[HISTORY: Adopted by the Borough Council of the Borough of
Kutztown as indicated in article histories. Amendments noted where
applicable.]
[Adopted 12-16-2008 by Ord. No. 16-2008]
As used in this article, the following terms shall have the
meanings indicated:
The individual designated by the Pennsylvania Office of Open
Records to hear appeals from the denial of public records request
made to the Borough.
The Borough of Kutztown, Pennsylvania.
Commercial or financial information received by an agency
which is privileged or confidential and the disclosure of which would
cause substantial harm to the competitive position of the person that
submitted the information.
Any account, voucher or contract dealing with a receipt or disbursement
of funds by the Borough or the Borough'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 the Borough, including the name and title of the officer
or employee.
A financial audit report performed on behalf of the Borough,
however, this term does not include the work papers underlying the
audit.
Governmental actions designed to prevent, detect, respond
to and recover from acts of terrorism, major disasters and other emergencies,
whether or natural or man-made. The term includes activities relating
to the following:
Emergency preparedness and response, including preparedness
and response activities by volunteer medical, police, emergency management,
hazardous materials and fire personnel;
Intelligence activities;
Critical infrastructure protection;
Border security;
Ground, aviation and maritime transportation security;
Biodefense;
Detection of nuclear and radiological materials; and
Research on next-generation securities technologies.
The office established within the Department of Community
and Economic Development for the Commonwealth of Pennsylvania which
is charged with the implementation and enforcement of the Right-To-Know
Law.[1]
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.
Information protected by the attorney work product doctrine,
the attorney-client privilege, the doctor-patient privilege, the speech
and debate privilege or other privilege recognized by a court interpreting
the laws of the Commonwealth of Pennsylvania.
A record, including a financial record of the Borough that is not exempt under § 170-6 of this article or is not exempt from being disclosed under any other federal or state law or regulation or judicial order or decree or is not protected by a privilege.
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 Borough. 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.
A person that is a legal resident of the United States and
requests a record pursuant to this article or the Pennsylvania Right-To-Know
Law.
Access to a Pennsylvania record or the Borough's written
notice to a requestor granting, denying or partially granting and
partially denying access to a record.
The person designated by the Borough to receive public records
requests submitted to the Borough and otherwise comply with the Pennsylvania
Right-To-Know Law[2] on behalf of the Borough.
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 assault.
A violent or life-threatening act that violates the criminal
laws of the United States or any state that appears to be intended
to:
Information, including the formula, drawing, pattern, compilation,
including a customer list, program, device, method, technique or process
that:
Derives independent economic value, actual or potential, but
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
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.
[Amended 7-21-2009 by Ord. No. 4-2009]
The Council shall appoint the Right-To-Know Officer for the
Borough of Kutztown by resolution.
A.
The Right-To-Know Officer shall receive requests submitted to the
Borough.
B.
The Right-To-Know Officer shall direct requests to the appropriate
persons within the Borough or to the appropriate person from amongst
the Borough 's contractors, legal advisors and other such related
personnel.
C.
The Right-To-Know Officer shall track the Borough 's progress
in responding to requests, including the following:
(1)
Put the date of receipt on a written request received by the Borough.
(2)
Compute the day on which the five-day period for responding to the
request will expire and make a notation of that date on the written
request.
(3)
Maintain an electronic or paper copy of a written request, including
all documents submitted with the request until the request has been
fulfilled. If the request is denied, the written request shall be
maintained for 30 days or, if an appeal is filed, until a final determination
is issued under Section 1101(b) of the Pennsylvania Right-To-Know
Law.[1]
[1]
Editor's Note: See 65 P.S. § 67.101 et seq.
A.
A requestor desiring to obtain or view public records in the possession
or believed to be in the possession of the Borough shall make a request
to the Borough on the right-to-know request form in the format attached
hereto as Exhibit A[1] or as provided by the Office of Open Records.
[1]
Editor's Note: Exhibit A is on file in the Borough offices.
B.
All requests for public records shall be made to the Right-To-Know
Officer for the Borough.
C.
All requests should identify or describe the public records being
sought with sufficient specificity to enable the Borough to ascertain
which public records are being requested and shall include the name
and address to which the Borough should address its response.
D.
A written request need not include any explanation of the requestor's
reason for requesting a public record or its intended use of the public
record, unless otherwise required by law.
A.
The Borough has five business days from receipt of a written request
to either grant or deny the request.
B.
In response to a request for a public record, the Borough 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 Borough does not currently compile, maintain, format or organize
the record.
C.
Failure to act within the five-day time period shall equate to a
deemed denial of the request.
D.
Extension of time.
(1)
An agency may take up to an additional 30 calendar days after the
five business days to respond to a request for public records if the
Right-To-Know Officer sends written notice to the requestor within
the five business days that the agency needs additional time to process
the request as noted herein.
(2)
Situations necessitating extension of time.
(a)
Redaction of nonpublic information is required.
(b)
The records must be retrieved from a remote location.
(c)
Timely response cannot be accomplished within the time required
due to bona fide and specified staffing limitations.
(d)
Legal review is necessary.
(e)
The requestor has not complied with the Borough's policies
regarding access.
(f)
The requestor refuses to pay applicable fees.
(g)
The extent and nature of the request precludes a response within
the time period.
(3)
In the event the Borough has not responded to a request for which
it has received an extension of time within the thirty-day time period,
a deemed denial of the request shall take place on the 31st day.
(4)
Extension of time beyond the thirty-day time period. A requestor
may agree to a period in excess of 30 days for the processing of the
request, but is not required to do so. If such an agreement is reached
between the requestor and the Borough, the request shall be deemed
denied the day following the date agreed upon for production if the
response has not been provided by that date.
E.
Denial of a request. A denial of a request for a public record shall
set forth:
(1)
A description of the record requested.
(2)
The specific reasons for denial, including citation of legal authority,
if applicable.
(3)
The printed name, title, business address and telephone number and
signature of the Right-To-Know Officer who issued the denial.
(4)
The date of the denial.
(5)
The procedure to appeal the denial.
A.
The burden of proving that a record of the Borough is exempt from
public access shall be on the Borough and shall be proven by a preponderance
of the evidence.
B.
However, documents meeting any one of the following criteria are
exempt from production to requestors pursuant to the Right-To-Know
Law:
(2)
A record maintained by the Borough 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.
(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:
(a)
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;
(b)
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; consequences
assessments; antiterrorism protective measures and plans; counterterrorism
measures and plans; and security and response needs assessments; and
(c)
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.
(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 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.
(6)
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 or beneficiary or dependent
information.
(c)
The home address of a law enforcement officer or judge.
(d)
Nothing in this subsection 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 a Borough employee.
(e)
The Borough may redact the name or other identifying information
relating to an individual performing an undercover or covert law enforcement
activity from a record.
(7)
The following records relating to a Borough employee:
(a)
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.
(b)
A performance rating or review.
(c)
The result of a civil service or similar test administered by
the Borough 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 the Borough may be disclosed.
(d)
The employment application of an individual who is not hired
by the Borough.
(e)
Workplace support services program information.
(f)
Written criticisms of an employee.
(g)
Grievance material, including documents related to discrimination
or sexual harassment.
(h)
Information regarding discipline, demotion or discharge contained
in a personnel file. This subsection shall not apply to the final
action of the Borough that results in demotion or discharge.
(i)
An academic transcript.
(8)
A record pertaining to strategy or negotiations relating to labor
relations or collective bargaining and related arbitration proceedings.
This subsection shall not apply to a final or executed contract or
agreement between the parties in a collective bargaining procedure.
(a)
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 subsection shall not apply to the final 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 the Borough.
(10)
A record that reflects:
(a)
The internal, predecisional deliberations of an agency, its
members, employees or officials or predecisional deliberations between
agency members, employees or officials and members, employees or officials
of another agency, including predecisional 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 predecisional deliberations.
(b)
The strategy to be used to develop or achieve the successful
adoption of a budget, legislative proposal or regulation.
[1]
This subsection shall not apply to a written or Internet application
or other document that has been submitted to request commonwealth
funds.
[2]
This subsection shall not apply to the results of public opinion
surveys, polls, focus groups, marketing research or similar effort
designed to measure public opinion.
(11)
A record that constitutes or reveals a trade secret or confidential
proprietary information.
(12)
Notes and working papers prepared by or for a public official
or Borough 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.
(13)
Records that would disclose the identify 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 Borough, including lists
of potential donors compiled by the Borough to pursue donations, donor
profile information or personal identifying information relating to
a donor.
(14)
Academic transcripts.
(15)
Examinations, examination questions, scoring keys or answers
to examinations. This subsection 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)
Criminal investigations.
(a)
A record of the Borough relating to or resulting in a criminal
investigation, including:
[1]
Complaints of potential criminal conduct other than a private
criminal complaint.
[2]
Investigative materials, notes, correspondence, videos and reports.
[3]
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.
[4]
A record that includes information made confidential by law
or court order.
[5]
Victim information, including any information that would jeopardize
the safety of the victim.
[6]
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 the Borough or a law enforcement agency's
ability to secure an arrest, prosecution or conviction.
[e]
Endanger the life or physical safety of an individual.
(b)
This subsection shall not apply to information contained in
a police blotter as defined in 18 Pa.C.S.A. § 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.A. § 3754(b) (relating to accident prevention
investigations).
(17)
A record of the Borough relating to a noncriminal investigation,
including:
(a)
Complaints submitted to the Borough.
(b)
Investigative materials, notes, correspondence and reports.
(d)
A record that includes information made confidential by law.
(e)
Work papers underlying an audit.
(f)
A record that, if disclosed, would do any of the following:
[1]
Reveal the institution, progress or result of a Borough investigation,
except the imposition of a fine or civil penalty, the suspension,
modification or revocation of a license, permit, registration, certificate
or similar authorization issued by the Borough or an executed settlement
agreement unless the agreement is determined to be confidential by
a court.
[2]
Deprive a person of the right to an impartial adjudication.
[3]
Constitute an unwarranted invasion of privacy.
[4]
Hinder the Borough's ability to secure an administrative
or civil sanction.
[5]
Endanger the life or physical safety of an individual.
(18)
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. This subsection
shall not apply to a 911 recording, or a transcript of a 911 recording,
if the Borough or a court determines that the public interest in disclosure
outweighs the interest in nondisclosure.
(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)
Draft minutes of any meeting of the Borough until the next regularly
scheduled meeting of the Borough; minutes of an executive session
and any record of discussions held in executive session.
(22)
Real estate records.
(a)
The contents of real estate appraisals, engineering or feasibility
estimates, environmental reviews, audits or evaluations made for or
by the Borough relative to the following:
(b)
This subsection 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 group of individuals.
(24)
Library archive 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 Borough 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.A.
§ 513 (relating to competitive sealed proposals).
(27)
A record or information relating to a communication between
the Borough and its insurance carrier, administrative service organization
or risk management office. This subsection 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:
(a)
Identifying an individual who applies for or receives social
services; or
(b)
Relating to the following:
[1]
The type of social services received by an individual;
[2]
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
[3]
Eligibility to receive social services, including the individual's
income, assets, physical or mental health, age, disability, family
circumstances or record of abuse.
(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 subsection
shall not apply to correspondence between a member of the General
Assembly and a principal or lobbyist under 65 Pa.C.S.A. Ch.13A (relating
to lobbying disclosure).
(30)
A record identifying the name, home address or date of birth
of a child 17 years of age or younger.
(31)
The Borough shall not disclose the identity of an individual
performing an undercover or covert law enforcement activity.
A.
Postage. The Borough may charge the actual cost of postage incurred
as a result of mailing the response to the requester.
B.
Duplication. the Borough may charge a fee for duplication by photocopying,
printing from electronic media or microfilm, copying onto electronic
media, transmission by facsimile or other electronic means and other
means of duplication fees as established by the Office of Open Records.
C.
The Borough shall charge a fee of $1 per page for certification of
a document, if certification of the document is requested by the requestor,
and said fee shall be amended from time to time by resolution of the
Borough.
D.
Conversion of paper. For a record that is only maintained electronically
or in other nonpaper media, duplication fees shall be limited to the
lesser of the fee for duplication on paper or the fee for duplication
in the original media, unless the requestor specifically requests
for the record to be duplicated in the more expensive medium.
E.
Prepayment. If the estimate of the fees to be charged to a requestor
in connection with a request exceeds the amount of $100, the Borough
may require prepayment of the fees prior to granting a request for
said information.
A.
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 to
the Appeals Officer designated by the Office of Open Records for the
taking of same within 15 business days of the mailing date of the
Borough's denial or within 15 days of a deemed denial.
B.
Any appeals to the Office of Open Records or the appeals officer
designated by the Office of Open Records to hear appeals from determinations
of the Borough shall state the grounds upon which the requestor asserts
that the public is a public record, legislative record or financial
record and shall address any grounds stated by the Borough for delaying
or denying the request.
C.
All appeals to the Office of Open records should be made to:
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Commonwealth of Pennsylvania
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Office of Open Records
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Commonwealth Keystone Building
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400 North Street, Plaza Level
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Harrisburg, PA 17120-0225.
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