[HISTORY: Adopted by the Borough Council of the Borough of
Sewickley as indicated in article histories. Amendments noted where
applicable.]
[Adopted 12-15-2008 by Res. No. 2008-027]
A.
Purpose. The Council of the Borough of Sewickley recognizes the importance
of public records as the record of the Borough's actions and
the repository of information about the Borough. The public has the
right to access and procure copies of public records, with certain
exceptions, subject to law, Borough policy and administrative regulations.
B.
FINANCIAL RECORD
PUBLIC RECORD
RECORD
REQUESTER
RESPONSE
Definitions. As used in this article, the following terms shall have
the meanings indicated:
Any account, voucher or contract dealing with the receipt
or disbursement of funds or acquisition, use or disposal of services,
supplies, materials, equipment or property; the salary or other payments
or expenses paid to an officer or employee, including the individual's
name and title; and a financial audit report, excluding the audit's
underlying work papers.
A record, including a financial record, that is not protected
by a defined privilege or is not exempt from being disclosed under
one of the exemptions in Pennsylvania's Right-to-Know Law[1] or under other federal or state law or regulation, or
judicial decree or order.
Any recorded information, regardless of physical form or
characteristics, that documents a transaction or activity of the Borough
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 legal resident of the United States or an agency who requests
access to a record.
Granting of access to a record or the Borough's written
notice to a requester granting, denying or partially granting and
partially denying access to a requested record.
[1]
Editor's Note: See 65 P.S. § 67.101 et seq.
C.
Authority. The Council shall make the Borough's public records
available for access and duplication to a requester in accordance
with law, Borough policy and administrative regulations.
D.
Delegation of responsibility.
(1)
The Borough shall designate an Open Records Officer, who shall be
responsible to:
(a)
Receive written requests for access to records submitted to
the Borough.
(b)
Review and respond to written requests in accordance with law,
Borough policy and administrative regulations.
(c)
Direct requests to other appropriate individuals in the Borough
or in another agency.
(d)
Track the Borough's progress in responding to requests.
(e)
Issue interim and final responses to submitted requests.
(f)
Maintain a log of all record requests and their disposition.
(g)
Ensure Borough staff is trained to perform assigned job functions
relative to requests for access to records.
(2)
Upon receiving a written request for access to a record, the Open
Records Officer shall:
(a)
Note the date of receipt on the written request.
(b)
Compute and note on the written request the day on which the
five-business-day period for response will expire.
(c)
Maintain an electronic or paper copy of the written request,
including all documents submitted with the request, until the request
has been fulfilled.
(d)
If the written request is denied, maintain the written request
for 30 calendar days or, if an appeal is filed, until a final determination
is issued or the appeal is deemed denied.
E.
Guidelines.
(1)
Requesters may access and procure copies of the public records of
the Borough during the regular business hours of the administration
offices.
(2)
A requester's right of access does not include the right to
remove a record from the control or supervision of the Open Records
Officer.
(3)
The Borough shall not limit the number of records requested.
(4)
When responding to a request for access, the Borough is not required
to create a record that does not exist nor to compile, maintain, format
or organize a record in a manner which the Borough does not currently
use.
(5)
Information shall be made available to individuals with disabilities
in an appropriate format, upon request and with sufficient advance
notice.
(6)
The Borough shall post the following information at the administration
office and on the Borough's website:
(a)
Contact information for the Open Records Officer.
(b)
Contact information for Pennsylvania's Office of Open Records.
(c)
Copies of this policy and any administrative regulations and
procedures governing requests for access to the Borough's public
records.
(d)
The form to be used to file a request, with a notation that
the state Office of Open Records form may also be used if the Borough
decides to create its own form.
A.
A written request for access to a public record shall be submitted
in writing and addressed to the Borough's Open Records Officer.
B.
Written requests may be submitted to the Borough in person, by mail,
to a designated facsimile machine, and to a designated e-mail address.
D.
The Borough shall not require an explanation of the reason for the
request or the intended use of the requested record, unless otherwise
required by law.
A.
Borough employees shall be directed to forward requests for access
to public records to the Open Records Officer.
B.
Upon receipt of a written request for access to a record, the Open
Records Officer shall determine if the requested record is a public
record and if the Borough has possession, custody or control of that
record.
C.
The Open Records Officer shall respond as promptly as possible under
the existing circumstances, and the initial response time shall not
exceed five business days from the date the written request is received
by the Open Records Officer.
D.
If the Borough fails to respond to a request within five business
days of receipt, the request for access shall be deemed denied.
A.
Upon receipt of a written request for access, the Open Records Officer
will determine if any one of the following applies:
(1)
Redaction. The request for access requires redaction of a record.
(2)
Retrieval time/remote storage. The request for access requires retrieval
of a record stored in a remote location.
(3)
Staffing limitations. A timely response to the request for access
cannot be accomplished due to bona fide and specified staffing limitations.
(4)
Legal review. A legal review is necessary to determine whether the
requested record is a public record subject to access.
(5)
Lack of policy compliance. The requester has not complied with Borough
policy governing access to public records.
(6)
Failure to pay fees. The requester refuses to pay applicable established
fees.
(7)
Nature of request. The extent or nature of the request precludes
a response within the required time period.
B.
If the Open Records Officer determines that an extension of time
is required to respond to a request, in accordance with the factors
stated in law, written notice shall be sent within five business days
of receipt of request. The notice shall indicate that the request
for access is being reviewed, the reason that the review requires
an extension, a reasonable date when the response is expected, and
an estimate of applicable fees owed when the record becomes available.
C.
Up to a thirty-calendar-day extension for one of the listed reasons
does not require the consent of the requester. If the response is
not given by the specified date, it shall be deemed denied on the
day following that date.
D.
A requester may consent in writing to an extension that exceeds 30
calendar days, in which case the request shall be deemed denied on
the day following the date specified in the notice if the Open Records
Officer has not provided a response by that date.
A.
If the Open Records Officer determines that the request will be granted,
the response shall inform the requester that access is granted and
either include information on the regular business hours of the administration
office, provide electronic access, or state where the requester may
go to inspect the records or information electronically at a publicly
accessible site. The response shall include a copy of the fee schedule
in effect, a statement that prepayment of fees is required in a specified
amount if access to the records will cost in excess of $100, and the
medium in which the records will be provided.
B.
A public record shall be provided to the requester in the medium
requested if it exists in that form; otherwise, it shall be provided
in its existing medium. However, the Borough is not required to permit
use of its computers.
C.
The Open Records Officer may respond to a records request by notifying
the requester that the record is available through publicly accessible
electronic means or that the Borough shall provide access to inspect
the record electronically. If the requester, within 30 calendar days
following receipt of the Borough's notice, submits a written
request to have the record converted to paper, the Borough shall provide
access in printed form within five business days of receipt of the
request for conversion to paper.
D.
A public record that the Borough does not possess but is possessed
by a third party with whom the Borough has contracted to perform a
governmental function and which directly relates to that governmental
function shall be considered a public record of the Borough.
E.
If the Open Records Officer determines that a public record contains
information both subject to and not subject to access, the Open Records
Officer shall grant access to the information subject to access and
deny access to the information not subject to access. The Open Records
Officer shall redact from the record the information that is not subject
to access. The Open Records Officer shall not deny access to a record
if information is able to be redacted.
F.
If the Open Records Officer responds to a requester that a copy of
the requested record is available for delivery at the administration
office, and the requester does not retrieve the record within 60 calendar
days of the Borough's response, the Borough shall dispose of
the copy and retain any fees paid to date.
A.
When the Borough produces a record that is not a public record in
response to a request, the Open Records Officer shall notify any third
party that provided the record to the Borough, the person that is
the subject of the record, and the requester.
B.
The Open Records Officer shall notify a third party of a record request
if the requested record contains a trade secret or confidential proprietary
information, in accordance with law and administrative regulations.
A.
If the Open Records Officer denies a request for access to a public
record, whether in whole or in part, a written response shall be sent
within five business days of receipt of the request. The response
denying the request shall include the following:
(1)
Description of the record requested.
(2)
Specific reasons for denial, including a citation of supporting legal
authority.
(3)
Name, title, business address, business telephone number, and signature
of the Open Records Officer on whose authority the denial is issued.
(4)
Date of the response.
(5)
Procedure for the requester to appeal a denial of access.
B.
The Open Records Officer may deny a request for access to a record
if the requester has made repeated requests for that same record and
the repeated requests have placed an unreasonable burden on the Borough.
C.
The Open Records Officer may deny a request for access to a record
when timely access is not possible due to a disaster or when access
may cause physical damage or irreparable harm to the record. To the
extent possible, a record's contents shall be made accessible
even when the record is physically unavailable.
D.
Information that is not subject to access and is redacted from a
public record shall be deemed a denial.
If a written request for access to a public record is denied
or deemed denied, the requester may file an appeal with Pennsylvania's
Office of Open Records within 15 business days of the mailing date
of the Open Records Officer's response or deemed denial.
A.
The requester shall be responsible for duplication costs at the rate
of $0.25 per page for all duplicated materials. Additional fees relating
to the retrieval, certification and duplication of public records
shall be established by the state Office of Open Records. A copy of
this fee schedule shall be attached to this policy and incorporated
herein.
B.
No fee may be imposed for review of a record to determine whether
the record is subject to access under law.
C.
Prior to granting access, the Borough may require prepayment of estimated
fees when the fees required to fulfill the request are expected to
exceed $100.
D.
The Borough may waive duplication fees when the requester duplicates
the record or the Borough deems it is in the public interest to do
so.
A.
To determine if a requested record is exempt from access, the Open
Records Officer will consider and apply each exemption separately.
B.
The following records are exempt from public access by a requester
in accordance with the Right-To-Know Law.[1]
(1)
Loss of funds/physical harm/personal security. When the disclosure
of a record would result in the Borough's loss of federal or
state funds or would reasonably be likely to result in a substantial
and demonstrable risk of physical harm to or personal security of
an individual.
(2)
Public safety. When the disclosure of a record maintained in connection
with the military, homeland security, national defense, law enforcement
or other public safety activity would reasonably be likely to jeopardize
or threaten public safety or public protection activity, or a record
that is designated "classified" by an appropriate federal or state
military authority.
(3)
Safety/security of facilities. When the disclosure of a record creates
a reasonable likelihood of endangering the safety or 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
Infrastructures Protections, that are deemed critical due to their
nature and result from risk analysis, threat assessments, consequences
assessments, antiterrorism protective measures and plans, counterterrorism
measures and plans, and security 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)
Computer systems. When the disclosure of a record regarding computer
hardware, software and networks, including administrative and technical
records, would reasonably be likely to jeopardize computer security.
(5)
Medical information. When the disclosure of 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, to include drug tests; enrollment in
a health care program or program designed for participation by persons
with disabilities, including vocational rehabilitation; workers'
compensation and unemployment compensation; or related information
would disclose individually identifiable health information.
(6)
Personal identification information.
(a)
Disclosure of the following personal identification information:
[1]
A record containing all or part of an individual's social
security number; driver's license; 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)
Personal information that must be disclosed includes 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 Borough employee.
(c)
The Open Records Officer may redact from a record the name or
other identifying information relating to an individual performing
an undercover or covert law enforcement activity.
(7)
Certain employee information. Disclosure of 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.
(b)
A performance rating or review.
(c)
The result of a civil service or similar test administered by
a commonwealth agency, legislative agency or judicial agency. The
result of a civil service or similar test administered by a local
agency shall not be disclosed if restricted by a collective bargaining
agreement. Only test scores of individuals who obtained a passing
score on a test administered by a local agency may be disclosed.
(d)
The employment application of an individual who is not hired
by the Borough.
(e)
Workplace support services information.
(f)
Written criticisms of a Borough employee.
(g)
Grievance material, including documents related to discrimination
or sexual harassment.
(h)
Information regarding discipline, demotion or discharge contained
in a personnel file, except information that applies to the Borough's
final action that results in demotion or discharge.
(i)
An academic transcript.
(8)
Labor relations/negotiations/arbitration. Disclosure of a record
pertaining to strategy or negotiations relating to labor relations
or collective bargaining and related arbitration proceedings, unless
otherwise provided under collective bargaining agreement and the employee's
actual file. In the case of the arbitration of a dispute or grievance
under a collective bargaining agreement, disclosure of an exhibit
entered into evidence at an arbitration proceeding or a transcript
of the arbitration or the opinion.
This exemption does not apply to a final or executed contract
or agreement between the parties in a collective bargaining agreement
or to the final award or order of the arbitrator in a dispute or grievance
procedure.
(9)
Predecisional drafts. Disclosure of the draft of a bill, resolution,
regulation, statement of policy, management directive or ordinance,
or their amendments, prepared by or for the Borough.
(10)
Predecisional deliberations.
(a)
Disclosure of a record that reflects:
[1]
The internal, predecisional deliberations of the Borough, its
Council members, employees or officials, or predecisional deliberations
between Borough Council 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, subject to law governing open meetings.
Public records do include a record of any of the above that
is not exempt from access by law and which is presented to a quorum
for deliberation in accordance with law governing open meetings; a
written or Internet application or document that has been submitted
to request commonwealth funds; and the results of public opinion surveys,
polls, focus groups, marketing research or similar efforts designed
to measure public opinion.
[2]
The strategy to be used to develop or achieve the successful
adoption of a budget, legislative proposal or regulation.
(11)
Trade secret/confidential proprietary information. Disclosure
of a record that constitutes or reveals a trade secret or confidential
proprietary information.
(12)
Personal notes/working papers. Disclosure of notes and working
papers prepared by or for a Borough public official or 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)
Donor identity. Disclosure of records that would disclose the
identity of an individual who lawfully makes a donation to the Borough,
unless the donation is intended for or restricted to providing remuneration
or personal tangible benefit to a Borough public official or employee,
including lists of potential donors compiled by the Borough to pursue
donations; donor profile information; or personal identifying information
relating to a donor.
(14)
Unpublished academic works. Disclosure of 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 one of their faculty members, employees, guest speakers
or students.
(15)
Academic records. Disclosure of academic transcripts, examinations,
examination questions, scoring keys and answers to examinations, including
licensing and other examinations relating to the qualifications of
an individual, examinations, and examinations given in institutions
of higher education.
(16)
Criminal investigations. Disclosure of a record of the Borough
or 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 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 a victim.
(f)
A record that, if disclosed, would reveal the institution, progress
or result of a criminal investigation, except the filing of criminal
charges; deprive an individual of the right to a fair trial or impartial
adjudication; impair the ability to locate a defendant or codefendant;
hinder an agency's ability to secure an arrest, prosecution or
conviction; or endanger the life or physical safety of an individual.
This exemption does not apply to information contained in a
police blotter as defined in law and utilized or maintained by the
State Police; local, campus, transit or port authority police department
or other law enforcement agency; or in a traffic report, except as
provided by law.
(17)
Noncriminal investigations. Disclosure of a Borough record 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 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, certification or similar authorization
issued by an agency or an executed settlement unless the agreement
is determined to be confidential by a court; deprive a person of the
right to an impartial adjudication; constitute an unwarranted invasion
of privacy; hinder an agency's ability to secure an administrative
or civil sanction; or endanger the life or physical safety of an individual.
(18)
Emergency communications. Disclosure of 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, unless the agency or a court determines
that the public interest in disclosure outweighs the interest in nondisclosure.
(19)
DNA/RNA. Disclosure of DNA and RNA records.
(20)
Coroner/medical examiner. Disclosure of specific records and
reports of a coroner or medical examiner.
(21)
Draft minutes. Disclosure of draft minutes of any Council meeting
until the next regularly scheduled Council meeting, minutes of an
executive session, and any record of discussions held in executive
session.
(22)
Real estate appraisals/feasibility studies. Disclosure of the
contents of real estate appraisals, engineering or feasibility estimates,
environmental reviews, audits or evaluations made for or by the Borough
relative to the leasing, acquiring or disposing of real property or
an interest in real property; the purchase of public supplies or equipment
included in the real estate transaction; and construction projects.
This exemption does not apply to the documents listed above
once the decision is made to proceed with the lease, acquisition or
disposal of real property or an interest in real property, the purchase
of public supplies, or a construction project.
(23)
Library records. Disclosure of library and archive circulation
and order records of an identifiable individual or groups of individuals.
(24)
Library/museum materials. Disclosure of library archived and
museum materials or valuable or rare book collections or documents
contributed by gift, grant, bequest or devise, to the extent of any
limitations imposed by the donor as a condition of the contribution.
(25)
Archeological site/endangered species. Disclosure of 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)
Precontract award documents. Disclosure of a proposal pertaining
to Borough procurement or disposal of supplies, service 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 offerer requested
in an invitation for bid or request for proposals to demonstrate the
bidder's or offerer's economic capability; or the identity
of members, notes and other records of Borough proposal evaluation
committees established under law relating to competitive sealed proposals.
(27)
Insurance communications. Disclosure of a record or information
relating to a communication between the Borough and its insurance
carrier, administrative service organization or risk management office.
This exemption does 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)
Social services. Disclosure of a record or information identifying
an individual who applies for or receives social services, the type
of social services received by an individual, an individual's
application to receive social services, or eligibility to receive
social services.
(29)
General Assembly correspondence. Disclosure of correspondence
between an individual and a member of the General Assembly and records
accompanying the correspondence that would identify an individual
requesting assistance or constituent services, except for correspondence
between a member of the General Assembly and a principal or lobbyist
under law.
(30)
Minors. Disclosure of a record identifying the name, home address
or date of birth of a child 17 years of age or younger.
(31)
Borough does not possess record.
(a)
A request for a public record that the Borough does not possess
but is possessed by a third party with whom the Borough has contracted
to perform a governmental function and which relates directly to that
governmental function must be submitted to the Borough's Open
Records Officer.
(b)
If the Open Records Officer determines that the requested record
is subject to public access, the Open Records Officer will respond
and grant access in accordance with law, Borough policy and administrative
regulations.
(c)
The requester will pay the established duplication fee.
(d)
If the third party that possessed the requested public record
duplicated the record in response to the request, the Open Records
Officer will remit the fee to the third party.
(e)
The third party is not required to provide access to any other
of its records.
(32)
Transcripts of administrative proceedings.
(a)
Prior to an adjudication becoming final, binding and nonappealable,
a transcript of an administrative proceeding will be provided to a
requester by the proceeding's stenographer.
(b)
To request access to a pre-final adjudication transcript possessed
by a stenographer that is subject to disclosure, the requester must
directly contact the stenographer and pay the fees assessed by the
stenographer.
(c)
After an adjudication becomes final, binding and nonappealable,
a transcript of an administrative proceeding will be provided to a
requester, and the established duplication fee will be charged.
(33)
Trade secrets/confidential proprietary information.
(a)
When a third party provides a record to the Borough and includes
a written statement signed by its representative that the record contains
a trade secret or confidential proprietary information, the Open Records
Officer will notify that third party of a request for access to that
record.
(b)
"Trade secret" is defined as information, including a formula;
drawing; pattern; compilation such as a customer list; program; device;
method; technique; or process that derives independent economic value,
actual or potential, from not being generally known to and not being
readily ascertainable by proper means by other persons who can obtain
economic value from its disclosure or use and is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
The term includes data processing software obtained by the Borough
under a licensing agreement prohibiting disclosure.
(c)
Confidential proprietary information is defined as commercial
or financial information that is privileged or confidential and the
disclosure of which would cause substantial harm to the competitive
position of the individual that submitted the information.
(d)
The Open Records Officer will provide notice within five business
days of receipt of the request. The third party will have five business
days from receipt of the Open Records Officer's notice to provide
input on the release of the requested record.
(e)
The Open Records Officer will provide access to the record or
will deny the request for access within 10 business days of providing
notice to the third party and will notify the third party of the Open
Records Officer's decision.
(34)
Computer access. The Open Records Officer will not grant requests
for access to the Borough's or its employees' computers.
(35)
Discretionary access.
(a)
The Open Records Officer may exercise discretion and make an
otherwise exempt record accessible in response to a request.
(b)
The exempted record will be made accessible for access and duplication,
in accordance with law and Borough policy, if all of the following
apply:
[1]
Disclosure of the record is not prohibited by federal or state
law or regulation or by judicial order or decree.
[2]
The record is not protected by privilege, to include the attorney-work
product doctrine; attorney-client privilege; doctor-patient privilege;
speech and debate privilege; or other privilege recognized by a relevant
court.
[3]
The Borough Manager determines that the public interest favoring
access outweighs any individual, Borough or public interest that may
favor restriction of access.
[1]
Editor's Note: See 65 P.S. § 67.101 et seq.
The Open Records Officer will not disclose the identity of an
individual performing an undercover or covert law enforcement activity.
This policy shall only apply to requests for records made pursuant
to Pennsylvania's Right-to-Know Law, codified at 65 P.S. § 66.1
et seq., as repealed and replaced by 65 P.S. § 67.101 et
seq.
