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Click Here for a Request Form. An Act Amending the act of June 21, 1957 (P.L. 390, No. 212), entitled An act requiring certain records of the Commonwealth and its political subdivisions and of certain authorities and other agencies performing essential governmental functions, to be open for examination and inspection by citizens of the Commonwealth of Pennsylvania; authorizing such citizens under certain conditions to make extracts, copies, photographs or photostats of such records; and providing for appeals to the courts of common pleas, further providing for definitions, for examination and inspection and for extracts, copies or photostats; providing for denial of access to public records, for redaction, for response to requests for access and for final agency determinations; further providing for appeal from denial of right; and providing for court costs and attorney fees, for penalty and for immunity. The General Assembly
of the Commonwealth of Pennsylvania hereby enacts as follows: Section 1. Definitions. The following words
and phrases when used in this act shall have the meanings given to them
in this section unless the context clearly indicates otherwise: Agency. Any
office, department, board or commission of the executive branch of the
Commonwealth, any political subdivision of the Commonwealth, the Pennsylvania
Turnpike Commission, the State System of Higher Education or any State
or municipal authority or similar organization created by or pursuant
to statute which declares in substance that such organization performs
or has for its purpose the performance of an essential governmental function. Commonwealth agency.
An agency which is a Commonwealth agency as that term is defined under
62 Pa.C.S. 103 (relating to definitions). Non-Commonwealth
agency. An agency which is not a Commonwealth agency. Public record.
Any account, voucher or contract dealing with the receipt or disbursement
of funds by an agency or its acquisition, use or disposal of services
or of supplies, materials, equipment or other property and any minute,
order or decision by an agency fixing the personal or property rights,
privileges, immunities, duties or obligations of any person or group of
persons: Provided, That the term public records shall not mean any report,
communication or other paper, the publication of which would disclose
the institution, progress or result of an investigation undertaken by
an agency in the performance of its official duties, except those reports
filed by agencies pertaining to safety and health in industrial plants;
it shall not include any record, document, material, exhibit, pleading,
report, memorandum or other paper, access to or the publication of which
is prohibited, restricted or forbidden by statute law or order or decree
of court, or which would operate to the prejudice or impairment of a person's
reputation or personal security, or which would result in the loss by
the Commonwealth or any of its political subdivisions or commissions or
State or municipal authorities of Federal funds, excepting therefrom however
the record of any conviction for any criminal act. Record. Any
document maintained by an agency, in any form, whether public or not. Requester. A
person who is a resident of the Commonwealth and requests a record pursuant
to this act. Response. Access
to a record or an agency’s written notice granting, denying or partially
granting and partially denying access to a record. Section 2. Procedure
for access to public records. (a) General rule.
Unless otherwise provided by law, a public record shall be accessible
for inspection and duplication by a requester in accordance with this
act. A public record shall be provided to a requester in the medium requested
if the public record exists in that medium; otherwise, it shall be provided
in the medium in which it exists. Public records shall be available for
access during the regular business hours of an agency. Nothing in this
act shall provide for access to a record which is not a public record. (b) Requests.
Agencies may fulfill verbal requests for access to records and anonymous
requests for access to records. In the event that the requester wishes
to pursue the relief and remedies provided for in this act, the requester
must initiate such relief with a written request. (c) Written requests.
A written request for access to records may be submitted in person, by
mail, by facsimile or, to the extent provided by agency rules, any other
electronic means. A written request shall be addressed to the agency head
or other person designated in the rules established by the agency. 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. (d) Electronic access.
In addition to the requirements of subsection (a), an agency may make
its public records available through any publicly accessible electronic
means. If access to a public record is routinely available by an agency
only by electronic means, the agency shall provide access to inspect the
public record at an office of the agency. (e) Creation of
a public record. When responding to a request for access, an agency
shall not be required to create a public record which does not currently
exist or to compile, maintain, format or organize a public record in a
manner in which the agency does not currently compile, maintain, format
or organize the public record. (f) Conversion of
an electronic record to paper. If a public record is only maintained
electronically or in other nonpaper media, an agency shall, upon request,
duplicate the public record on paper when responding to a request for
access in accordance with this act. (g) Retention of
records. Nothing in this act is intended to modify, rescind or supersede
any record retention and disposition schedule established pursuant to
law. Section 3. Section
3 of the act is repealed. Section 3.1. Access
to public records. An agency may not deny
a requester access to a public record due to the intended use of the public
record by the requestor. Section 3.2. Redaction. If an agency determines
that a public 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
and cannot be separated, the agency shall redact from the public record
Section 3.3. Commonwealth
agency’s response to written requests for access. (a) General rule. Upon
receipt of a written request for access to a record, a Commonwealth 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, but shall not exceed ten business
days from the date the written request is received by the Commonwealth
agency head or other person designated by the Commonwealth agency for
receiving such requests. If the Commonwealth agency fails to send the
response within ten business days of receipt of the written request for
access, the written request for access shall be deemed denied. (b) Exception. Upon
receipt of a written request for access, if a Commonwealth agency determines
that one of the following applies: (1) the request for
access requires redaction of a public record in accordance with section
3.2; (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 limitations; (4) a legal review
is necessary to determine whether the record is a public record subject
to access under this act; (5) the requester has
not complied with the Commonwealth agency’s policies regarding access
to public records; or (6) the requester refuses
to pay applicable fees authorized by section 7 of this act, the Commonwealth agency
shall send written notice to the requester within ten business days of
the Commonwealth agency’s receipt of the request for access. The notice
shall include a statement notifying the requester that the request for
access is being reviewed, the reason for the review and a reasonable date
that a response is expected to be provided. If the date that a response
is expected to be provided is in excess of 30 days, following the ten
business days allowed for in subsection (a), the request for access shall
be deemed denied. (c) Denial.
If a Commonwealth agency’s response is a denial of a written request for
access, whether in whole or in part, a written response shall be issued
and include: (1) A description of
the record requested. (2) The specific reasons
for the denial, including a citation of supporting legal authority. If
the denial is the result of a determination that the record requested
is not a public record, the specific reasons for the agency’s determination
that the record is not a public record shall be included. (3) The typed or printed
name, title, business address, business telephone number and signature
of the public official or public employee on whose authority the denial
is issued. (4) Date of the response. (5) The procedure to
appeal the denial of access under this act. (d) Certified copies.
If a Commonwealth agency’s response grants a request for access, the
Commonwealth agency shall, upon request, provide the requester with a
certified copy of the public record if the requester pays the applicable
fees pursuant to section 7. Section 3.4. Non-Commonwealth
agency's response to written requests for access. (a) General rule.
Upon receipt of a written request for access to a record, a non-Commonwealth
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, but shall not exceed five business
days from the date the written request is received by the non-Commonwealth
agency head or other person designated in the rules established by the
non-Commonwealth agency for receiving such requests. If the non-Commonwealth
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. (b) Exception. Upon
receipt of a written request for access, if a non-Commonwealth agency
determines that one of the following applies: (1) The request for
access requires redaction of a public record in accordance with section
3.2; (2) The request for
access requires the retrieval of a public record stored in a remote location; (3) A timely response
to the request for access cannot be accompanied due to bona fide and specified
staffing limitations; (4) A legal review
is necessary to determine whether the record is a public record subject
to access under this act; (5) The requester has
not complied with the non-Commonwealth agency's policies regarding access
to public records; or (6) The requester refuses
to pay applicable fees authorized by section 7, the non-Commonwealth
agency shall send written notice to the requester within five business
days of the non-Commonwealth agency’s receipt of the request notifying
the requester that the request for access is being reviewed, the reason
for the review and a reasonable date that a response is expected to be
provided. If the date that a response is expected to be provided is in
excess of 30 days, following the five business days allowed in subsection
(a), the request for access shall be deemed denied. (c) Denial.
If a non-Commonwealth agency’s response is a denial of a written request
for access, whether in whole or in part, a written response shall be issued
and include: (1) A description of
the record requested. (2) The specific reasons
for the denial, including a citation of supporting legal authority. If
the denial is the result of a determination that the record requested
is not a public record, the specific reasons for the agency’s determination
that the record is not a public record shall be included. (3) The typed or printed
name, title, business address, business telephone number and signature
of the public official or public employee on whose authority the denial
is issued. (4) The date of the
response. (5) The procedure to
appeal the denial of access under this act. (d) Certified copies.
If a non-Commonwealth agency’s response grants a request for access,
the non-Commonwealth agency shall, upon request, provide the requester
with a certified copy of the public record if the requester pays the applicable
fees pursuant to section 7. Section 3.5 Final
agency determination. (a) Filing of exceptions.
If a written request for access is denied or deemed denied, the requester
may file exceptions with the head of the agency denying the request for
access with the head of the agency denying the request for access within
15 business days of the mailing date of the agency’s response or within
15 days of a deemed denial. The exceptions shall state grounds upon which
the requester asserts that the record is a public record and shall address
any grounds stated by the agency for delaying or denying the request. (b) Determination.
Unless the requester agrees otherwise, the agency head or his designee
shall make a final determination regarding the exceptions within 30 days
of the mailing date of the exceptions. Prior to issuing the final determination
regarding the exceptions, the agency head or his designee may conduct
a hearing. The determination shall be the final order of the agency. If
the agency head or his designee determines that the agency correctly denied
the request for access, the agency head or his designee shall provide
a written explanation to the requester of the reason for the denial. Section 4. Judicial
appeal. (a) Commonwealth
agency. Within 30 days of the mailing date of a final determination
of a Commonwealth agency affirming the denial of access, a requester may
file a petition for review or other document as might be required by rule
of court with the Commonwealth Court. (b) Other agency.
Within 30 days of a denial by a non-Commonwealth agency under section
3.4 (c) or of the mailing date of a final determination of a non-Commonwealth
agency affirming the denial of access, a requester may file a petition
for review or other document as might be required by rule of court with
the court of common pleas for the county where the non-Commonwealth agency’s
office or facility is located or bring an action in the local magisterial
district. A requester is entitled to a reasoned decision containing findings
of fact and conclusions of law based upon the evidence as a whole which
clearly and concisely states and explains the rationale for the decisions
so that all can determine why and how a particular result was reached. (c) Notice.
An agency shall be served notice of actions commenced in accordance with
subsection (a) or (b) and shall have an opportunity to respond in accordance
with applicable court rules. (d) Record on appeal.
The record before a court shall consist of the request; the agency’s response;
the requester’s exceptions, if applicable; the hearing transcript, if
any; and the agency’s final determination, if applicable. Section 4.1. Court
costs and attorney fees. (a) Reversal of
agency determination.If a court reverses an agency’s final determination,
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 willfully
or with wanton disregard deprived the requester of access to a public
record subject to access under the provisions of this act; or (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. If a court affirms an agency’s final
determination, the court may award reasonable attorney fees and costs
of litigation, or an appropriate portion thereof, to the agency if the
court finds that the legal challenge to the agency’s final determination
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. Section 5. Penalties. (a) Summary offense.
An agency or public official who violates this act with the intent and
purpose of violating this act commits a summary offense subject to prosecution
by the attorney general or the appropriate district attorney and shall,
upon conviction, be sentenced to pay a fine of not more than $300 plus
costs of prosecution. (b) Civil penalty.
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 $300
per day until the public records are provided. Section 6. Immunity. (a) General rule.
Except as provided in sections 4.1 and 5, and other statutes governing
the release of records, no agency, public official or public employee
shall be liable for civil or criminal damages or 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. Section 7. Fee limitations. (a) Postage.
Fees for postage may not exceed the actual cost of mailing. (b) Duplication.
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 must be reasonable
and based on prevailing fees for comparable duplication services provided
by local business entities. (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 public 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
native media as provided by subsection (b) unless the requester specifically
requests for the public record to be duplicated in the more expensive
medium. (e) Enhanced electronic
access. If an agency offers enhanced electronic access to public records
in addition to making the public 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 public 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 and may not be established
with the intent or effect of excluding persons from access to public records
or duplicates thereof or of creating profit for the agency.
(f) Waiver of fees.
An agency may waive the fees for duplication of a public record, including,
but not limited to, when: (1) The requester duplicates
the public record; or (2) The agency deems
it is in the public interest to do so. (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
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. Section 8. Implementation. (a) Requirement.
An agency shall establish written policies and may promulgate regulations
necessary to implement this act. (b) Content.
The written policies shall include the name of the office to which requests
for access shall be addressed and a list of applicable fees. (c) Prohibition.
A policy or regulation may not include any of the following: (1) A limitation on
the number of public records which may be requested or made available
for inspection or duplication. (2) A requirement to
disclose the purpose or motive in requesting access to records which are
public records. (d) Posting.
The policies shall be conspicuously posted at the agency and may be made
available by electronic means. Section 9. Practice
and procedure. The provisions of 2
Pa. C.S. (relating to administrative law and procedure) shall not apply
to this act. Section 10. If an agency receives
a request for a record that is subject to a confidentiality agreement
executed before the effective date of this act, the law in effect at the
time the agreement was executed, including judicial interpretation of
the law, shall govern access to the record, even if the record is a public
record unless all parties to the confidentiality agreement agree in writing
to be governed by this act. Section 11. This act shall take
effect in 180 days. APPROVED The 29th day
of June, A.D. 2002 Mark Schweiker, Governor |
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