[Ord. 08.04.2009, 8/4/2009, § 1]
The following words and phrases shall be defined as follows:
A commonwealth agency, a local agency, a judicial agency
or a legislative agency, or, when applicable, Hepburn Township.
As follows: For Hepburn Township, the appeals officer designated
herein.
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 of the following:
Any of the following:
The Office of Open Records established herein.
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.
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 this commonwealth.
A record, including a financial record, of a commonwealth
or local agency that:
A person that is a legal resident of the United States and
requests a record pursuant to this act. The term includes an agency.
Access to a record or an agency's written notice to
a requester granting, denying or partially granting and partially
denying access to a record.
[Ord. 08.04.2009, 8/4/2009, § 2]
1.
General Rule. A record in the possession of this local agency shall
be presumed to be a public record. The presumption shall not apply
if:
2.
Nature of Document. Nothing in this act shall 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.
[Ord. 08.04.2009, 8/4/2009, § 3]
1.
Open Records Officer.
A.
Establishment. Hepburn Township shall designate an official or employee
to act as the open records officer by resolution. Said open records
officer shall be Kenneth Andrus and/or any other individual as determined
by the Township, from time to time, by resolution.
B.
Functions.
(1)
The open records officer shall receive requests submitted to
the agency under this act, direct requests to other appropriate persons
within the agency or to appropriate persons in another agency, track
the agency's progress in responding to requests and issue interim
and final responses under this act.
(2)
Upon receiving a request for a public record, legislative record
or financial record, the open records officer shall do all of the
following:
(a)
Note the date of receipt on the written request.
(b)
Compute the day on which the five-day period under § 1-405 will expire and make a notation of that date on the written request.
(c)
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 § 1-406, Subsection 1B, or the appeal is deemed denied.
(d)
Create a file for the retention of the original request, a copy
of the response, a record of written communications with the requester
and a copy of other communications. This subparagraph shall only apply
to commonwealth agencies.
2.
Appeals Officer.
A.
Hepburn Township designates Terry Mutchler and/or his/her successor
of the Office of Open Records, Commonwealth Keystone Building, 400
North Street, Plaza Level, Harrisburg, Pennsylvania, as the appeals
officer for all appeals from requests under the Right-to-Know Law.
B.
Authority. Hepburn Township may promulgate regulations and policies
necessary for the agency to implement this act.
C.
Posting. The following information shall be posted at each agency
and, if the agency maintains an internet website, on the agency's
internet website:
D.
Uniform Form. Hepburn Township adopts the uniform form which developed
by the Office of Open Records in addition to any form used by the
agency to file a request under this act.
E.
Requests.
(1)
Disruptive Requests.
(2)
Disaster or Potential Damage.
(a)
An agency may deny a requester access:
1)
When timely access is not possible due to fire, flood or other
disaster; or,
2)
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.
(b)
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.
(3)
Agency Discretion. An agency may exercise its discretion to
make any otherwise exempt record accessible for inspection and copying
under this section, if all of the following apply:
(4)
Agency Possession.
(a)
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
this act, shall be considered a public record of the agency for purposes
of this act.
(b)
Nothing in this act shall be construed to require access to
any other record of the party in possession of the public record.
(c)
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. Upon a determination that the record is subject to access
under this act, the open records officer shall assess the duplication
fee established herein and upon collection shall remit the fee to
the party in possession of the record if the party duplicated the
record.
F.
Retention of Records. Nothing in this act shall be construed to modify,
rescind or supersede any record retention policy or disposition schedule
of an agency established pursuant to law, regulation, policy or other
directive.
[Ord. 08.04.2009, 8/4/2009, § 4]
1.
General Rule. Unless otherwise provided by law, a public record,
legislative record or financial record shall be accessible for inspection
and duplication in accordance with this act. 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. Public records, legislative records or financial records
shall be available for access during the regular business hours of
an agency.
2.
Construction. Nothing in this Part shall be construed to require
access to any computer either of an agency or individual employee
of an agency.
3.
Requests. Agencies may fulfill verbal, written or anonymous verbal
or written requests for access to records under this act. If the requester
wishes to pursue the relief and remedies provided for in this act,
the request for access to records must be a written request.
4.
Written Requests. A written request for access to records may be
submitted in person, by mail, by e-mail, by facsimile or, to the extent
provided by agency rules, any other electronic means. A written request
must be addressed to the open records officer designated. Employees
of an agency shall be directed to forward requests for records to
the open records officer. 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.
5.
Electronic Access.
A.
General Rule. Hepburn Township may make its records available through
any publicly accessible electronic means.
B.
Response.
(1)
Hepburn Township may respond to a request by notifying the requester
that the record is available through publicly accessible electronic
means or that the agency will provide access to inspect the record
electronically.
(2)
If the requester is unwilling or unable to access the record
electronically, the requester may, within 30 days following receipt
of the agency notification, submit a written request to the agency
to have the record converted to paper. The agency shall provide access
to the record in printed form within five days of the receipt of the
written request for conversion to paper.
6.
Creation of Record. When responding to a request for access, an 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.
7.
Redaction. If an agency determines that a public record, legislative record or financial record contains information which is subject to access as well as information which is not subject to access, the agency's response shall grant access to the information which is subject to access and deny access to the information which is not subject to access. If the information which is not subject to access is an integral part of the public record, legislative record or financial record and cannot be separated, the agency shall redact from the record the information which is not subject to access, and the response shall grant access to the information which is subject to access. The agency may not deny access to the record if the information which is not subject to access is able to be redacted. Information which an agency redacts in accordance with this subsection shall be deemed a denial under § 1-405.
8.
Production of Certain Records.
A.
General Rule. If, in response to a request, 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.
9.
Exceptions for Public Records.
A.
Burden of Proof.
(1)
The burden of proving that a record of a commonwealth agency
or local agency is exempt from public access shall be on the commonwealth
agency or local agency receiving a request by a preponderance of the
evidence.
(2)
The burden of proving that a legislative record is exempt form
public access shall be on the legislative agency receiving a request
by a preponderance of the evidence.
(3)
The burden of proving that a financial record of a judicial
agency is exempt from public access shall be on the judicial agency
receiving a request by a preponderance of the evidence.
B.
Exceptions. Except as provided herein, the following are exempt from
access by a requester under this act:
(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.
(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 Protection, which are deemed critical due to their
nature and which result from risk analysis; threat assessments; consequences
assessments; antiterrorism protective measures and plans; counter
terrorism measures and plans; and security and response needs assessments.
(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 reasonably be 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)
(a)
The following personal identification information:
1)
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.
2)
A spouse's name, marital status, beneficiary or dependent
information.
3)
The home address of a law enforcement officer or judge.
(b)
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.
(c)
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.
(7)
The following records relating to an agency 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
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.
(d)
The employment application of an individual who is not hired
by the agency.
(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 subparagraph shall not apply to the final
action of an agency that results in demotion or discharge.
(i)
An academic transcript.
(8)
(a)
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.
(b)
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 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 an agency.
(10)
(a)
A record that reflects:
1)
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.
2)
The strategy to be used to develop or achieve the successful
adoption of a budget, legislative proposal or regulation.
(b)
Subparagraph (10)(a)1) shall apply to agencies subject to 65 Pa.C.S.A. Chapter 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S.A. Chapter 7. A record which is not otherwise exempt from access under this act and which is presented to quorum for deliberation in accordance with 65 Pa.C.S.A. Chapter 7 shall be a public record.
(c)
This subparagraph shall not apply to a written or internet application
or other document that has been submitted to request commonwealth
funds.
(d)
This subparagraph 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 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.
(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.
(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)
(a)
Academic transcripts.
(b)
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:
(a)
Complaints of potential criminal conduct other than a private
criminal complaint.
(b)
Investigative materials, notes, correspondence, videos and reports.
(c)
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.
(d)
A record that includes information made confidential by law
or court order.
(e)
Victim information, including any information that would jeopardize
the safety of the victim.
(f)
A record that, if disclosed, would do any of the following:
1)
Reveal the institution, progress or result of a criminal investigation,
except the filing of criminal charges.
2)
Deprive a person of the right to a fair trial or an impartial
adjudication.
3)
Impair the ability to locate a defendant or codefendant.
4)
Hinder an agency's ability to secure an arrest, prosecution
or conviction.
5)
Endanger the life or physical safety of an individual.
6)
This paragraph 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. § 3754b (relating to accident prevention
investigations).
(17)
A record of an agency relating to a noncriminal investigation,
including:
(a)
Complaints submitted to an agency.
(b)
Investigative materials, notes, correspondence and reports.
(c)
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.
(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 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.
2)
Deprive a person of the right to an impartial adjudication.
3)
Constitute an unwarranted invasion of privacy.
4)
Hinder an agency's ability to secure an administrative
or civil sanction.
5)
Endanger the life or physical safety of an individual.
(18)
(a)
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.
(b)
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.
(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
facsimiles 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.
(22)
(a)
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:
(b)
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)
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.A.
§ 513 (relating to competitive sealed proposals).
(24)
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.
(25)
A record or information: identifying an individual who applies
for or receives social services; or 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.
(c)
Eligibility to receive social services, including the individual's
income, assets, physical or mental health, age, disability, family
circumstances or record of abuse.
(26)
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.A. Chapter 13A
(relating to lobbyist disclosure).
(27)
A record identifying the name, home address or date of birth
of a child 17 years of age or younger.
C.
Financial Records. The exceptions set forth in Subsection 9B shall
not apply to financial records, except that an agency may redact that
portion of a financial record protected. An agency shall not disclose
the identity of an individual performing an undercover or covert law
enforcement activity.
D.
Aggregated Data. The exceptions set forth in Subsection 10B(1)(b)
shall not apply to aggregated data maintained or received by an agency,
except for data protected.
E.
Construction. In determining whether a record is exempt from access
under this section, an agency shall consider and apply each exemption
separately.
[Ord. 08.04.2009, 8/4/2009, § 5]
1.
General Rule. 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. All applicable
fees shall be paid in order to receive access to the record requested.
The time for response shall not exceed five business days from the
date the written request is received by the open records officer for
an agency. If the agency fails to send the response within five business
days of receipt of the written request for access, the written request
for access shall be deemed denied.
2.
Extension of Time.
A.
Determination. Upon receipt of a written request for access, the
open records officer for an agency shall determine if one of the following
applies:
(1)
The request for access requires redaction of a record.
(2)
The request for access requires the retrieval of a record stored
in a remote location.
(3)
A timely response to the request for access cannot be accomplished
due to bona fide and specified staffing limitation.
(4)
A legal review is necessary to determine whether the record
is a record subject to access under this act.
(5)
The requester has not complied with the agency's policies
regarding access to records.
(6)
The requester refuses to pay applicable fees authorized by this
act.
(7)
The extent or nature of the request precludes a response within
the required time period.
B.
Notice.
(1)
Upon a determination that one of the factors listed in Subsection
2A applies, the open records officer shall send written notice to
the requester within five business days of receipt of the request
for access under Subsection 2A.
(2)
The notice shall include a statement notifying the requester
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 applicable fees owed when the record becomes available.
If the date that a response is expected to be provided is in excess
of 30 days, following the five business days allowed herein, 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.
(3)
If the requester agrees to the extension, the request shall
be deemed denied on the day following the date specified in the notice
if the agency has not provided a response by that date.
3.
Denial. If an agency's response is a denial of a written request
for access, whether in whole or in part, the denial shall be issued
in writing and shall include:
A.
A description of the record requested.
B.
The specific reasons for the denial, including a citation of supporting
legal authority.
C.
The typed or printed name, title, business address, business telephone
number and signature of the open records officer on whose authority
the denial is issued.
D.
Date of the response.
E.
The procedure to appeal the denial of access under this act.
5.
Record Discard. If an agency response to a requester states that
copies of the requested records are available for delivery at the
office of an agency and the requester fails to retrieve the records
within 60 days of the agency's response, the agency may dispose
of any copies which have not been retrieved and retain any fees paid
to date.
[Ord. 08.04.2009, 8/4/2009, § 6]
1.
Filing of Appeal.
A.
Authorization. If a written request for access to a record is denied
or deemed denied, the requester may file an appeal with the Office
of Open Records within 15 business days of the mailing date of the
agency's response or within 15 business days of a deemed denial.
The appeal shall 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.
B.
Determination.
(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 filed under
Subsection 1A.
(2)
If the appeals officer fails to issue a final determination
within 30 days, the appeal is deemed denied.
(3)
Prior to issuing a final determination, a hearing may be conducted.
The determination by the appeals officer shall be a final order. The
appeals officer shall provide a written explanation of the reason
for the decision to the requester and the agency.
C.
Direct Interest.
(1)
A person other than the agency or requester with a direct interest
in the record subject to an appeal under this section 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 appear before the appeals officer
or to file information in support of the requester's or agency's
position.
(3)
Copies of the written request shall be sent to the agency and
the requester.
2.
Appeals Officer.
A.
Duties. An appeals officer shall do all of the following:
(1)
Set a schedule for the requester and the open records officer
to submit documents in support of their positions.
(2)
Review all information filed relating to the request. The appeals
officer may hold a hearing. A decision to hold or not to hold a hearing
is not appealable. The appeals officer may admit into evidence testimony
evidence and documents that the appeals officer believes to be reasonably
probative and relevant to an issue in dispute. The appeals officer
may limit the nature and extent of evidence found to be cumulative.
(3)
Consult with agency counsel as appropriate.
(4)
Issue a final determination on behalf of the Office of Open
Records or other agency.
[Ord. 08.04.2009, 8/4/2009, § 7]
1.
Local Agencies.
A.
Within 30 days of the mailing date of the final determination of the appeals officer relating to a decision of a local agency issued under § 1-406, Subsection 1B, or of the date a request for access is deemed denied, a requester or local agency may file a petition for review or other document as required by rule of court with the Court of Common Pleas for the County where the local agency is located. 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.
B.
Stay. A petition for review under this section shall stay the release
of documents until a decision under Subsection 1A is issued.
2.
Notice and Records.
A.
Notice. An agency, the requester and the Office of Open Records or
designated appeals officer shall be served notice of actions commenced
in accordance with this section shall have an opportunity to respond
in accordance with applicable court rules.
3.
Court Costs and Attorney Fees.
A.
Reversal of Agency Determination. 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 attorney
fees and costs of litigation or an appropriate portion thereof to
a requester if the court finds either of the following:
(1)
The agency receiving the original request willfully or with
wanton disregard deprived the requester of access to a public record
subject to access or otherwise acted in bad faith under the provisions
of this act.
(2)
The exemptions, exclusions or defenses asserted by the agency
in its final determination were not based on a reasonable interpretation
of law.
B.
Sanctions for Frivolous Requests or Appeals. The court may award
reasonable attorney fees and costs of litigation or an appropriate
portion thereof to an agency if the court finds that the legal challenge
under this Part was frivolous.
C.
Other Sanctions. Nothing in this act shall prohibit a court from
imposing penalties and costs in accordance with applicable rules of
court.
4.
Civil Penalty.
A.
Denial of Access. A court may impose a civil penalty of not more
than $1,500 if an agency denied access to public record in bad faith.
B.
Failure to Comply with Court Order. An agency or public official
who does not promptly comply with a court order under this act is
subject to a civil penalty of not more than $500 per day until the
public records are provided.
5.
Immunity.
A.
General Rule. Except as provided in Subsection 4 and other statutes governing the release of records, no agency, public official or public employee shall be liable for civil penalties resulting from compliance or failure to comply with this act.
B.
Schedules. No agency, public official or public employee shall be
liable for civil or criminal damages or penalties under this act for
complying with any written public record retention and disposition
schedule.
6.
Fee Limitations.
A.
Postage. Fees for postage may not exceed the actual cost of mailing.
B.
Duplication.
(1)
Fees for duplication by photocopying, printing from electronic
media or microfilm, copying onto electronic media, transmission by
facsimile or other electronic means and other means of duplication
shall be as for: per resolution dated __________, or other successor
resolutions establishing the same.
(2)
Fees for copying may be based on the reasonable market value
of the same or closely related data sets.
(3)
(a)
A request by an individual employed by or connected with a newspaper
or magazine of general circulation, weekly publication, press association
or radio or television station, for the purpose of obtaining information
for publication or broadcast.
(b)
A request by a nonprofit organization for the conduct of educational
research.
C.
Certification. An agency may impose reasonable fees for official
certification of copies if the certification is at the behest of the
requester and for the purpose of legally verifying the public record.
D.
Conversion to Paper. If a record is only maintained electronically
or in other nonpaper media, duplication fees shall be limited to the
lesser of the fee for duplication on paper or the fee for duplication
in the original media as provided by Subsection 6B unless the requester
specifically requests for the record to be duplicated in the more
expensive medium.
E.
Enhanced Electronic Access. If an agency offers enhanced electronic
access to record in addition to making the records accessible for
inspection and duplication by a requester as required by this act,
the agency may establish user fees specifically for the provision
of the enhanced electronic access, but only to the extent that the
enhanced electronic access is in addition to making the records accessible
for inspection and duplication by a requester as required by this
act. The user fees for enhanced electronic access may be a flat rate,
a subscription fee for a period of time, a per-transaction fee, a
fee based on the cumulative time of system access or any other reasonable
method and any combination thereof. The user fees for enhanced electronic
access must be reasonable, 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.
G.
Limitations. Except as otherwise provided by statute, no other fees
may be imposed unless the agency necessarily incurs costs for complying
with the request, and such fees must be reasonable. No fee may be
imposed for an agency's review of a record to determine whether
the record is a public record, legislative record or financial record
subject to access in accordance with this act.
H.
Prepayment. Prior to granting a request for access in accordance
with this act, an agency may require a requester to prepay an estimate
of the fees authorized under this section if the fees required to
fulfill the request are expected to exceed $100.
[Ord. 08.04.2009, 8/4/2009, § 8]
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.
