[Ord. 232, 11/12/2008, § 1]
The following words and phrases shall be defined as follows:
A proceeding by an agency the outcome of which is required
to be based on a record or documentation prescribed by law or in which
a statute or regulation is particularized in application to individuals.
The term includes an appeal.
A Commonwealth agency, a local agency, a judicial agency
or a legislative agency, or when applicable Old Lycoming Township.
A tabulation of data which relate to broad classes, groups
or categories so that it is not possible to distinguish the properties
of individuals within those classes, groups or categories.
As follows:
For a Commonwealth agency or a local agency, the appeals officer
designated under § 1-403.3.
For a judicial agency, the individual designated under § 1-403.3.
For a legislative agency, the individual designated under § 1-403.3.
For the Attorney General, State Treasurer, Auditor General and
local agencies in possession of criminal investigative records, the
individual designated under § 1-403.3.
Any of the following:
Any office, department, authority, board, multi-state agency
or commission of the executive branch; an independent agency; and
a State-affiliated entity. The term includes:
The Governor's office.
The Office of Attorney General, the Department of the Auditor
General and the Treasury Department.
An organization established by the Constitution of Pennsylvania,
a statute or an executive order which performs or is intended to perform
an essential governmental function.
The term does not include a judicial or legislative agency.
Commercial or financial information received by an agency:
Any of the following:
Governmental actions designed to prevent, detect, respond
to and recover from acts of terrorism, major disasters and other emergencies,
whether 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.
Research on next-generation securities technologies.
Any board, commission or other agency or officer of the Commonwealth,
that is not subject to the policy, supervision, and control of the
Governor. The term does not include a legislative or judicial agency.
A court of the Commonwealth or any other entity or office
of the unified judicial system.
Any of the following:
The Senate.
The House of Representatives.
The Capitol Preservation Committee.
The Center for Rural Pennsylvania.
The Joint Legislative Air and Water Pollution Control and Conservation
Committee.
The Joint State Government Commission.
The Legislative Budget and Finance Committee.
The Legislative Data Processing Committee.
The Independent Regulatory Review Commission.
The Legislative Reference Bureau.
The Local Government Commission.
The Pennsylvania Commission on Sentencing.
The Legislative Reapportionment Commission.
The Legislative Office of Research Liaison.
The Legislative Audit Advisory Commission.
Any of the following relating to a legislative agency or
a standing committee, subcommittee or conference committee of a legislative
agency:
A financial record.
A bill or resolution that has been introduced and amendments
offered thereto in committee or in legislative session, including
resolutions to adopt or amend the rules of a chamber.
Fiscal notes.
A co-sponsorship memorandum.
The journal of a chamber.
The minutes of, record of attendance of members at a public
hearing or a public committee meeting and all recorded votes taken
in a public committee meeting.
The transcript of a public hearing when available.
Executive nomination calendars.
The rules of a chamber.
A record of all recorded votes taken in a legislative session.
Any administrative staff manuals or written policies.
An audit report prepared pursuant to the act of June 30, 1970,
(LP.L.442, No. 151) entitled, "an act implementing the provisions
of Article VIII, Section 10 of the Constitution of Pennsylvania, by
designating the Commonwealth officers who shall be charged with the
function of auditing the financial transactions after the occurrence
thereof of the Legislative and Judicial branches of the government
of the Commonwealth, establishing a Legislative Audit Advisory Commission,
and imposing certain powers and duties on such commission."
Final or annual reports required by law to be submitted to the
General Assembly.
Legislative budget and finance committee reports.
Daily legislative session calendars and marked calendars.
A record communicating to an agency the official appointment
of a legislative appointee.
A record communicating to the appointing authority the resignation
of a legislative appointee.
Proposed regulations, final-form regulations and final-omitted
regulations submitted to a legislative agency.
The results of public opinion surveys, polls, focus groups,
marketing research or similar efforts designed to measure public opinion
funded by a legislative agency.
Any of the following:
The Office of Open Records established in § 1-408.
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:
Information, regardless of physical form or characteristics,
that documents a transaction or activity of an agency and that is
created, received or retained pursuant to law or in connection with
a transaction, business or activity of the agency. The term includes
a document, paper, letter, map, book, tape, photograph, film or sound
recording, information stored or maintained electronically and a data-processed
or image-processed document.
A person that is a legal resident of the United States and
requests a record pursuant to this Part. 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.
Cash assistance and other welfare benefits, medical, mental
and other health care services, drug and alcohol treatment, adoption
services, vocational services and training, occupational training,
education services, counseling services, workers' compensation services
and unemployment compensation services, foster care services, services
for the elderly, services for individuals with disabilities and services
for victims of crimes and domestic violence.
A Commonwealth authority or Commonwealth entity. The term
includes the Pennsylvania Higher Education Assistance Agency and any
entity established thereby, the Pennsylvania Gaming Control Board,
the Pennsylvania Game Commission, the Pennsylvania Fish and Boat Commission,
the Pennsylvania Housing Finance Agency, the Pennsylvania Municipal
Retirement Board, the State System of Higher Education, a community
college, the Pennsylvania Turnpike Commission, the Pennsylvania Public
Utility Commission, the Pennsylvania Infrastructure Investment Authority,
the State Public School Building Authority, the Pennsylvania Interscholastic
Athletic Association and the Pennsylvania Educational Facilities authority.
The term does not include a State-related institution.
Includes:
A violent or life-threatening act that violates the criminal
laws of the United States or any state and appears to be intended
to:
Information, including a formula, drawing, pattern, compilation,
including 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.
Is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
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The term includes data processing software obtained by an agency
under a licensing agreement prohibiting disclosure.
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[Ord. 232, 11/12/2008, § 2]
1.
General Rule. A record in the possession of a Commonwealth agency
or local agency shall be presumed to be a public record. The presumption
shall not apply if:
2.
Nature of Document. Nothing in this Part 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. 232, 11/12/2008, § 3]
1.
Scope of Part. This Part applies to all agencies.
2.
Open-Records Officer.
A.
Establishment. Old Lycoming Township shall designate an official
or employee to act as the open-records officer by resolution.
B.
Functions.
(1)
The open-records officer shall receive requests submitted to
the agency under this Part, 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 Part.
(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 § 1-406.1.B 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.
3.
Appeals Officer.
A.
Old Lycoming Township shall designate by resolution, an appeals officer
under § 1-406.2 for all appeals from requests under the
Right-to-Know Law.
B.
Authority. An agency may promulgate regulations and policies necessary
for the agency to implement this Part. The Office of Open Records
may promulgate regulations relating to appeals involving a Commonwealth
agency or local agency.
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.
(1)
Commonwealth and Local Agencies. The Office of Open Records
shall develop a uniform form which shall be accepted by all Commonwealth
and local agencies in addition to any form used by the agency to file
a request under this Part. The uniform form shall be published in
the Pennsylvania Bulletin and on the Office of Open Record's internet
website.
E.
Requests.
(1)
Disruptive Requests.
(2)
(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 Part, shall be considered a public record of the agency for purposes
of this Part.
(b)
Nothing in this Part 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 Part, the open records officer shall assess the duplication
fee established under § 1-407.7.B 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 Part 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. 232, 11/12/2008, § 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 Part. 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 Part. If the
requester wishes to pursue the relief and remedies provided for in
this Part, 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. In addition to the requirements of § 1-404.1,
an agency may make its records available through any publicly accessible
electronic means.
B.
Response.
(1)
In addition to the requirements of § 1-404.1, an agency
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.
B.
Transcripts.
(1)
Prior to an adjudication becoming final, binding and nonappealable,
a transcript of an administrative proceeding shall be provided to
a requester by the agency stenographer or a court reporter, in accordance
with agency procedure or an applicable contract.
(2)
Following an adjudication becoming final, binding and nonappealable,
a transcript of an administrative proceeding shall be provided to
a requester in accordance with the duplication rates established in
§ 1-407.7.B.
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 in Subsections 9.C and 9.B(2), the
following are exempt from access by a requester under this Part:
(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 subparagraph 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. Chapter 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S Chapter 7. A record which is not otherwise exempt from access under this Part and which is presented to quorum for deliberation in accordance with 65 Pa.C.S. 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 a arrest, prosecution or
conviction.
5)
Endanger the life or physical safety of an individual.
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This subparagraph shall not apply to information contained in
a police blotter as defined in 18 Pa.C.S § 9102 (relating
t o 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 § 3754b relating to accident prevention
investigations).
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(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 subparagraph 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 subparagraph shall not apply once the decision is made
to proceed with the lease, acquisition or disposal of real property
or an interest in real property or the purchase of public supply or
construction project.
(23)
Library and archive circulation and order records of an identifiable
individual or groups of individuals.
(24)
Library archived and museum materials, or valuable or rare book
collections or documents contributed by gift, grant, bequest or devise,
to the extent of any limitations imposed by the donor as a condition
of the contribution.
(25)
A record identifying the location of an archeological site or
an endangered or threatened plant or animal species if not already
known to the general public.
(26)
A proposal pertaining to agency procurement or disposal of supplies,
services or construction prior to the award of the contract or prior
to the opening and rejection of all bids; financial information of
a bidder or offeror requested in an invitation for bid or request
for proposals to demonstrate the bidder's or offeror's economic capability;
or the identity of members, notes and other records of agency proposal
evaluation committees established under 62 Pa.C.S. § 513
(relating to competitive sealed proposals).
(27)
A record or information relating to a communication between
an agency and its insurance carrier, administrative service organization
or risk management office. This subparagraph 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.
(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.
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 subparagraph
shall not apply to correspondence between a member of the General
Assembly and a principal or lobbyist under 65 Pa.C.S. Chapter 13A
(relating to lobbyist disclosure).
(30)
A record identifying the name, home address or date of birth
of a child 17 years of age or younger.
C.
Financial Records. The exceptions set forth in Paragraph B shall
not apply to financial records, except that an agency may redact that
portion of a financial record protected under Paragraph B(1), B(2),
B(3), B(4), B(5), B(6), B(16), or B(17). 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 Paragraph B(1)(b) shall
not apply to aggregated data maintained or received by an agency,
except for data protected under Paragraph B(1), B(2), B(3), B(4),
or B(5).
E.
Construction. In determining whether a record is exempt from access
under this section, an agency shall consider and apply each exemption
separately.
[Ord. 232, 11/12/2008, § 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, legislative record or financial record
and whether the agency has possession, custody or control of the identified
record, and to respond as promptly as possible under the circumstances
existing at the time of the request. 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 in accordance
with § 1-404.7.
(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 Part.
(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
Part.
(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 Paragraph
A applies, the open-records officer shall send written notice to the
requester within five business days of receipt of the request for
access under Paragraph A.
(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 for in § 1-403, 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 Part.
4.
Certified Copies. If an agency's response grants a request for access,
the agency shall, upon request, provide the requester with a certified
copy of the record if the requester pays the applicable fees under
§ 1-407.7.
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. 232, 11/12/2008, § 6]
1.
Filing of Appeal.
A.
Authorization.
(1)
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
or judicial, legislative or other appeals officer designated under
§ 1-403.3.A, 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.
(2)
Except as provided in § 1-403.3.A, in the case of
an appeal of a decision by a Commonwealth agency or local agency,
the Office of Open Records shall assign an appeals officer to review
the denial.
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
Paragraph A.
(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 subsection 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 designated under § 1-403.3 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.
B.
Procedures. The Office of Open Records, a judicial agency, a legislative
agency, the Attorney General, Auditor General, State Treasurer or
district attorney may adopt procedures relating to appeals under this
Part.
(1)
If an appeal is resolved without a hearing, 1 Pa.Code Pt. II
(relating to general rules of administrative practice and procedure)
does not apply except to the extent that the agency has adopted these
Sections in its regulations or rules under this subsection.
(2)
If a hearing is held, 1 Pa.Code Pt. II shall apply unless the
agency has adopted regulations, policies or procedures to the contrary
under this paragraph.
(3)
In the absence of a regulation, policy or procedure governing
appeals under this subsection, the appeals officer shall rule on procedural
matters on the basis of justice, fairness and the expeditious resolution
of the dispute.
[Ord. 232, 11/12/2008, § 7]
1.
Commonwealth Agencies, Legislative Agencies and Judicial Agencies.
A.
General Rule. Within 30 days of the mailing date of the final determination
of the appeals officer relating to a decision of a Commonwealth agency,
a legislative agency or a judicial agency issued under § 1-406.1.B
or the date a request for access is deemed denied, a requester or
the agency may file a petition for review or other document as might
be required by rule of court with the Commonwealth Court. 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 subsection shall stay the
release of documents until a decision under Paragraph A is issued.
2.
Local Agencies.
A.
General Rule. 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 § 1-406.1.B 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 Paragraph A is issued.
3.
4.
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 Part.
(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 Part shall prohibit a court from
imposing penalties and costs in accordance with applicable rules of
court.
5.
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 Part is
subject to a civil penalty of not more than $500 per day until the
public records are provided.
6.
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 Part.
B.
Schedules. No agency, public official or public employee shall be
liable for civil or criminal damages or penalties under this Part
for complying with any written public record retention and disposition
schedule.
7.
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 established by resolution by the Office of Open Records,
for the Township.
(2)
The fees must be reasonable and based on prevailing fees for
comparable duplication services provided by local business entities.
(3)
Fees for local agencies may reflect regional price differences.
(a)
The following apply to complex and extensive data sets, including
geographic information systems or integrated property assessment lists.
(4)
Fees for copying may be based on the reasonable market value
of the same or closely related data sets.
(5)
Subparagraph (4) shall not apply to:
(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.
(6)
Information obtained under subparagraph (5) shall be subject
to subparagraphs (1), (2), and (3).
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 Paragraph B 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 Part,
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
Part. 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 Part.
H.
Prepayment. Prior to granting a request for access in accordance
with this Part, an agency may require a requester to prepay an estimate
of the fees authorized under this subsection if the fees required
to fulfill the request are expected to exceed $100.
9.
Practice and Procedure. The provisions of 2 Pa.C.S. (relating to
administrative law and procedure) shall not apply to this Part unless
specifically adopted by regulation or policy.
[Ord. 232, 11/12/2008, § 8]
1.
Establishment. There is established, in the Department of Community
and Economic Development, an Office of Open Records. The office shall
do all of the following:
A.
Provide information relating to the implementation and enforcement
of this Part.
B.
Issue advisory opinions to agencies and requesters.
C.
Provide annual training courses to agencies, public officials and public employees on this Part and 65 Pa.C.S. Chapter 7 (relating to open meetings).
D.
Provide annual, regional training courses to local agencies, public
officials and public employees.
E.
Assign appeals officers to review appeals of decisions by Commonwealth agencies or local agencies, except as provided in § 1-405.3.D, filed under § 1-406 and issue orders and opinions. The office shall employ or contract with attorneys to serve as appeals officers to review appeals and, if necessary, to hold hearings on a regional basis under this Part. Each appeals officer must comply with all of the following:
F.
Establish an informal mediation program to resolve disputes under
this Part.
G.
Establish an internet website with information relating to this Part,
including information on fees, advisory opinions and decisions and
the name and address of all open records officers in this Commonwealth.
H.
Conduct a bi-annual review of fees charged under this Part.
I.
Annually report on its activities and findings to the Governor and
the General Assembly. The report shall be posted and maintained on
the internet website established under Paragraph G.
2.
Executive Director. Terry Mutchler is an executive director of the
office and shall serve for a term of six years and the executive director
may serve no more than two terms.
3.
Duties. The executive director shall ensure that the duties of the
Office of Open Records are carried out and shall monitor cases appealed
to the Office of Open Records.
[Ord. 232, 11/12/2008, § 9]
If the provisions of this Part regarding access to records conflict
with any other Federal or State law, the provisions of this Part shall
not apply.
