to the Pennsylvania Rules of Civil Procedure permitted in Right to Know Law appeals. See Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993); Shultz v. Bd. of Supervisors of Jackson Twp., 505 A.2d 1127 (Pa. Commw. Ct. 1986).

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6. Time limit for filing suit

An appeal must be filed “within 30 days of the mailing date of the final determination of the appeals officer” for the Commonwealth, legislative, judicial or local agency.

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7. What court?

The Commonwealth Court has jurisdiction over appeals from Commonwealth, legislative and judicial agencies. 65 Pa. C.S.A. § 1301(a); Pa. State Educ. Ass’n v. Pa. Dep’t of Cmty. & Econ. Dev., 4 A.3d 1156 (Pa. Commw. Ct. 2010) (holding the Commonwealth Court does not have original jurisdiction over disputes over records held by local school districts). The applicable Court of Common Pleas has jurisdiction over appeals from local agencies. 65 Pa. C.S.A. § 67.1302(a).

Note:  A court reviewing an appeal from an OOR hearing officer may independently review all of the following: the request for public records, the agency’s response, the appeal, the hearing transcript, if any, the final written determination of the appeals officer, a stipulation of the parties, the documents at issue in camera, and any supplementation of the record through hearing or remand.  Bowling v. Office of Open Records, 990 A.2d 813, 818 (Pa. Commw. Ct. 2010) (“[A] reviewing court, in its appellate jurisdiction, independently reviews the OOR’s orders and may substitute its own findings of fact for that of the agency.”).

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8. Burden of proof

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9. Judicial remedies available

The reviewing court may affirm or reverse the agency’s decision and, in certain situations discussed below, award reasonable attorneys’ fees and costs.

The Law spells out what the court must include in its decision: “The decision of the court shall contain findings of fact and conclusions of law based upon the evidence as a whole. The decision shall clearly and concisely explain the rationale for the decision.” 65 Pa. C.S.A. §§ 67.1301(1), 1302(a).

The Law defines the record on appeal: “The record before a court shall consist of the request, the agency’s response, the appeal filed under section 1101, the hearing transcript, if any, and the final written determination of the appeals officer.” Id. § 67.1303(b).

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10. Litigation expenses

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a. Attorney fees

The Law provides for the possibility that attorneys’ fees and costs may be awarded to the prevailing party.

“If a court reverses the final determination of the appeals officer or grants access to a record after a request for access was deemed denied, the court may award reasonable attorneys’ fees and costs of litigation or an appropriate portion thereof to a requester if the court finds either of the following:

  1. the agency receiving the original request 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 the law.”

65 Pa. C.S.A. § 67.1304(a)(1)(2).

See, e.g., Sherry v. Radnor Twp. Sch. Dist., No. 07-08995 (Delaware Cty. C.P. Ct., June 30, 2008) (ordering the school district to pay nearly $30,000 in costs and attorneys’ fees to the requester for “willfully or with wanton disregard” denying access); but see Pa. State Troopers Assoc. v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2013) (citing Hearst Television, Inc. v. Norris, 8 A.3d 420 (Pa. Commw. Ct. 2010) (denying costs and attorneys’ fees to the requester for failure to show that the intervening party objecting disclosure did so in bad faith, arbitrarily, or to vex the request or requester).

 

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b. Court and litigation costs

The court may also award fees and costs to an agency or requester as a “sanction for frivolous requests or appeals.” The Law states: “The court may award reasonable attorneys’ fees and costs of litigation or an appropriate portion thereof to the agency or the requester if the court finds that the legal challenge under this chapter was frivolous.” 65 Pa. C.S.A. §§ 67.1304(a)(1)(2), 1304(b).

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11. Fines

The Law does not preclude fines: “Nothing in this act shall prohibit a court from imposing penalties and costs in accordance with applicable rules of court.” 65 Pa. C.S.A. § 67.1304(c). Bad faith may constitute grounds for an award of attorneys’ fees under 65 Pa. Stat. Ann. § 67.1304(a) or for the imposition of civil penalties under 65 Pa. Stat. Ann. § 67.1305. Uniontown Newspapers, Inc. v. Pa. Dep’t of Corr., 151 A.3d 1196 (Pa. Commw. Ct. 2016). However, evidence of bad faith is required. Barkeyville Borough v. Stearns, 35 A.3d 91 (Pa. Commw. Ct. 2016).

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12. Other penalties

The Law provides for a civil penalty in two situations:

  1. A civil penalty of “not more than $1,500” if an agency denied access to a public record “in bad faith.” 65 Pa. C.S.A. 67.1305(a).
  2. A civil penalty of “not more than $500 per day until the public records are provided” if the agency or public official “does not promptly comply with a court order.” § 67.1305(b).

The Law does not explicitly provide for criminal liability. Yet it provides for immunity from civil and criminal liability in certain circumstances.

It states that “[e]xcept as provided for in sections 1304 and 1305 and other statutes governing the release of records, no agency, public official or public employee shall be liable for civil damages or penalties resulting from compliance or failure to comply with this act.” Id. § 67.1306(a).

Moreover, “[n]o agency, public official or public employees shall be liable for civil or criminal damages or penalties under this act for complying with any written public record retention and disposition schedule.” Id. § 67.1306(b).

Other statutory provisions penalize a failure to disclose. See, e.g., 25 Pa. C.S.A. § 3503-04 (misdemeanor, punishable by fine or imprisonment, to refuse to permit inspection of election records).

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13. Settlement, pros and cons

For a number of reasons, including the lack of an expedited hearing mechanism, viable settlements should be pursued.

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F. Appealing initial court decisions

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1. Appeal routes

Access decisions of the Common Pleas Courts may be appealed to the Commonwealth Court, 42 Pa. C.S.A. § 762, within 30 days of the entry of the order appealed from Pa.R.A.P. 903(a). Appeal from the Commonwealth Court to the Supreme Court is discretionary. 42 Pa. C.S.A. § 724(a); Pa.R.A.P. 1113.

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2. Time limits for filing appeals

30 days.

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3. Contact of interested amici

Anyone “interested” in the questions involved in any appeal may file a brief amicus curiae without leave; oral argument by an amicus is permitted rarely and only at the court’s direction. Pa.R.A.P. 531.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

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G. Addressing government suits against disclosure

The Law does not provide a mechanism where an agency may challenge disclosure of records that are responsive under the Law. But agencies have filed lawsuits to prevent the disclosure of records. For example, the Commonwealth has sought to enjoin the disclosure of autopsy records on the theory that disclosure would hinder an ongoing investigation. In re Buchanan, 823 A.2d 146 (Pa. Super. Ct. 2003), aff’d 880 A.2d 568 (Pa. 2005); see also Juniata Valley Sch. Dist. v. Wargo, 797 A.2d 428 (Pa. Commw. Ct. 2002).

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

The Sunshine Act provides that covered meetings must be open to the “public.” 65 Pa. C.S.A. § 704. It also allows “any person” to “has the right to raise an objection at any time to a perceived violation.” 65 Pa. C.S.A. § 710.1(c). On the other hand, the declaration of intent speaks in terms of the right of the Commonwealth’s “citizens” to attend meetings. 65 Pa. C.S.A. § 702(b).

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B. What governments are subject to the law?

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1. State

Yes.

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2. County

Yes.

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3. Local or municipal

Yes.

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C. What bodies are covered by the law?

The Sunshine Act generally covers all legislative and executive agencies at the state, county and municipal levels. 65 Pa. C.S.A. § 703. Specifically, it covers the body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business of all the following: the General Assembly; the executive branch of the government, including the Governor’s Cabinet when meeting on official policymaking business; any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth; or any state, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all state-aided colleges and universities, the councils of trustees of all state-owned colleges and universities, the boards of trustees of all state-related universities and all community colleges; or similar organizations created by or pursuant to a statute which declares in substance that the organization performs, or has for its purpose the performance of, any governmental function and through the joint action of its members exercises governmental authority and takes official action. Id.

The term does not include a caucus nor a meeting of an ethics committee created under rules of the Senate or House of Representatives. 65 Pa. C.S.A. § 712.

The term was recently amended to also include the governing board of any nonprofit corporation which by a mutually binding legal written agreement with a community college or State-aided, State-owned or State-related institution of higher education is granted legally enforceable supervisory and advisory powers regarding the degree programs of the institution of higher education. 65 Pa. C.S.A. § 703.

See, e.g., Soc’y Hill Civic Ass’n v. Phila. Bd. of License & Inspection Review, 905 A.2d 579 (Pa. Commw. Ct. 2006) (City Board of License and Inspection Review was created as a quasi-judicial body that performs fact-finding and deliberative functions and thus is subject to the Sunshine Act).

Note:  The new Right to Know Law broadened the reach of the act to all organizations who contract to perform any governmental function.  See, e.g., SWB Yankees LLC v. Gretchen Wintermantel, 999 A.2d 672 (Pa. Commw. Ct. 2010) (“an authority clearly created for the benefit of the people of the Commonwealth, and for the increase of their commerce and prosperity . . . puts a third party in the same position as an agency for purposes of the RTKL”) allocatur denied, 610 Pa. 291 (Pa. 2011); E. Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 49 (Pa. Commw. Ct. 2010).

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1. Executive branch agencies

The Act covers all executive branch agencies. 65 Pa. C.S.A. § 703.

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a. What officials are covered?

All officials are covered so long as they are acting as the “quorum” of an agency. 65 Pa. C.S.A. § 703. However, neither the Governor nor a commission appointed by the Governor to advise him on the selection of trial court judges was deemed an “agency” under the Act. See Ristau v. Casey, 647 A.2d 642 (Pa. Commw. Ct. 1994).

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b. Are certain executive functions covered?

All functions are open so long as they constitute “deliberation” or “official action.” 65 Pa. Stat. § 704.

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c. Are only certain agencies subject to the act?

All entities deemed “agencies” are subject to the Sunshine Act. 65 Pa. C.S.A. § 703.

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2. Legislative bodies

The statute also specifically covers the following meetings of the General Assembly: meetings of committees where bills are considered; all hearings where testimony is taken; and all sessions of the Senate and House of Representatives. 65 Pa. C.S.A. § 712. Caucuses and ethics committee meetings are excluded. Id.

Several cases have explained the extent to which the law applies to legislative bodies. In Pa. Legislative Correspondents’ Ass’n v. Senate of Pa., 537 A.2d 96, 368 (Pa. Commw. Ct. 1988), aff’d, 551 A.2d 211 (Pa. 1988), a group of journalists alleged that the Pennsylvania legislature violated the Sunshine Act when a group of legislators met informally to discuss the state budget before a House-Senate conference committee was appointed to reach agreement on a budget bill. The court held that the complaint did not state a cause of action under the Act: “Unofficial gatherings of unnamed legislators for whatever purpose do not constitute ‘meetings’ subject to the provisions of the Sunshine Act.” Id. at 372.

In League of Women Voters v. Commonwealth, 683 A.2d 685 (Pa. Commw. Ct. 1996) the court held that a conference committee’s preparation of an extensive report on the 1996-97 General Appropriations Act prior to first public meeting of the committee was not a violation of Sunshine Act, since: 1) as a general matter, preparation of reports are not covered by the Sunshine Act; and 2) any violation was cured by the committee’s open meeting on the issue. In addition, the court held that even if a violation was stated, it would not enjoin the GAA’s operation because of the potential harm that an injunction would bring to the Commonwealth’s citizens.

Finally, in Pa. AFL-CIO v. Commonwealth Rule 10.2.1.f., 683 A.2d 691 (Pa. Commw. Ct. 1996), a group of plaintiffs moved to enjoin the newly enacted Workers’ Compensation Act, arguing that the procedure used by the House Rules Committee to report the bill to the floor violated the Sunshine Act. Specifically, the plaintiffs alleged that the Rules Committee violated the statute by convening a meeting prior to its scheduled time, and prior to the arrival of members of the minority party, the public, and the media. Id. The court held that these allegations were insufficient to establish a Sunshine Act violation, as there was no allegation that improper notice of the meeting was given and no charge that the meeting was not “open.” Id.

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3. Courts

The Act does not cover the judiciary. In In re 42 PA. C.S. § 1703, 394 A.2d 444 (Pa. 1978), involving an advisory opinion in the form of a letter to the executive and legislative branches, the Pennsylvania Supreme Court ruled that a statute subjecting judicial rulemaking procedures to a prior sunshine law violated the separation of powers provisions in the Pennsylvania Constitution.

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4. Nongovernmental bodies receiving public funds or benefits

The definition of agency is certainly broad enough to include such groups, if they perform an essential governmental function and are authorized to take “official action” or “render advice” on agency business. 65 Pa. C.S.A. § 703. Of course, if the legislation says that a particular body is an agency under the Law, then the body must comply with the Act’s requirements. See Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (A private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation stated that it was deemed an agency under the Sunshine Act.) (interpreting 71 Pa. C.S.A. § 632(d)).  Under the new Right to Know Law, performance of a governmental function has been broadened to include such non-essential functions as operation of a public baseball stadium.  See, e.g., SWB Yankees LLC v. Gretchen Wintermantel, 999 A.2d 672 (Pa. Commw. Ct. 2010).

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5. Nongovernmental groups whose members include governmental officials

No cases under the Act speak to this, although the definition of “agency” is arguably broad enough to cover such an organization if it performs “an essential governmental function.”

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6. Multi-state or regional bodies

No cases under the Act speak to these, but regional or multi-state bodies are arguably encompassed by the definition of “agency.” If the enabling legislation deems the body an “agency,” then the Sunshine Act applies. For example, in Scott v. Shapiro, 339 A.2d 597 (Pa. Commw. Ct. 1975), it was not disputed that the Southeastern Pennsylvania Transportation Authority (SEPTA), defined as an agency under Pennsylvania law, was an agency under the Sunshine Act.

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7. Advisory boards and commissions, quasi-governmental entities

Such entities are generally not agencies subject to the Sunshine Act. In FOP Lodge No. 5. v. City of Phila., 500 A.2d 900 (Pa. Commw. Ct. 1985), appeal dismissed, 518 A.2d 263 (Pa. 1986), the court held that the MOVE Commission, a temporary advisory body appointed by the mayor with a limited purpose, was not an “agency” under the predecessor to the Sunshine Act. One court of common pleas has stated that the Task Force to Address Residents’ Concerns of the Solid Waste Disposal Facility, whose purpose was to address concerns regarding a local incinerator, was an “agency” under the Sunshine Act upon passage of the resolution creating the task force. York Newspapers, Inc. v. Springettsbury Twp., (York Ct. C.P., August 15, 1990) (unpublished opinion).

In Ristau v. Casey, 647 A.2d 642 (Pa. Commw. Ct. 1994), the Commonwealth Court held that the Governor’s Trial Court Nominating Commission was not an “agency” because: 1) the Commission was not created by statute; 2) it neither performed nor was created to perform an “essential” governmental function; and 3) the Commission itself exercised no governmental authority, but merely advised the governor on how to exercise his constitutional authority to appoint, subject to Senate approval. Id. at 646-47. Earlier, the Commonwealth’s Office of General Counsel had issued a policy statement concluding that the Act applies to ad hoc advisory commissions appointed by the executive branch, such as the Local Tax Reform Commissions, only when they render advice that affects substantive or procedural rights of the public or when they are legally necessary for the exercise of an essential governmental function. See 4 Pa. Code § 1.42 (2001).

In Patriot-News Co. v. Empowerment Team, 763 A.2d 539 (Pa. Commw. Ct. 2000), the court addressed whether the Sunshine Act applied to “empowerment teams” created by two school districts for the purpose of creating “school district improvement plans” and recommending them to the Pennsylvania Department of Education and the school districts for approval and implementation. The court ruled that such teams were “agencies” under the Sunshine Act because they were committees authorized by school districts to render advice on matters of agency business, as set forth in the Act’s definition of “agency.” Id.; see also Hacker v. Colonial League, 56 D. & C. 4th 281 (Lehigh Cty. Ct. C.P. 2001) (holding that an interscholastic league was acting as a de facto school board and came within the definition of “agency” under the Sunshine Act).

In Mazur v. Washington Cty. Redevelopment Auth., 900 A.2d 1024 (Pa. Commw. Ct. 2006), the court held that a “tax increment financing (TIF) committee,” composed of members of local taxing authorities and the redevelopment authority, was not an agency required to hold open meetings under the Sunshine Act given that the TIF Act (1) did not require designated representatives to act jointly; (2) the committee did not exercise any governmental authority or take official action; and (3) committee members, as a group, did not render advice to the redevelopment or taxing authorities.

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8. Other bodies to which governmental or public functions are delegated

A committee that was not created by a vote of the Board of Trustees was not a “committee authorized by the body” and therefore the committee’s meetings were not open to the public. Lee Publ’ns, Inc. v. Dickinson Sch. of Law, 848 A.2d 178, 185 (Pa. Commw. Ct. 2004).

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9. Appointed as well as elected bodies

The Act covers commissions and educational institutions whether they are owned by the state or merely receive state funding pursuant to a statute making them state-related. 65 Pa. C.S.A. § 703.

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D. What constitutes a meeting subject to the law

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1. Number that must be present

A meeting is defined as “[a]ny prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” 65 Pa. C.S.A. § 703. In determining whether a quorum was present, the length of time an agency member spent at the “meeting” or whether he participated in the questioning is not relevant. Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116, 1120 (Pa. Commw. Ct. 1989). Agency members need not be physically present. In Babac v. Pennsylvania Milk Marketing Board, 613 A.2d 551 (Pa. 1992), the court held that members of an agency who participate in a public meeting by speakerphone count toward a quorum.

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a. Must a minimum number be present to constitute a "meeting"?

The consultation of as few as two individuals may create a “meeting” if two individuals create a quorum. See Thomas v. Twp. of Cherry, 722 A.2d 1150, 1153 (Pa. Commw. Ct. 1999) (stating “that a ‘meeting’ took place as contemplated by the Sunshine Act when the two [board] members got together albeit without notice to the third”).

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b. What effect does absence of a quorum have?

When those present at a meeting are of an insufficient number to constitute a quorum, there is no requirement that the meeting be open to the public. See Muncy Creek Twp. Citizens Comm. v. Shipman, 573 A.2d 662 (Pa. Commw. Ct. 1990). See also Pa. Legislative Correspondents’ Ass’n v. The Senate of Pa., 537 A.2d 96, 98 (Pa. Commw. Ct. 1988) (“Unofficial gatherings of unnamed legislators for whatever purpose do not constitute ‘meetings’ subject to the provisions of the Sunshine Act.”). When a city council appointed a committee to review emergency ambulance services, the court held that meetings of the committee were not subject to the provisions of the Sunshine Act, since no committee members were also city council members. Gowombeck v. City of Reading, 48 Pa. D.&C.3d 324 (Berks Cty. Ct. C.P. 1988). See also Babac v. Pa. Milk Mktg. Bd., 613 A.2d 551 (Pa. 1992) (stating that a “quorum of members can consist of members not physically present at the meeting but who nonetheless participate in the meeting and that such quorum can take official action . . .”).

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2. Nature of business subject to the law

All “official action” and “deliberation” by a quorum of an agency must take place at a public meeting, unless one of the Act’s exceptions applies. 65 Pa. C.S.A. § 704. “Official action” is defined as follows:

·      recommendations made by an agency pursuant to statute, ordinance or executive order;

·      the establishment of policy by an agency;

·      the decisions on agency business made by an agency; or

·      the vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.

65 Pa. C.S.A. § 703.

What constitutes “official action.” Courts have construed the term “official action” to accommodate a variety of different meanings depending on the context of the situation. See, e.g., Patriot-News Co. v. Empowerment Team of the Harrisburg Sch. Dist., 763 A.2d 539, 545 (Pa. Commw. Ct. 2000) (holding that “empowerment teams” created by school districts engaged in “official action” and deliberation because they were, by statute, acting as “de facto school boards” and could make recommendations that the school boards were “powerless” to alter); Preston v. Saucon Valley Sch. Dist., 666 A.2d 1120 (Pa. Commw. Ct. 1995) (stating that “the term ‘official action’ includes, inter alia, decisions concerning an agency’s business made by an agency, and specifically includes decisions of a school board that commit the board to a particular course of conduct, such as hiring a superintendent”); but see Belitskus v. Hamlin Twp., 764 A.2d 669 (Pa. Commw. Ct. 2000) (holding that township supervisors’ conduct in setting up a meeting with a water association did not constitute official action); Morning Call v. Bd. of Sch. Dirs., 642 A.2d 619 (Pa. Commw. Ct. 1994) (holding that action taken by the Board in executive session reducing the number of candidates for superintendent from five to three constituted “merely deliberations or discussions rather than official action”); Common Cause/Pennsylvania v. Itkin, 635 A.2d 1113 (Pa. Commw. Ct. 1993) (stating that the revision of the expense guidelines in accord with a prior resolution did not constitute “official action” for purposes of the Sunshine Act, “but was, instead, a ministerial action by which the Rules Committee executed a resolution of the House of Representatives”).

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a. "Information gathering" and "fact-finding" sessions

Whether “information” or “fact-gathering” sessions must be open is an unresolved question. Arguably, fact-gathering is encompassed within “the preparation . . . of law, policy or regulations.” See, e.g., Times Leader v. Dallas Sch. Dist., 49 D. & C. 3d 329, 332 (Luzeme Cty. Ct. C.P. 1988) (finding that an “informational” session of a school board is not a “conference” and therefore cannot be closed under that exception to the Act); but see Taylor v. Borough Council Emmaus, 721 A.2d 388 (Pa. Commw. Ct. 1998) (holding that the taking of witness testimony qualifies as neither “official action” nor “deliberation” as those terms are used in the Act). However, the definition of “deliberation” in the Act is vague enough to allow an argument that it excepts the early stages of legislating or policymaking. Other decisions have attempted to draw a distinction between “official” action or deliberations and pre-meeting discussions not covered by the Act. See, e.g., Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116 (Pa. Commw. Ct. 1989) (holding that there was no “official action” taken when no votes, decisions, or policy recommendations were produced); Sunset Dev., Inc. v. Bd. of Supervisors of E. Pikeland Twp., 600 A.2d 641 (Pa. Commw. Ct. 1991) (where the court noted that the Board of Supervisors did not violate the Sunshine Act because the Board’s written decision did not involve official action or deliberation; only oral comments would have required an open meeting, and such oral comments were not the subject of the appeal.); see also Piecknick v. S. Strabane Twp. Zoning Hearing Bd., 607 A.2d 829 (Pa. Commw. Ct. 1992).

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b. Deliberation toward decisions

“Deliberation” is “the discussion of agency business held for the purpose of making a decision.” Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116, 1118 (Pa. Commw. Ct. 1989) (holding that private conference among three members of township board of supervisors concerning amendment to zoning ordinance was “deliberation” on agency business, even though no official action was taken). One court has distinguished between “deliberation,” which must be open, and “discussion,” which need not be open. See Conners v. W. Greene Sch. Dist., 569 A.2d 978 (Pa. Commw. Ct. 1989), appeal denied, 581 A.2d 574 (Pa. 1990) (finding that apparent discussion among some school board members during recess in a public budget proposal meeting did not constitute a violation of the Sunshine Act since there is a “substantial difference between discussion and deliberation”). “Agency business” is the framing, preparation, making, or enactment of laws, policy or regulations; the creation of liability by contract or otherwise; or the adjudication of rights, duties and responsibilities, but not including administrative action.

In Ackerman v. Upper Mt. Bethel Twp., supra, the court found that an ad hoc meeting on a proposed zoning amendment concerned “agency business.” The Task Force to Address Residents’ Concerns of the Solid Waste Disposal Facility in York Newspapers, Inc. v. Springettsbury Township, (York Ct. C.P., August 15, 1990) (unpublished opinion) did not engage in “deliberations” since it merely made nonbinding recommendations to the Township supervisors and it was the supervisors who would then formulate policy in open meetings. In League of Women Voters v. Pennsylvania, 683 A.2d 685 (Pa. Commw. Ct. 1996), the court held that “the mere preparation of a written report prior to the public meeting” do not qualify as “deliberations” for purposes of bringing a claim for violation of the Sunshine Act.

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3. Electronic meetings

The participation of some members by speakerphone during agency deliberations does not violate the Act so long as the meeting itself is open to the public. See Babac v. Pa. Milk Mktg. Bd., 613 A.2d 551 (Pa. 1992). However, the Sunshine Act’s requirement that votes be “publicly cast” precludes the use of paper ballots secretly exchanged among school board members until a decision is reached. Pub. Opinion v. Chambersburg Area Sch. Dist., 654 A.2d 284 (Pa. Commw. Ct. 1995) (stating the requirement that a vote be “publicly cast” meant that the vote “must be one that informs the public of an elected official’s position on a particular matter of business”).

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a. Conference calls and video/Internet conferencing

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b. E-mail

Non-public deliberations by e-mail would likely violate the Act unless the deliberations met an exemption. See Babac v. Pa. Milk Mktg. Bd., 613 A.2d 551 (Pa. 1992). On the other hand, pre-deliberation communications or “discussions” probably would be lawful. Thus, a court would have to be convinced that “deliberations” — as opposed to mere “discussions” or “drafting” — actually occurred before it could find a violation.

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c. Text messages

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d. Instant messaging

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e. Social media and online discussion boards

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E. Categories of meetings subject to the law

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1. Regular meetings

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a. Definition

A regular meeting is any agency meeting that is not a special or emergency meeting.

Under 65 Pa. C.S.A. § 703, a meeting is defined as: “Any prearranged gathering of an agency which is attended or participated in by a quorum of the members of an agency held for the purpose of deliberating agency business or taking official action.” Id.

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b. Notice

An agency must give three days’ notice of its first regular meeting of the year, and notice of the schedule of its remaining regular meetings in time to allow it to be published or circulated before the date of the meetings. Twenty-four hours’ notice must be given for rescheduled regular meetings. 65 Pa. C.S.A. § 709.

There is no requirement that an agency provide individualized written notice to a person whose business with an agency will be conducted at a particular meeting. See Sheetz, Inc. v. Phoenixville Borough Council, 804 A.2d 113 (Pa. Commw. Ct. 2002).

Notice requires:

Publication of place, date and time in a newspaper of general circulation that is either published in the appropriate political subdivision or has a local circulation equal to or greater than any newspaper published there. 65 Pa. C.S.A. § 703(l)(i). See also Devich v. Borough of Braddock, 602 A.2d 399 (Pa. Commw. Ct. 1992) (holding that the advertisement of a special meeting posted in the Pittsburgh Press satisfied the public notice requirements of the Act). In dicta, one court stated that governmental agencies are required to post notices of meetings in a section of the newspaper captioned “Legal Notices” which would provide notice to the public as well as other newspapers and organizations. See Higgins v. Pub. Sch. Emps.’ Retirement Sys., 736 A.2d 745, 754 n.19 (Pa. Commw. Ct. 1999).

Prominently posting the place, date and time at the agency office. 65 Pa. C.S.A. § 703(l)(i). See In re Condemnation by West Chester Area Sch. Dist., 50 Pa. D & C 4th 449 (Chester Cty. Ct. C.P. 2001) (holding that the agency failed to adduce evidence that there was any posting of the meeting).

Sending copies of the notice on request to any interested party that has furnished the agency with a stamped, self-addressed envelope. 65 Pa. C.S.A. § 709(c).

For a recessed or reconvened meeting, the agency need only take the second and third steps. 65 Pa. C.S.A. § 703.

There is no agenda requirement. See E. Rockhill Twp. v. Pub. Utility Comm’n, 540 A.2d 600 (Pa. Commw. Ct. 1988). “The Act does not require that the notice to be published in a newspaper of general circulation contain a statement of the purpose of the meeting or a description of the business to be conducted at the meeting.” Devich, 602 A.2d at 401.

Action taken in a meeting that does not comply with notice requirements may be declared void by a court. See 65 Pa. C.S.A. § 713; see also In re Condemnation, 50 Pa. D. & C. 4th 449; Bensalem Twp. Sch. Dist. v. Gigliotti Corp., 415 A.2d 123 (Pa. Commw. Ct. 1980) (prior statute).

Pennsylvania courts have observed that “adequate notice to the public at large is an integral part of the public meeting concept; a meeting cannot be deemed to be public merely because its doors are open to the public if the public is not properly informed of its time and place.” Consumer Educ. and Protective Ass’n v. Nolan, 368 A.2d 675 n.4 (Pa. 1977). Thus, courts will invalidate and void action taken at meetings lacking proper notice, rejecting arguments that even though notice was not properly given, the failure was harmless because the parties to the appeal actually attended or knew about the meeting. See, e.g., In re Condemnation, 50 Pa. D. & C. 4th 449; Eaton v. Zoning Hearing Bd. of the Borough of Wellsboro, 471 A.2d 919 (Pa. Commw. Ct. 1984). That is because the notice requirement’s purpose is to notify the public generally, not just the parties to a Sunshine Act appeal. Id. at 465. “Of course, a ‘public agency may cure the effect of a meeting defective as to notice by ratifying the action at a subsequent meeting properly had.’” Id. at 468 (quoting Coder v. State Bd. of Chiropractic Examiners, 471 A.2d 563 (Pa. Commw. Ct. 1984)).

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c. Minutes

Minutes are required and must contain the date, time and place of the meeting; the names of members present; the substance of all official actions and a record by individual member of roll call votes; and the names of all citizens who appeared officially and the subject(s) of their testimony. 65 Pa. C.S.A. § 706. Additionally, the Act requires that the votes of each member who actually votes on any “resolution rule, order, regulation, ordinance or the setting of official policy” be publicly cast and that, if a roll call vote is taken, it is recorded. 65 Pa. C.S.A. § 705. The requirement of written minutes is not satisfied by an audio tape recording of the meeting. See Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 463 (Pa. Commw. Ct. 1997).

Minutes are public records. See 65 Pa. C.S.A. § 706.

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2. Special or emergency meetings

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a. Definition

A special meeting is a “meeting scheduled by an agency after the agency’s regular schedule of meetings has been established.” 65 Pa. C.S.A. §  703. An “emergency” meeting is a “meeting called for the purpose of dealing with a real or potential emergency involving a clear and present danger to life or property.” Id. An emergency meeting requires a true emergency. See, e.g., In re Petition of Bd. of Dirs. of Hazleton Area Sch. Dist., 527 A.2d 1091, 1093, n.3 (Pa. Commw. Ct. 1987) (stating that a school district’s “adoption or failure to adopt a [redistricting] plan did not in any way pose a ‘clear and present danger to life or property.’”).

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b. Notice requirements

Twenty-four hours of notice is required for a special meeting or a rescheduled regular or special meeting. 65 Pa. C.S.A. § 709(a). Where twenty-four hours of notice is required, it is insufficient if notice is given in a newspaper that is published on the same day as the scheduled meeting; it must be done in a paper published “at least twenty four hours before the scheduled meeting.” See In re Condemnation by W. Chester Area Sch. Dist., 50 Pa. D. & C. 4th 449, 456 (Chester Cty. Ct. C.P. 2001). Several courts have invalidated an action purported to be taken at a special meeting when the agency failed to provide the required notice. See In re Condemnation by W. Chester, 50 Pa. D. & C. 4th 449; Martin v. Borough of Wilkinsburg, 563 A.2d 958 (Pa. Commw. Ct. 1989).

No notice is required for an emergency meeting.

For special meetings, notice requirements are the same as for regular meetings. See Devich v. Borough of Braddock, 602 A.2d 399 (Pa. Commw. Ct. 1992) (stating that notice that a special meeting was to be held was sufficient; Borough was not required to specify that a hearing was to follow regarding whether to declare the seats of two council members vacant).

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c. Minutes

As with regular meetings, the minutes of special meetings are public records.  Even those portions of the minutes of a private foundation which pertain to its governmental function constitute a public record under the new Act.  See E. Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Commw. Ct. 2010).

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3. Closed meetings or executive sessions

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a. Definition

An executive session is a “meeting from which the public is excluded, although the agency may admit those persons necessary to carry out the purpose of the meeting.” 65 Pa. C.S.A. § 703. Discussions at which third parties are present are privileged only for the portions of the meetings at which such third parties are necessary. Kravco Co. v. Valley Forge Ctr. Ass’n, 1992 WL 157755 (E.D. Pa. July 1, 1992). For further discussion of executive sessions, see Section II.A.2.a below (Description of each exemption à Executive sessions).

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b. Notice requirements

The executive session may be held during an open meeting or at the conclusion of an open meeting, or it may be announced for a future time. 65 Pa. C.S.A. § 708(b).

The reason for holding an executive session must be announced at the open meeting occurring “immediately prior or subsequent to the executive session.” 65 Pa. C.S.A. § 708(b). If the session is not announced for a specific future time, the Act requires that agency members receive 24 hours’ notice of the time, date and place of the meeting and the purpose of the executive session. Id.

Beyond the announcement of the session and statement of its purpose, the Act does not require that a notice be “posted” or publicly list specific agenda items or other information.

The reasons given for holding an executive session “must be specific, indicating a real, discrete matter that is best addressed in private.” Reading Eagle Co. v. Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993). This level of specificity is necessary to allow the public “to determine from the reason given whether they are being properly excluded from the session.” Id.

In Reading Eagle, the court entered a permanent injunction that required all subsequent announcements of executive sessions to be given with the necessary specificity. 627 A.2d at 308.

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c. Minutes

By its terms, the Act only requires that minutes be kept of “all open meetings.” 65 Pa. C.S.A. § 706. There are various statutory provisions that require specific agencies and public bodies to keep minutes of all their proceedings and allow public inspection. See, e.g., 32 Pa. Stat. §§ 815.101, 820.1 (Delaware and Susquehanna River Basin Commissions); 53 Pa. Stat. §§ 14759, 25057, 53807 (Board of Adjustment); 53 Pa. Stat. § 55631 (Township Civil Service Commission); 62 Pa. Stat. § 1725 (Board of Claims). These provisions would arguably cover “executive sessions,” although their existence with respect to specific agencies is hit-or-miss.

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d. Requirement to meet in public before closing meeting

The Sunshine Act is ambiguous about whether agencies must meet publicly before closing a meeting and going into an executive session. See 65 Pa. C.S.A. § 708(b). Presumably, when an executive session is announced for a specific future time, no prior public meeting is required. However, although the purpose of an executive session may be announced after the session, section 708 may arguably be read to require some prior public announcement that an executive session will be held. No cases address this issue.

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e. Requirement to state statutory authority for closing meetings before closure

There would appear to be no requirement to explicitly state the legal source for the agency’s authority to go into executive session. However, the announcement of the reason for the session, particularly if given with the requisite specificity, should state the exemption to the Act that the agency relied on before continuing in closed session.

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f. Tape recording requirements

There is no requirement that executive sessions be tape recorded.

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F. Recording/broadcast of meetings

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1. Sound recordings allowed

The Act gives the public the right to use “recording devices” to record the proceedings. 65 Pa. C.S.A. § 711. Meetings of the General Assembly are excepted; the House and Senate may adopt their own rules regarding broadcasting or recording. 65 Pa. C.S.A. § 711(b). Any agency may adopt reasonable rules for the maintenance of order at its meetings, although the rules may not preclude recording. Hain v. Bd. of Dirs. of Reading Sch. Dist., 641 A.2d 661, 663-64 (Pa. Commw. Ct. 1996). In Harman v. Wetzel, 766 F. Supp. 271 (E.D. Pa. 1991), the court determined that any citizen who attends a zoning hearing may record it, and any citizen who makes a statement at the hearing should expect it to be recorded.

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2. Photographic recordings allowed

Recording devices include video cameras. Hain v. Bd. of Sch. Dirs. of Reading Sch. Dist., 641 A.2d 661, 664 (Pa. Commw. Ct. 1994).

Audio broadcast of meeting allowed. The use of a microphone and speaker system to broadcast an agency’s proceedings to a separate facility where the public was provided with overflow seating arrangements does not violate the Act. See Sovich v. Shaugnessy, 705 A.2d 942, 946 (Pa. Commw. Ct. 1998) (stating that Babac interpreted the Sunshine Act to require only the public’s ability to “observe” the open meeting). However, one lower court went so far as to hold that the Act requires meetings to be entirely “open” in the sense that the public is entitled not only to be present and observe the proceedings but also to hear them. See Landscape Products, Inc., v. Zoning Hearing Bd. of East Allen Twp., No. 1999-C-3703, Court of Common Pleas, Northampton County, at 6 (Nov. 23, 1999) (“We conclude that the right of the public to witness deliberation and decision making includes more than the right to be present and watch what is happening.”) (unreported case available at http://www.law.com/pa.html).

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G. Access to meeting materials, reports and agendas

Under Pennsylvania’s Right to Know Law, such records are presumptively accessible.  See 65 Pa. Stat. §§ 67.301-306.

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H. Are there sanctions for noncompliance?

Yes. The Act provides three “sanctions:” (1) the court in its discretion may invalidate the official action taken at the meeting; (2) the participants in the meeting may be fined $100; and (3) attorneys’ fees shall be awarded if the agency’s actions in violation of the Act were willful or with wanton disregard (and if the challenge to the meeting is frivolous, the agency shall be awarded attorneys’ fees and costs). 65 Pa. Stat. §§ 713-714.1.

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Act contains three general and discretionary exceptions to the open meeting requirement: executive sessions, conferences, and certain working sessions. See 65 Pa. C.S.A. §§ 707, 708(c).

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2. Description of each exemption

a. Executive sessions.

Executive sessions can be held for any of the following six purposes:

1. to discuss personnel matters. See Mirror Printing Co., Inc., v. Altoona Area Sch. Bd., 609 A.2d 917 (Pa. Commw. Ct. 1992) (affirming decision that the Sunshine Act did not require disclosure of the basis of a settlement agreement regarding disciplinary action against a teacher that was discussed and negotiated by school board during an executive session but later approved of during an open meeting); see also Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989) (affirming decision that Sunshine Act was satisfied where promotion of police officers, initially decided by majority of commissioners in a private meeting, was later adopted by commissioners at public session).

2. to hold sessions relating to collective bargaining or labor negotiations. In Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990), appeal denied, 593 A.2d 426 (Pa. 1991), the Commonwealth Court reversed two Common Pleas orders involving Lawrence County’s plan to end operations at and sell a nursing home.  The county made its decision with respect to the nursing home in executive session, during stalled collective-bargaining sessions.  The county, however, would eventually adopt the decision to close and sell the nursing home as a resolution during open meetings.  In reversing the Court of Common Pleas, the Commonwealth Court explained that the decision to close and sell the nursing home related to the collective-bargaining negotiation process because it was a matter which affected the interest of the staff at the nursing home so as to obligate the county commissioners to discuss in its negotiations with the staff’s bargaining representative.  Even so, any violation of the Sunshine Act would have been cured by the subsequent ratification of the county’s decision during public meetings.  See also St. Clair Area Sch. Dist. v. Saint Clair Educ. Ass’n, 552 A.2d 1133 (Pa. Commw. Ct. 1988), aff’d, 579 A.2d 879 (Pa. 1990) (affirming decision that school board committed an unfair labor practice by negotiating a collective-bargaining agreement on the courthouse steps in bad faith when the board later failed to carry enough votes to adopt the agreement during a public meeting).

3. to consider the purchase or lease of real property up to the time an option to purchase or lease is obtained or up to the time an agreement to purchase or lease is obtained.

4. to consult with an attorney or professional advisor regarding information or strategy in connection with litigation or with issues on which identifiable complaints are expected to be filed. See Trib Total Media, Inc. v. Highlands Sch. Dist., 3 A.3d 695 (Pa. Commw. Ct. 2010) (reversing decision that owners and representatives of a shopping center were properly admitted to an executive session to discuss a property tax assessment appeal with the school board and the board’s solicitor); see also Keenheel v. Commonwealth, 579 A.2d 1358 (Pa. Commw. Ct. 1990) (denying the petitioner’s cross-motion for summary judgment because, in relevant part, he failed to claim any injury as a result of the Pennsylvania Securities Commission’s Sunshine Act violation of discussing and approving a settlement agreement in executive session).

5. to discuss agency business that is otherwise privileged or protected by law, including matters related to investigations of possible legal violations and quasi-judicial deliberations. See, e.g., Riverwalk Casino, L.P. v. Pa. Gaming Control Bd., 926 A.2d 926 (Pa. 2007) (concluding that Pennsylvania Gaming Control Board’s executive-session discussions about applications for slot machine licenses, before public vote on applications, fell within the exception to the open-meeting requirement for quasi-judicial deliberations); Kennedy v. Upper Milford Twp. Zoning Hearing Bd., 834 A.2d 1104 (Pa. 2003) (reversing Commonwealth Court decision that zoning hearing board, which the Supreme Court defined as a quasi-judicial agency, was not permitted to take a recess to deliberate in private before voting on application concerning the height of a radio-communications tower); see also In re Blystone, 600 A.2d 672 (Pa. Commw. Ct. 1991), appeal denied, 626 A.2d 1159 (Pa. 1993) (rejecting argument that Sunshine Act was violated where commissioners did not, during an open meeting, vote on or adopt charges being investigated by district attorney when deciding to demote borough police chief).

6. for certain educational agencies, to discuss matters of academic admissions or standings.

7. to discuss, plan, or review matters and records necessary for emergency preparedness, public safety, and security of property.

Official action on any of the above discussions must be taken in public. 65 Pa. C.S.A. § 708.

b. Conferences.

“An agency is authorized to participate in a conference which need not be open to the public. Deliberation of agency business may not occur at a conference.”  65 Pa. C.S.A. § 707(b).  Conferences are defined as any “training program or seminar, or any session arranged by State or Federal agencies for local agencies, organized and conducted for the sole purpose of providing information to agency members on matters directly related to their official responsibilities.”  65 Pa. C.S.A. § 703.  The scope of this exception is unclear.  In Times Leader v. Dallas Sch. Dist., 49 D. & C. 3d 329 (Ct. Com. Pl. 1988) (Luzerne Cty.), the court awarded a preliminary injunction to the plaintiffs, enjoining the school district from holding a non-public informational meeting on a commissioned report concerning school overcrowding.  The court concluded that the meeting was not a “conference” under the Act.

c. Working sessions.

Boards of auditors may conduct closed sessions to examine or discuss accounts or records, so long as official action is conducted publicly.  65 Pa. C.S.A. § 707(c).  No cases discuss this exception.

d. Administrative action.

“Administrative action” is “the execution of policies relating to persons or things as previously authorized or required by official action of the agency adopted at an open meeting of the agency.”  See 65 Pa. C.S.A. § 703 (emphasis added).  For example, the revision of expense guidelines in accordance with a prior resolution constitutes ministerial action that does not violate the Sunshine Act. See Common Cause/Pennsylvania v. Itkin, 635 A.2d 1113 (Pa. Commw. Ct. 1993). “Administrative action” does not encompass “the deliberation of agency business.”  See 65 Pa. C.S.A. § 703.

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B. Any other statutory requirements for closed or open meetings

Throughout the Pennsylvania Code, occasional provisions exist that require the meetings of particular public bodies be open to the public.  See, e.g., 53 P. S. § 12527 (stating that council meetings of first class cities must be open). If, as is likely, the courts adhere to their practice under the prior Sunshine Act, these statutes will be read in pari materia with the Act, and will be subject to its exceptions.  See, e.g., Mellin v. City of Allentown, 430 A.2d 1048, 1051 (Pa. Commw. Ct. 1981) (“While we recognize that the [now repealed] Third Class City Code contains no exclusions from its provisions governing open meetings and records, we believe that, because the Third Class City Code relates to the same classes of persons and events as to the [Sunshine Act] and Right to Know Law, the statutes stand in pari materia and must be construed as one.”).

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C. Court mandated opening, closing

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III. Meeting categories - open or closed

Note: The Act bases access on the type of agency action undertaken, not on the particular agency or the subject matter of the action. Hence, specific meeting categories are not particularly helpful.

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A. Adjudications by administrative bodies

The Act expressly allows these to be made in executive session. 65 Pa. C.S.A. § 708(a)(5). Governmental units, including the Commonwealth, take the position that all adjudications may be closed. See, e.g., 4 Pa. Code § 1.50 (policy statement of Commonwealth Counsel regarding privileged, confidential, investigatory and quasi-judicial matters). Section 708(a)(5) of the Sunshine Act, however, is ambiguous about whether all adjudications may be held in executive session.  The Section may be read to permit closure only of that portion of an adjudication or a quasi-judicial proceeding that involves privileged or legally protected information. In fact, that reading may be more consistent with the Act’s legislative policy statement. See 65 Pa. C.S.A. § 702.

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1. Deliberations closed, but not fact-finding

In Kennedy v. Upper Milford Township Zoning Hearing Board, 834 A.2d 1104 (Pa. 2003), the Pennsylvania Supreme Court reversed a decision that the zoning hearing board, a quasi-judicial agency, was not permitted to take a recess to deliberate in private before voting on an application concerning the height of a radio-communications tower.  Notably, in Kennedy, the zoning hearing board heard testimony in public prior to the deliberations.

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2. Only certain adjudications closed, i.e. under certain statutes

There are no statutes of this kind in Pennsylvania.

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B. Budget sessions

Open if agency business or official action is involved unless one of the Act’s exceptions applies.

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C. Business and industry relations

Open if agency business or official action is involved unless one of the Act’s exceptions applies.

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D. Federal programs

Open if agency business or official action is involved unless one of the Act’s exceptions applies.

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E. Financial data of public bodies

Open if agency business or official action is involved unless one of the Act’s exceptions applies.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

The Act provides that such information may be kept confidential if protected by a privilege or other legal measure. 65 Pa. C.S.A. § 708.

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G. Gifts, trusts and honorary degrees

Open.

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H. Grand jury testimony by public employees

Closed. See Pa. R. Crim. P. Nos. 229, 230, and 231; see also 42 Pa. C.S.A. § 4549. Grand jury proceedings are not meetings under the Act.

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I. Licensing examinations

Closed; not a “meeting” under the Act.

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J. Litigation, pending litigation or other attorney-client privileges

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K. Negotiations and collective bargaining of public employees

As referenced above, negotiations and arbitrations of collective bargaining agreements are  subjects for executive session. 65 Pa. C.S.A. § 708(a)(2). In addition, section 708(a)(2) is not limited to negotiations and arbitrations of collective bargaining agreements between public employees and the agency.

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1. Any sessions regarding collective bargaining

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2. Only those between the public employees and the public body

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L. Parole board meetings, or meetings involving parole board decisions

Likely open.

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M. Patients, discussions on individual patients

Likely closed.  See, e.g., 50 P.S. §§ 8002, 8005 (requiring personal information of patients at a state-operated mental health facility to be kept confidential). In addition, a hospital board may not be considered an "agency" under the Act.

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N. Personnel matters

As discussed above, this is generally a subject for executive session.

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1. Interviews for public employment

Interviews are subject to being held during an executive session.  See Morn. Call, Inc. v. Bd. of Sch. Dirs. of S. Lehigh Sch. Dist., 642 A.2d 619, 621 (Pa. Cmmw. 1994).

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2. Disciplinary matters, performance or ethics of public employees

Closed, so long as the ultimate result is voted on in a public meeting. In Mirror Printing Co., Inc. v. Altoona Area School Board, 609 A.2d 917 (Pa. Commw. Ct. 1992), for example, the school board was not required to disclose the subject matter of a disciplinary agreement involving a teacher when the agreement was reached in an executive session but was voted on in a public meeting.

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3. Dismissal, considering dismissal of public employees

Closed, so long as the final result is voted on in public. However, in Philadelphia Newspapers, Inc. v. Ambler Borough Council, No. 87-0725 (Mont. Cty. Ct. C.P., May 26, 1987), a judge held that a hearing on a council member’s absences from a council meeting did not involve a “personnel matter” and must be open to the public. A water treatment expert serving as a consultant to a governmental sewer authority is not an “employee or public officer” and thus the Sewer Authority could not meet in executive session to discuss his termination. Easton Area Joint Sewer Auth. v. The Morning Call, Inc., 581 A.2d 684 (Pa. Commw. Ct. 1990).

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O. Real estate negotiations

A subject for executive session until an option or sales agreement is obtained. 65 Pa.C.S.A. § 708(a)(3).

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P. Security, national and/or state, of buildings, personnel or other

Open; nothing in the Act allows closure if agency business or official action is involved.

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Q. Students, discussions on individual students

Discussion of individual students is generally closed; boards of state-owned or related colleges must meet in executive session to discuss academic standing or admission. 65 Pa.C.S.A. § 708(a)(6). Executive sessions may also be held to avoid disclosure of information privileged or protected by law; this might also include discussions of individual students, particularly when grades or disciplinary proceedings are involved. Discussions relating to proposed disciplinary actions to sanction student conduct are considered “quasi-judicial deliberations” and can be held during executive session.  Picone v. Bangor Area Sch. Dist., 936 A.2d 556, 563 (Pa. Cmmw. 2007).

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IV. Procedure for asserting right of access

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A. When to challenge

Legal challenges under the Act must be filed within 30 days of a closed meeting or within 30 days of discovery of an action that occurred at a closed meeting at which the Act was violated. In the latter case, there is a one-year outside time limit. 65 Pa. C.S.A. § 713. See, e.g., Day v. Civil Service Comm’n of the Borough of Carlisle, 931 A.2d 646 (Pa. 2007) (Sunshine Act challenge brought eight months after closed meeting was untimely); Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990), appeal denied, 593 A.2d 426 (Pa. 1991) (stating that since there was no evidence to support the allegation that legal challenge was initiated more than 30 days after discovery, the court must conclude the action was timely); Bradford Educ. Ass’n. v. Bradford Area Sch. Dist., 572 A.2d 1314 (Pa. Commw. Ct. 1990) (finding that the 30-day limitations began to run when the person claiming a violation of the Sunshine Act read an editorial alleging such a violation).

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

There is no provision in the statute for expedited consideration of a Sunshine Act suit. Such considerations can be obtained by request, or by seeking a temporary restraining order or preliminary injunction.

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2. When barred from attending

There is no provision in the statute for expedited consideration of a Sunshine Act suit. Such considerations can be obtained by request, or by seeking a temporary restraining order or preliminary injunction.

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3. To set aside decision

Yes.

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4. For ruling on future meetings

Yes. Declaratory relief.

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5. Other

Curing violation. Some courts have held that an agency may “cure” a prior violation of the Act by allowing public comment or voting in public at a subsequent meeting. See, e.g., Ass’n of Comm. Org. for Reform Now v. SEPTA, 789 A.2d 811 (Pa. Commw. Ct. 2002); League of Women Voters of Pa. v. Commonwealth, 683 A.2d 685 (Pa. Commw. Ct. 1996).

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B. How to start

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1. Where to ask for ruling

Not applicable. There is no requirement that administrative remedies be exhausted, or that a formal or informal protest or request be lodged with the particular agency. Such a request would be helpful, however, in developing a record for a court challenge.

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a. Administrative forum

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b. State attorney general

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c. Court

In cases involving state agencies, the Commonwealth Court has original jurisdiction of legal challenges. See Property Owners v. Dep’t of Cmty. Affairs, 552 A.2d 769 (Pa. Commw. Ct. 1989) (deciding that the Department of Community Affairs did not have jurisdiction to determine whether the Sunshine Act had been violated). In all other cases, the various Courts of Common Pleas have original jurisdiction. See, e.g., Patriot-News Co. v. Empowerment Team of the Harrisburg Sch. Dist., 763 A.2d 539 (Pa. Commw. Ct. 2000) (appeals of decisions of local school districts properly in local court of common pleas); see also O’Hare v. Cty. of Northhampton, 782 A.2d 7 (Pa. Commw. Ct. 2001) (Sunshine Act vests the Courts of Common Pleas with original jurisdiction over matters arising under the Act).

The action may be brought by “any person” where the agency whose act is complained of is located, or where the unwarranted closure occurred. There is no requirement that administrative remedies be exhausted, or that a formal or informal protest or request for openness be made to the agency before court proceedings are begun.

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2. Applicable time limits

Legal challenges under the Act must be filed within 30 days of a closed meeting or within 30 days of discovery of an action that occurred at a closed meeting at which the Act was violated. See, e.g., Thomas v. Twp. of Cherry, 722 A.2d 1150 (Pa. Commw. Ct. 1999) (stating that the court would address the other violations alleged in the complaint despite acknowledgement that the complaint was untimely filed pursuant to the thirty-day “timeliness” requirement of the Act). In the latter case, there is a one-year outside time limit. 65 Pa. C.S.A. § 713.

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3. Contents of request for ruling

There is no requirement that a formal or informal protest or request for openness be made to the agency before court proceedings are begun.

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4. How long should you wait for a response

There is no requirement that administrative remedies be exhausted before court proceedings are begun.

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5. Are subsequent or concurrent measures (formal or informal) available?

No.

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C. Court review of administrative decision

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1. Who may sue?

Suit may be brought by “any person.” 65 Pa. C.S.A. § 715. This language was probably intended to allow suit on a showing of “taxpayer” or “citizen” interest; however, the language is broad enough to allow suits by persons who are neither citizens nor taxpayers of Pennsylvania. Traditional standing principles do not apply to the Sunshine Act; thus, proof of an injury or special interest is not required. Press-Enterprise, Inc. v. Benton Area Sch. Dist., 604 A.2d 1221 (Pa. Commw. Ct. 1992) (holding that a publisher of a newspaper has standing to bring an action against a school district for alleged violation of the Sunshine Act “because of the media’s unique role and interest in observing government activity in our democracy.”). Additionally, “person” includes a corporation. Id.

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2. Will the court give priority to the pleading?

Nothing in the Act requires the court to give expedited consideration to a Sunshine Act challenge. In emergency situations, a litigant would proceed by seeking a temporary restraining order or preliminary injunction.

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3. Pro se possibility, advisability

Pro se suits are permissible under the Act, although the structure in bring an action pro se is sufficiently complicated to make such suits unadvisable.

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4. What issues will the court address?

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a. Open the meeting

The Act’s framework for obtaining relief is directed primarily towards after the fact challenges to alleged violations. See 65 Pa.C.S.A § 713. However, nothing in the Act would appear to bar a judicial challenge to a meeting in progress, although the practical impediments to mounting such a challenge in time to open the proceeding would be considerable in most cases.

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b. Invalidate the decision

The court may invalidate action taken at any meeting that violates any requirement of the Act, including the notice provisions. It may grant declaratory or injunctive relief with respect to particular practices. It may temporarily enjoin challenged action while it considers the merits of the challenge. However, a court is not required to invalidate action taken where there has been a violation of the Sunshine Act. Ackerman v. Upper Mt. Bethel Twp., 567 A.2d 1116 (Pa. Commw. Ct. 1989). Pennsylvania courts have held that a violation of the Act may be “cured” by deliberations and/or official action that occurs at a later meeting open to the public. Id.; see also Ass’n of Cmty. Orgs. for Reform Now v. SEPTA, 789 A.2d 811 (Pa. Commw. Ct. 2002) (holding that “any alleged violation of the Sunshine Act was cured by th[e] subsequent public meeting, at which [SEPTA’s] official action was taken”); Lawrence Cty. v. Brenner, 582 A.2d 79 (Pa. Commw. Ct. 1990) (stating that a violation of the Act may be cured by a subsequent ratification of the action at a public meeting); Doverspike v. Black, 535 A.2d 1217 (Pa. Commw. Ct. 1988) (rejecting the argument that a contract entered into by County Commissioners violated the former Sunshine Act when the contract was voted on at a public meeting after the date the contract was signed); Bianco v. Robinson Twp., 556 A.2d 993 (Pa. Commw. Ct. 1989) (holding that any complaint that decisions made at an executive session violated the Sunshine Act was rendered moot when a public meeting was later held to ratify the actions taken at the executive session).

The court holds great discretion in deciding whether to invalidate a decision made at a closed meeting. Bradford Educ. Ass’n v. School Dist., 572 A.2d 1314 (Pa. Commw. Ct. 1992) (noting that the trial court has broad discretion to refuse to construe the Act strictly); Keenheel v. Commonwealth, 579 A.2d 1358 (Pa. Commw. Ct. 1990) (noting that although the Pennsylvania Securities Commission should have voted on litigation settlement offer in open meeting, the court did not invalidate the Commission’s approval since petitioner did not claim injury because of that violation); In re Hazelton Area Sch. Dist., 527 A.2d 1091 (Pa. Commw. Ct. 1987) (where the court excused a school district’s failure to comply with the Act’s notice provisions because the violation was technical, occurred under unusual conditions of time pressure, and because no prejudice resulted.)

Discharge responsible officials. An alleged failure to comply with the requirements of this Act was not found to justify discharging the officials from office. Muncy Creek Twp. Citizens Comm. v. Shipman, 573 A.2d 662 (Pa. Commw. Ct. 1990).

Order payment of damages. At least one court has declared that damages are not available if a violation of the Sunshine Act has occurred. See Ass’n. of City Mgmt. and Prof. Emps. v. Civil Serv. Comm’n of City of Phila., 721 A.2d 815, 818 (Pa. Cmmw. 1998).

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c. Order future meetings open

The court may order future compliance with the Act’s provisions as relief. See Reading Eagle Co. v. Council of the City of Reading, 627 A.2d 305 (Pa. Commw. Ct. 1993) (affirming trial court’s grant of permanent injunction against City Council, requiring it to announce specific reasons for going into executive session at future meetings); Patriot-News Co. v. Empowerment Team of the Harrisburg Sch. Dist., 763 A.2d 539 (Pa. Commw. Ct. 2000) (upholding trial court’s entry of a preliminary injunction requiring meetings to be open to the public). This same reasoning would support a petition for relief that included a prospective order to keep meetings open.

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5. Pleading format

The manner in which a “legal challenge” is to be initiated is not defined in the Sunshine Act, and it is not clear from the text how specific the grounds for the challenge must be. Thus, the manner in which a legal challenge is initiated, whether by complaint, writ of summons, agreement, “or other traditionally recognized means” is not significant. Tom Mistick & Sons, Inc. v. City of Pittsburgh, 567 A.2d 1107 (Pa. Commw. Ct. 1989), appeal denied, 589 A.2d 695 (Pa. 1990). Appeals under the Right to Know Law may be instructive. When an appeal is brought in the Commonwealth Court, as opposed to the Court of Common Pleas, the proper pleading is a petition for review pursuant to Pa. R.A.P. 1501, et seq. See Ristau v. Casey, 647 A.2d 642 (Pa. Commw. Ct. 1994). When an appeal is taken to a Court of Common Pleas, counsel should consult the local court rules for guidance.

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6. Time limit for filing suit

Legal challenges under the Act must be filed within 30 days of a closed meeting or within 30 days of discovery of an action that occurred at a closed meeting at which the Act was violated. In the latter case, there is a one-year outside time limit. 65 Pa. C.S.A. § 713.

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7. What court?

In cases involving state agencies, the Commonwealth Court has original jurisdiction of legal challenges. See Property Owners v. Dep’t of Cmty. Affairs, 552 A.2d 769 (Pa. Commw. Ct. 1989) (deciding that the Department of Community Affairs did not have jurisdiction to determine whether the Sunshine Act had been violated). In all other cases, the various Courts of Common Pleas have original jurisdiction. See, e.g., Patriot-News Co. v. Empowerment Team of the Harrisburg Sch. Dist., 763 A.2d 539 (Pa. Commw. Ct. 2000) (appeals of decisions of local school districts properly in local court of common pleas).

Pennsylvania courts have rejected arguments that certain proceedings were held pursuant to another statute and divest the Courts of Common Pleas of jurisdiction to hear Sunshine Act appeals. See, e.g., Hare v. Cty. of Northampton, 782 A.2d 7 (Pa. Commw. Ct. 2001) (holding that court of common pleas, not the Department of Community and Economic Development, had jurisdiction to hear Sunshine Act appeal claiming violations occurring during proceedings approving a bond ordinance).

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8. Judicial remedies available

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9. Availability of court costs and attorney's fees

The Act specifically requires the court to impose reasonable attorneys’ fees and costs of litigation on an agency that “willfully or with wanton disregard violated a provision of this chapter, in whole or part.” The Act also requires the court to award reasonable attorneys’ fees and costs of litigation for legal challenges “of a frivolous nature” or “brought with no substantial justification.” 65 Pa. C.S.A. § 714.1.

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10. Fines

65 Pa. C.S.A. § 714 provides that any “member of any agency who participates in a meeting with the intent and purpose by that member of violating this act commits a summary offense and shall, upon conviction, be sentenced to pay:

(1) For a first offense, the costs of prosecution plus a fine of at least $100 and, in the discretion of the sentencing authority, of not more than $1,000.

(2) For a second or subsequent offense, the costs of prosecution plus a fine of at least $500 and, in the discretion of the sentencing authority, of not more than $2,000.

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11. Other penalties

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D. Appealing initial court decisions

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1. Appeal routes

Decisions of the Common Pleas Court may be appealed to the Commonwealth Court, 42 Pa. C.S.A. § 762, within 30 days of the entry of the order appealed from. Pa. R.A.P. 903(a). However, a claim that there was a violation of the Sunshine Act may not be raised on appeal if it had not been raised before the Common Pleas Court. Perin v. Bd. of Supervisors, 563 A.2d 576 (Pa. Commw. Ct. 1989). Further review by the Pennsylvania Supreme Court is discretionary. 42 Pa. C.S.A. § 724(a); Pa. R.A.P. 1113. When original jurisdiction is in the Commonwealth Court, there is a right of appeal to the Pennsylvania Supreme Court. 42 Pa. C.S.A. § 723(a).

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2. Time limits for filing appeals

The notice of appeal must be filed within 30 days of the entry of the order appealed from. Pa. R.A.P. 903(a).

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3. Contact of interested amici

Anyone “interested” in the questions involved in any appeal may file a brief amicus curiae without leave; oral argument by an amicus is permitted rarely and only at the court’s direction. Pa. R.A.P. 531.

The Reporters Committee for Freedom of the Press often files amicus briefs in cases involving significant media law issues before a state’s highest court.

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V. Asserting a right to comment

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A. Is there a right to participate in public meetings?

There should be a “reasonable opportunity” for all those who have standing “to comment on matters of concern, official action or deliberation which are or may be before the board or council prior to taking official action.” 65 Pa. C.S.A. § 710.1(a). The board or council has “the option to accept all public comment at the beginning of the meeting.” If the board or council determines that there is “not sufficient time” for all such comment, it “may defer the comment period to the next regular meeting or to a special meeting occurring in advance of the next regular meeting.”

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B. Must a commenter give notice of intentions to comment?

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C. Can a public body limit comment?

If it finds that there is “not sufficient time,” it may defer such comment. One court suggested that comment should be limited to “current business” and not the over-broad standard of “matters of concern” that “may” come before an agency. See Baravordeh v. Borough Council of Prospect Park, 706 A.2d 362 (Pa. Commw. Ct. 1998).

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D. How can a participant assert rights to comment?

Participants may assert that being improperly ejected or silenced at a public meeting constitutes a violation of the First Amendment. See Galena v. Leone, 638 F.3d 186 (3d Cir. 2011).

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E. Are there sanctions for unapproved comment?

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Appendix

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