1. What is the Right-to-Know law?
It is Pennsylvania’s open records law, which permits requesters the right to inspect and duplicate certain records of government agencies. Section 701.
2. Why is Right-to-Know in the news?
On February 14, 2008, Governor Rendell signed into law a completely revamped Right-to-Know law.
3. When does the new law take effect?
The law applies to all record requests made on or after January 1, 2009.
4. Where can I get a copy of the Right-to-Know law?
There is a link to the law on the website for the Pennsylvania Office of Open Records.
5. What is the website address for the Office of Open Records?
6. Why is this law being touted as a major reform initiative?
Presumption public if in agency possession. Unlike its predecessor, the new law sets forth a general rule in Section 305 that a record in the possession of a Commonwealth agency or local agency is now presumed to be a public record unless:
- The record fits one of the 30 exemptions found in Section 708
- The record is protected by a privilege, e.g., attorney-client privilege; attorney-work product doctrine; doctor-patient privilege, etc.
- The record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree
Burden of proof on agency to establish not subject to access. The prior law defined public records and placed the burden on the requester to prove the requested records met the definition. Section 708(a) of the new law places the burden of proving an agency record is exempt from public access on the agency receiving a request. The agency must meet this burden by a preponderance of the evidence.
7. Do all members of PSBA have to comply with this law?
Yes. School entities are covered under this law as either local or Commonwealth agencies. The law defines local agencies to include any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school. It also includes any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity. Sections 102, 301.
8. Who else must comply with the Right-to-Know law?
The law applies to Commonwealth agencies, which are treated very similarly to local agencies; judicial agencies, as to financial records only; and most of the legislature, as to certain legislative records. Note: Community Colleges and PIAA are covered as Commonwealth agencies. Sections 102, 302, 303, 304.
9. What is the Office of Open Records?
The Office of Open Records is a newly established state agency with responsibilities involving Commonwealth and local agencies. Some of these include:
- Promulgation of regulations relating to implement the act and relating to appeals. Section 504. At this time, the Office of Open Records has not begun this process and is instead including information on its website as to how it will handle things pending use of the regulatory process.
- Development of a uniform request form which must be accepted. Section 505. This is on the Office of Open Records Website. PSBA recommends agencies also create an agency specific form.
- Accepting and issuing final determinations on appeals from agency denials of access. Section 1101.
- Establishing duplication fees and approve fees set by agencies for enhanced electronic access to records. Section 1307 (a)(d)(e). The Office of Open Records has posted a “Fee Structure” on its website.
- Provide information on implementation and enforcement of the law; issue advisory opinions to agencies and requesters; offer training on Right-to-Know and the Sunshine Law including regional training; assign qualified appeals officers; establish an informal mediation program; establish an Internet website with extensive information, conduct a biannual review of fees charged under the law; make an annual report to the Governor and the General Assembly. Section 1310.
10. What steps should our school district (Commonwealth or local agency) take to be ready for compliance?
Designate an open-records officer. Section 501 of the law, requires you to designate an official or employee to act as an open-records officer. This should be an individual who has sufficient skills to carry out the statutory duties and analysis required under the law and the authority to ensure employee cooperation and compliance with the law.
Post information. You must post certain information at you offices and on your Internet website, if one is available. Section 504(b). The required postings must:
- Provide the contact information for your open-records officer
- Provide contact information for the Office of Open Records or other appeals officer (which is the District Attorney or a designee in some cases)
- Include a form which may be used to file a request
- Include any policies or procedures of the agency relating to the agency’s implementation of the act
Promulgate a policy and procedures. The law does not require you to develop a policy, but it species you do have that authority. Section 504(a).
PSBA’s model Policy 801 was vetted by the Office of Open Records and made available to members of PSBA’s Policy Maintenance Service and the PSBA Solicitors’ Association. PSBA adopted most of the comments by the Office of Open Records, but had a different “take” on which fees may be set locally versus those to be set by the Office of Open Records.
PSBA has also prepared model Administrative Regulations (procedures for carrying out policy) as part of its Administrative Regulation Service. Although these are not routinely included, the model administrative regulations were provided to members of the Policy Maintenance Service as a courtesy
Your school district should establish and approve its per page duplication fee of between $.10 and $.25 per page, which is consistent with the “Fee Structure” posted by the Office of Open Records
CAUTION: This is a complex law and reasonable minds can differ in interpreting what agencies can and cannot do. Always check with your solicitor regarding Right-to-Know policies and procedures.
Choose an acceptable record request form. Section 701 states that requesters may only pursue relief and remedies under the law if the requester files a written request. Written requests must be addressed to the agency’s open-records officer; specifically identify the records requested; and include a name and address for a response to the written request. Section 702. Remember to post this form.
- You should develop your own agency request form and post it to ensure all required information is included in a written request.
>> get the
- In addition, Pennsylvania’s Office of Open Records has developed and posted a form on its website which must be accepted by agencies. Section 505. NOTE: PSBA is concerned that requesters might not include everything required on a written request when this form is used. You must accept it, but should train staff to explain to a requester what must be included to ensure the request meets the requirements of a written request under the law, described elsewhere in these FAQs,
Prepare and train employees.
- The Superintendent, Director or other agency head should issue a memorandum to staff informing them the new law takes effect January 1, 2009 and emphasizing the time sensitive nature of Right-to-Know law requests and the serious consequences the school district faces if employees do not treat these requests and the open-records officer’s requirements relating to requests as high priority matters requiring urgent and immediate action.
- Open-records officers have many responsibilities under this law that will require training and use of resources such as PSBA’s upcoming new edition of the book, Public Access to Public Meetings, Public Records.
- In addition to the suggested memorandum, staff which may have clerical duties relating to requests should be trained on the new law in more detail. For example, agencies must direct employees to forward a written request for records to the open-records officer. Section 703.
11. What is a record?
A record is information, in any form and including documents, paper, letters, maps, books, tapes, photos, film or sound recording, electronically stored or maintained information, data-processed or image-processed documents 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
12. What is a public record?
A public record is record, including a financial record, of a Commonwealth or local agency that:
- is not exempt under Section 708
- is not exempt from being disclosed under any other federal or state law or regulation or judicial order or decree
- Is not protected by a privilege.
13. What is a financial record?
A financial record includes any of the following:
- any account, voucher or contact dealing with
- the receipt or disbursement of funds by an agency; or
- an agency’s acquisition, use or disposal of services, supplies, materials, equipment or property;
- 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
- A financial audit report. The term does not include work papers underlying an audit.”
14. What are the exemptions (exceptions) in Section 708(b) that limit a requester’s access to a record?
There are 30 exceptions, which in turn have numerous subsections which make records exempt from access. Those most relevant to public schools include:
Exception 1(i): Loss of certain funds. A record, the disclosure of which, would result in the loss of federal or state funds by a school district;
Exception 1(ii): Harm an individual. A record, the disclosure of which would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual;
Exception 2: Public safety. A homeland security exception that exempts records which are reasonably likely to jeopardize or threaten public safety or preparedness and more;
Exception 3: Building and infrastructure security. Records, the disclosure of which, are reasonably likely to endanger the safety or physical security of buildings, utilities, resources, facility or information storage systems and more. Examples of such records include things like building plans which expose or create vulnerability through disclosure of critical systems and those regarding computer hardware, software and networks;
Exception 4: Computer security. Records, the disclosure of which would jeopardize computer security;
Exception 5: Individual medical information. A record of an individual’s medical, psychiatric or psychological history of disability status, or information that would disclose individually identifiable health information.
Exception 6: Personal identification information. Records 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, a spouse’s name, marital status or beneficiary or dependent information. NOTE: Home addresses and individual birthdates found in agency records are subject to access unless a different exception applies, e.g., due to a danger to the person, for undercover police operatives, for judges and for minors.
Exception 7: Employee information. Records including a performance rating or review, letter of reference, workplace support services program information, written criticisms of an employee, grievance materials, information regarding discipline, demotion or discharge contained in a personnel file except those final actions of an agency resulting in demotion or discharge.
Exception 8: Labor negotiations and individual grievances. Records pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings and the exhibits, transcripts and opinions of arbitrators in grievance arbitration. NOTE: Collective bargaining agreements and the final award or order of the arbitrator in a dispute or grievance procedure are public records and not subject to this exception.
Exception 9: Drafts. Draft policies, management directives and drafts of amendments to same are exempt from access
Exception 10: Pre-decisional deliberations. A record that reflects the internal, pre-decisional deliberations of an agency, its members, employees or officials or any research, memos or other documents used in the predecisional deliberations. NOTE: There are some exceptions carved out of this and a point at which some, but by no means all, pre-decisional records can become subject to access. Exercise caution.
Exception 11: Trade secrets and proprietary information. A record that constitutes or reveals a trade secret or confidential proprietary information. NOTE: Those asserting records in possession of an agency contain trade secrets or confidential proprietary information must provide written information on this in contracts with agencies and have an opportunity to provide input to an open-records officer when this exception is at issue.
Exception 12: Personal notes and working papers and materials with no official purpose. 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 and materials that do not have an official purpose.
Exception 15: Academic materials. Transcripts, examinations, examination questions, scoring keys or answers to examinations, including those given to students from elementary school through higher education and licensing examinations
Exception 16: Criminal investigation records. Agency records relating to or resulting in criminal investigations.
Exception 17: Noncriminal investigation records. A record of an agency relating to a noncriminal investigation.
Exception 21: Minutes. Draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency and minutes of an executive session and any record of discussions held in executive session.
Exception 22: Real estate appraisals and other pre-acquisition or disposal records. The contents of real estate appraisals, engineering estimates, made for an agency relative to the leasing, acquiring of real property or public supplies included in the real estate transaction except once the decision is made to proceed with the lease or transfer of property.
Exception 23: Individual library or archive use information. Circulation and order records of identifiable individuals or groups.
Exception 26: Pre-award procurement information. A proposal pertaining to agency procurement or disposal of supplies prior to the award of the contract or opening and rejection of all bids; and financial information of a bidder requested in an invitation for bid.
Exception 27: Communication with insurer. A record or information relating to a communication between a district and its insurance carrier. This does not apply to a contract with an insurance carrier or to financial records relating to the provision of insurance.
Exception 28: Recipients of social services. A record or information identifying applicants or recipients of social services, agency determinations on eligibility, identity of those providing social services and information about individuals applying for or receiving social services.
This is a major exemption for school districts, both as employers and as to certain students. Under Section 102, the term social services includes, “Cash assistance and other welfare benefits … medical, mental and other health care services, drug and alcohol treatment, … vocational services and training, occupational training, education services, counseling services, workers' compensation services and unemployment compensation services, foster care services, … services for individuals with disabilities…”
Exception 30: Minors. A record identifying the name, home address or date of birth of a child 17 years of age or younger.
15. Is it true school board packets are now public records upon mailing to the board?
No. Most board packets when mailed have some public and some nonpublic information in them, however the fact of mailing them to the board does not change the character of the record. This misconception arises from a misunderstanding of the definition of record, public record and of Exception 10, which relates to predecisional documents.
Board packets are typically a collection of materials circulated to the board prior to a meeting. Consider first, the various components of a board packet. It is only through this analysis that you can decide what is already public on the day they are mailed. And remember that access is only required if a requester makes a proper written request and in accordance with the law. The records in Board packets fall into many possible categories:
- They might include records which are already public within the meaning of the law, such as a final copy of a fully adopted Board policy. These are not made public by virtue of the mailing, but because they are already public.
- They might include records subject to one or more exceptions under the Right-to-know law. For example, a draft policy might be in the packet and subject to Exception 9. A student disciplinary adjudication might be in the packet and subject to Exception 1(i). These records remain subject to an exemption even if the board receives copies for some reason.
- They might include an opinion letter from the board solicitor, which is not subject to public access because it is confidential under a recognized privilege. Records subject to privileges are not public records. Section 102.
- They might include information for the board which is not for deliberation, such as a superintendent’s written update to the board on recent issues she handled within the district, which requires no board deliberation or action. While PSBA expects disagreement on this, it is our opinion this kind of document is arguably not even a record. PSBA believes that if it is a record at all within the meaning of the law, it is in the nature of notes and working papers covered by Exception 12.
- They might include the background materials relating to matters on the agenda for the next board meeting, including information on the internal, predecisional deliberations of the board and its employees or among agency staff including proposed courses of action. This is where Exception 10 comes into play:
- The Sunshine law applies to such records. Thus, if they are to be reviewed with the board during a proper Executive Session, they do not become public at that time, in PSBA’s opinion.
- If the record:
- is presented to a quorum of the Board or a quorum of a committee of the Board at a meeting required to be held in the open pursuant to the Sunshine law, “for deliberation” as defined by the Sunshine law AND
- if the records are otherwise public records not subject to any other exemption, THEN
- it shall be a public record.
What does it mean to present a record to a quorum “for deliberation” under the Sunshine law?
It is our opinion that a record is only presented for deliberation by the board when it is presented at an open Sunshine law meeting: Under the Sunshine law, “deliberation” is, “the discussion of agency [school district or board committee] business held for the purpose of making a decision.” 65 Pa C.S.A. §703. Your board or committees can only make decisions on agency business through taking “official action.” 65 Pa C.S.A. §703. “Official action and deliberations by a quorum of the members of [a school board or board committee] shall take place at a meeting open to the public unless closed under section 707 (relating to exceptions to open meetings), 708 (relating to executive sessions) or 712 (relating to General Assembly meetings covered.” 65 Pa C.S.A. §704.
So, does this mean these records must be handed out to the public upon presentation to the board for deliberation?
No. The requester still would have to provide a written request for records which is then subject to the procedural requirements of the Right-to-Know law.
How will we track all this? Michael Levin, General Counsel to PSBA suggested in an early article on the law that prior to distribution the superintendent and other administrators should designate all records included in the packet or those otherwise provided to school directors that are exempt from disclosure as being subject to an exemption and to be maintained by the board as confidential. He suggests, “Perhaps such documents should be color coded with a citation on the first page to the specific exemption that is applicable.” PSBA Bulletin, June 2008. Remember that in addition to the exemptions found in Section 708, records subject to a recognized privilege or that are not permitted to be accessed by virtue of Federal or State law or judicial order or decree are not public records.
16. Do we have to disclose a school district superintendent’s contract or salaries of our school employees?
Yes, but note that personal financial information is excluded under the law from disclosure. This includes 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. Section 102.
17. Must the home addresses of school directors and employees be disclosed?
Home addresses (and dates of birth) are generally subject to disclosure; however some exceptions may apply to individual circumstances. (See the note on Exception 6 in these FAQ.)
18. Who may make a request for records?
A person that is a legal resident of the United States, including an agency, may make a request. Section 102. The term, “person” “includes a corporation, partnership, limited liability company, business trust, other association, government entity (other than the Commonwealth), estate, trust, foundation or natural person, 1 Pa.C.S.A. 1991. This is a change from prior law, which required a requester to be an individual Pennsylvania citizen.
19. Must school districts (agencies) provide access to records if a request is made verbally or anonymously?
No. School districts MAY fulfill verbal or anonymous verbal or written requests for access to records. However, a requester must make a written request including specific information to pursue any rights under the law. Section 702
20. What must a written request include if a person wants to pursue any rights under the law?
A written request which gives rise to relief or remedies under the law must:
- Be addressed to the agency’s open-records officer
- Identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested
- Include the name and address to which the agency (open-records officer) should address its response.
21. Must a requester mail the request to our school district (agency)?
No. This is just one option. The law provides four ways of submitting written requests which you must accept, as well as an option to adopt other means of receiving them. These include:
- In person (Be sure to include where in person requests should be submitted in your posted information)
- By mail (Be sure to include the name and mailing address of your agency’s open-records officer in your posted information)
- By e-mail (Be sure to dedicate an e-mail address for open records and make sure they are not rejected by your server or that you have a way of checking for requests that might not get through your normal security system. Post the e-mail address)
- By fax (Be sure to make the fax number for records requests one which is checked regularly and accessible to the agency open-records officer and post the information)
- If provided by agency rules, then by any other electronic means (If you have some other means of receiving written requests electronically, e.g. through your web page, be sure to adopt a rule and post this information)
22. May a school district (agency) inquire about the reason for the record request?
For limited purposes only, you may seek to clarify what information the requester wants when a request is not sufficiently specific. Since a request must be sufficiently specific to permit an open-records officer to ascertain what records are being requested, it is appropriate to ask a requester questions when the request is stated too broadly or you need clarification. However:
- A written request need not include an explanation of the requester’s reason for requesting or intended use of the records unless otherwise required by law. Section 703
- Agencies may not adopt policies or regulations requiring disclosure of the purpose or motive in requesting access to records. Section 1308.
23. How should a school district (agency) track a public record request?
The law details the steps required for responding to written requests and PSBA recommends some additional steps:
- Employees of your district must be directed to forward written requests for records to the open-records officer. Section 703
- The open-records officer shall:
- Receive requests submitted to the agency under the law. Section 502(b)(1)
- Establish and maintain an electronic or paper file:
- Containing the written request and all documents submitted with the request. Section 502(b)(2)(iii)
- If the request is granted, maintain the file at least until the request has been fulfilled. Section 502(b)(2)(iii)
- If the request is denied, maintain the file at least for thirty days and if the denial is appealed, maintain at least until a final determination is issued by an appeals officer or until the appeal is deemed denied. Section 502(b)(2)(iii)
- Commonwealth agencies must and PSBA recommends other agencies also: create a file for the retention of the original request, a copy of the response, a copy of any written communication with the requester and a copy of other communications. Section 502(b) (2)(iv). PSBA suggests your school district include these files in your records retention and disposition schedule.
- Note the date of receipt on the written request. Section 502(b)(2)(i)
- Compute the date on which the 5 business days initial interim or final response is due. Sections 502(b)(2)(ii) and 901
- Note the date the 5 business day response is due on the written request. 502(b)(2)(ii)
- Direct the request to other appropriate persons within the agency or in another agency (For example, to determine where records are and what others have which might be responsive to the request). Section 502(b)(2)(1)
- If the request if for the transcript of an administrative hearing, the open-records officer must determine the status of the administrative proceeding to determine what to tell the requester about duplication and fees. Section 707(c)
- Make a good faith effort to determine whether a requested record is one that must be made accessible for inspection or duplication. Section 901
- If the record is one that must be made accessible, determine whether the agency has possession, custody or control of the identified record. Section 901.
- Determine whether an extension of up to thirty calendar days is required prior to issuing a final response and whether the reason is one permitted by the law. Section 902.
- Track the school district’s progress in responding to requests. PSBA recommends agencies establish tracking systems that include automatic reminders and alerts to ensure those responsible for providing information and records to the open-records officer handle these expeditiously and that every deadline is tracked in a functioning tickler system
- Issue final and interim responses required by the law. Section 502(b)(1)
PSBA recommends creating an annual report showing the number and types of requests received and their disposition
24. Since we have 5 business days to send a response to a request, does that mean we have only 5 business days to pull together copies of records and send them out with a response granting access?
No. The Right-to-Know law is a law which provides access to inspect and duplicate records in accordance with the law. Section 701. After receipt of a written request, the open-records officer has 5 business days to provide the initial response. This could be an interim response, discussed below, or it might be a final response. If the response grants access to the public records, this should not be misunderstood to mean that a school district has to deliver a hard copy of the public record to the requester at the same time it issues the response.
25. What is a response?
Ultimately, an open-records officer will issue a response which:
- Grants a request for access by giving access or issuing a response that the right to access is granted; or
- Denies a request for access; or
- Partly grants and partly denies a request for access.
26. What is an interim response?
One responsibility of the open-records officer is to provide “interim” and “final” responses. A final response is the same as a response, as noted in Question 24. However, some requests trigger procedures or notices which are not final responses. Although not defined as “interim responses” they are required by or necessary to ensure compliance with the law and we believe these are what is meant by an “interim” response. These include:
Extension. Notice of need for extension
- Five business days for written notice of need for extension
- Thirty calendar day cap for extension absent consent to longer period. Section 902
Secret information. If the request seeks access to records which may fall within the “confidential proprietary information” or “trade secrets” provisions of the act, the special procedures applicable to such records, which include special time limitations, must be initiated. Section 707(b)
Certain transcripts. If the request involves a copy of a transcript of an administrative proceeding, the requester might have to be directed to the agency stenographer or a court reporter for copies. Section 707(c)
Prepayment of costs due.
- If fulfillment of a request is anticipated to exceed $100.00 the agency may require prepayment; and
- prior to providing duplicates, the agency may require payment of fees.
Such required prepayment might require an interim communication notifying the requester of the amount of money due prior to fulfillment of the request or provision of copies. Section 1307.
Need more information/clarification. If a written request is too broadly stated and it is unclear what records would be responsive, an open-records officer might write seeking clarification of the request. Section 703
27. What are the permissible reasons to take an extension of time to issue a final response to a request?
A school district (agency) may receive an extension of time for access, but only if the open records officer sends written notice to the requestor within five business days of the receipt of the request for access and one of the following applies:
- The request for access requires redaction
- The request for access requires the retrieval of a record stored in a remote location
- Bona fide staffing limitations precludes a timely response to the request
- Legal review of the request is necessary to determine if the record is subject to accessibility
- The requestor refuses to pay applicable fees authorized by the act
- The extent or nature of the request precludes a response within the require time period
28. Under what circumstances does a district have to provide a public record in an electronic format?
In requested medium. The law specifies a public record must be provided to a requester in the medium requested if it exists in that medium. Otherwise, the school district may provide the public record in the medium in which it exists. Section701(a).
Need not permit use of agency computer. Under no circumstances, is a school district required to provide access to a school district computer that a requester can access a public record that is maintained in an electronic format. Section 701(b).
Be careful when providing electronic copies. PSBA advises members to ensure any files copied onto computer disks in response to a request are free of underlying “metadata,” data which might be hidden within the files and might contain nonpublic information.
Be careful when allowing use of agency equipment. Similarly, if your district chooses to provide computers for public access, make sure they are secure and that the user cannot access nonpublic records via that computer.
29. Is a school district allowed to put its records on the Internet and tell a requester to look at them there?
Yes, but the requester may also request a paper copy of such records. An agency may make its records available through any publicly accessible electronic means and may respond to a request by directing a requester to the public site. However, a requester unable or unwilling to use the publicly accessible electronic means has 30 days to submit a written request to have the record converted to paper and the agency then has five days to convert the record. Section 704.
30. Does a school district have to reformat existing records or create a record to aid the requestor?
No. Section 705 states that a district is not 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.
31. How does the law deal with a record that contains both public information and protected information (Redaction)?
If the record contains information subject to access and information that is not such as personal financial information, the agency must grant access to the information that is public and deny access to the information that is not accessible. The school district must redact from the record the information which is not subject to access if it is an integral part of the public record. The district cannot simply deny access to both the information that is accessible and nonaccessible. Section 706.
32. Does my school district have to mail requested copies of public records?
No. The law recognizes your agency might choose to mail copies and permits you to charge for postage under Section 1307. However, your response to a request for duplicates can be to notify the requester that the request is granted and they will be notified when the copies are available. Sections 102 and 701.
33. Must public records be made available for inspection or duplication simultaneously with a response granting access to the records?
No. However there is a provision that public records shall be made accessible in accordance with the law and available for access during the regular business hours of the agency. If the open-records officer grants access on one business day and the requester appears at the agency the next business day, it is unclear whether or not the agency must have them available at that moment. PSBA recommends adopting an agency procedure for arranging a time for a requester to access public records once the request has been granted, to ensure the records are available and a location for inspection has been set aside should that be necessary. School districts should not take an unreasonable amount of time to provide access and, if it has some records available and needs to gather others, it should make the records available on a rolling basis. Common sense and good faith should be the guiding principles here.
34. Is there any relief for school districts (agencies) when a requester seeks a large number of records, makes repeated requests for records or makes an unusually complex request that takes up significant staff time or would involve access to fragile or unavailable records belonging to the agency?
The Right-to-Know law only addresses the issue of burdensome or complex requests in a few ways and there is some disagreement on what fees may be assessed where significant agency resources are redirected to such requests. Some ways such issues are addressed or could be addressed include:
- There is no right to a per se limit on the number or records which must be made accessible for inspection or duplication. A school district MAY NOT adopt a policy or regulation that limits the number of records which may be requested or made available for inspection or duplication. Section 1308(1)
- An agency may deny a request if a requester makes repeated requests for the same record and the repeated request have placed an unreasonable burden on the agency, however this does not bar the requester from requesting different records. Section 506(a)
- A school district may also deny access to a requester when access is not possible due to fire, flood or other disaster or to historical, ancient or are documents, records, archives and manuscripts when access may cause physical damage or irreparable harm to the record. This determination must be made by a curator or custodian of the record, and to the extent possible, must make the contents of a record accessible to a requester even when the record is physically unavailable. Section 506(b)
- If a request is not sufficiently specific and the requester cannot or will not clarify it, the agency may provide access to the records which are clearly responsive to the request and deny access to any further records on the basis the request is not sufficiently specific. Section 703
- Remember your school district does not have to go through the records and retrieve the specific information sought by the requester or help the requester narrow the search, so if the records sought are voluminous and they do not include exempt information, provide access to them and let the requester make the search.
- Similarly, if the requester seeks duplicates of public records containing certain information but the number of pages is significant, the agency is not required to cull through these to carve out the information sought, but can notify the requester of the cost for duplicates of all the records containing the information they are seeking. Sometimes, the requester will then come to the agency and inspect the records in order to narrow the number of pages, which is fine.
- School districts (agencies) may never charge a requester for the time it takes to review the record in order to decide whether it is subject to access for inspection and duplication. Section 1307(g)
- At this time, the Office of Open Records has taken the position that agencies may not charge for staff time to fulfill a record request. PSBA disagrees with this legal analysis but advises school districts and agencies to reserve the right to charge for these and to monitor time spent and costs incurred in connection with:
- Time spent redacting exempt information from a record
- Time spent on search and retrieval of records (Note: If excessive time is required due to the agency’s disorganized storage or poor recordkeeping, PSBA agrees it is unreasonable to expect the requester to bear the costs of the agency’s poor housekeeping)
- Personnel costs for copying records to the extent your per page fee is insufficient to recoup the costs to the school district
- Personnel costs for preparing a record for deliver
- Personnel costs for observing a requester who is reviewing or copying a record
- Costs for agency personnel to instruct a requester on the use of agency equipment used to view a record or for use of agency equipment used to view a record
- Any other processing costs your school district incurs
35. Who should handle the request for an agency record that is in the position of another entity?
If a public record is not in the possession of a school district, but is in the possession of a contractor who is performing a governmental function on behalf of the school district, a request for the public record must be submitted to the school district not the contractor. If the school district’s open records officer determines that the record is subject to access, the open records officer must assess the duplication fee and upon collection remit the fee to the contracting agency if it duplicated the record. The term “governmental function” is not defined by the law and PSBA questions whether government agencies can contract with private contractors to perform “governmental functions.” You should always check with your solicitor regarding such requests. Section 506(d)
36. What fees can our school district charge in connection with records requests?
Mailing Costs. If you choose to mail records, postage may not exceed the actual cost of mailing. Section 1307(a)
Duplication. The law charged the Office of Open records with establishing Commonwealth and local agencies’ fees for duplication of records by photocopying, printing from electronic media or microfilm, copying onto electronic media, transmission by facsimile or other electronic means. Although it has not promulgated regulations, on November 24, 2008, the Office of Open Records posted a “Fee Structure” on its website which addresses these duplication fees as follows:
- School districts (agencies) may adopt a fee of from $.10 to $.25 per page for black and white letter-size photocopies. A two-sided copy is two pages. Your school district (agency) should adopt your photocopy fee as soon as possible.
- Agencies may charge “actual cost” for specialized documents such as blue prints or color copies or non-standard size pages
- Agencies may charge actual cost for copies provided by facsimile, microfiche or other media
Duplication or printing of original records for purposes of redaction of nonaccessible parts. Both PSBA and the Office of Open Records’ Fee Structure agree that school districts (agencies) MAY charge for these copies, which must be made in order to carry out necessary redaction. The Fee Structure then states that if a requester wants copies of the redacted records the agency may not charge additional fees, but must provide the redacted copies without additional charge. This position could be challenged at a later time. For now, PSBA recommends that agencies make a set of copies of any such redacted material when providing them to a requester for several reasons:
- Your redaction of a record means you have denied the request for access to the redacted portion. A requester could decide, after taking the copies, to appeal this denial and you should keep a copy so you have an exact record of what was and was not denied
- Since the Office of Open Records takes the position in its “Fee Structure” that agencies cannot charge for staff time spent in redacting records, it will save time to keep a copy for future requests relating to the same records. Instead of redacting the same records on multiple occasions, do not charge subsequent requesters unless they want copies and then make copies from the set you kept and charge for them
Complex and extensive data sets. Although Section 1307(b)(4) permits agencies to charge the reasonable market value for certain records such as geographic information systems, unless a media representative or a nonprofit association using the information for educational research requests it, the Fee Structure for the Office of Open Records is silent on the permissible charges for such records.
Certification. An agency may impose reasonable fees for official certification of copies of records where the requester asks for certification for the purpose of legally verifying the public record. Although it is PSBA’s position that this is a fee reserved to agency discretion, the Office of Open Records set a certification fee of $1 per record, not per page, but specified that certification fees do not include notarization fees. It is unclear whether it is the position of the Office of Open Records that a notary fee may be charged in some other amount. Section 1307(c).
Conversion to paper from electronic or nonpaper media. If:
- The requested record is only maintained electronically or in other nonpaper media (such as microfilm, video, etc.) then
- The duplication fee shall be the lesser cost of:
- Duplicating the record electronically or in its original nonpaper media OR
- Converting the record to paper UNLESS
- The requester asks for the duplicate to be in the more expensive medium, in which case the agency can charge this higher price for duplication
- Thus, if a computer disk copy costs less than a paper copy, you should copy it to a computer disk and charge for that. However, the requester may ask for a paper copy, in which case you may assess the per page duplication fee adopted by your district. Section 1307(d).
Enhanced electronic access. If a school district (agency) offers enhanced electronic access to records it may establish user fees provided they are reasonable, and approved by the Office of Open Records. This does not relieve an agency of the responsibility to provide access to records for inspection and duplication if the requester does not choose to use the enhanced electronic access option. The Office of Open Records fee structure instructs agencies on how to seek approval for these fees. Section 1307(e).
Fees for staff time and/or redaction. The statute states that no other fees may be imposed unless the agency incurs costs for complying with the request and the fees must be reasonable. Section 1307(g). It goes on to say agencies may not charge for the time it takes to review a record to determine if it is a record subject to access under the act.
- PSBA is of the opinion that reasonable charges for staff time spent in fulfilling a request, including redaction charges, are legitimate and can be charged to the requester. HOWEVER
- The Office of Open Records listed in its fee structure that no redaction fee or fees for staff time spent complying with a request may be imposed.
- For now, as discussed earlier in connection with burdensome requests, PSBA recommends agencies monitor the time spent on fulfillment of requests, excluding the time spent reviewing a record to determine if it is subject to access.
- If the applicable duplication fees are insufficient to recoup these costs, consider establishing a new fee schedule imposing reasonable charges for staff time spent redacting or otherwise fulfilling a request for access.
Prepayment of fees. A school district can require the person seeking access to prepay an estimate of the fees required to fulfill the request if they are expected to exceed $100. Section 1307(h)
Waiver. In any event, a school district can waive its fee charges. Section 1307(f).
37. Why would an agency want to charge for redaction time: isn’t that part of our normal responsibilities already paid for by taxes?
The potential problem can be illustrated as follows:
- A requester asks for all of the Public School Employees Retirement System Records showing the name, address, place of employment, birth date and salary of every single person presently employed by a PSERS member.
- Assume for this example, and based on the apparent requirements of the law, that the open-records officer determines all this information is in fact subject to access but it is found in records including exempt information as well.
- The open-records officer does not need to review each record to determine that it is necessary to redact social security numbers from these records prior to permitting access.
- However, someone will have to ensure that each and every social security number is in fact removed from these records prior to their inspection or duplication
- This will involve innumerable pages of information, whether stored on paper, microfilm or electronically and innumerable hours of staff time to carry this out.
PSBA is of the opinion that it is this kind of expense contemplated by the law when agencies were authorized by Section 1307(g) to charge reasonable fees for expenses necessarily incurred in complying with a request. A single requester should not be able to divert such significant agency resources from other agency work, to the detriment of all taxpayers.
38. What discretion does a school district have to release documents that contain information that is not publicly accessible under the Open Records Law?
The law provides that school districts may exercise their discretion to make any otherwise exempt record accessible for inspection and copying, provided all the following apply:
- The disclosure of the record is not prohibited under any of the following: federal or state law or regulation or judicial order or decree.
- The record is not protected by a privilege.
- The agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access. Section 506(d). If a school district determines to disclose a record that was not required to be disclosed, notice of the disclosure must be provided to any third party that provided the record to the district and the person that is the subject of the record. Section 707(a).
39. What is the process for appealing a school district’s decision to deny access to a public record?
If a written request for access to a record is denied or deemed denied, the requestor may file an appeal with the Office of Open Records within 15 business days of the mailing date of the district’s response or within 15 business days of a deemed denial. An appeals officer will be assigned by the Office of Open Records to review the denial or deemed denial. The Office of Open Records expects to post more information on this process by mid-December 2008. Section 1101. NOTE: If an open-records officer fails to issue a timely response to a request, it is “deemed denied” according to Section 901. It appears that an appeal from a “deemed denial” by a LOCAL AGENCY can go either to the Office of Open Records, under Section 1101 or directly to the court of common pleas where the agency is located pursuant to Section 1302 of the law.
40. What are the penalties, if any, for failure to comply with the Open Records Law?
A court may impose a civil penalty of not more than $1,500 if a district denied access to a public record, but only if it did so in bad faith. Section 1305(a). Additional penalties of up to $500 per day may also be imposed on an agency or public official that fails to promptly comply with a court order to provide a public record. Court costs and attorney fees may also be awarded by a court if the court determines the agency willfully or with wanton disregard deprived the requestor of access to a public record subject to access or otherwise acted in bad faith or the exemptions, privileges or defenses asserted by the district for its failure to provide access were not based on a reasonable interpretation of the law. Sanctions for frivolous appeals are also available to the court.