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Pennsylvania Right to Know Law

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The Pennsylvania Right to Know Act, also known as the Pennsylvania Sunshine Law, is a series of laws designed to guarantee that the public has access to public records of governmental bodies in Pennsylvania.

The Pennsylvania Sunshine Act legislates the methods by which public meetings are conducted.

Prior to 2008, the Pennsylvania Right to Know Act was widely regarded as one of the worst in the country, partly because the pre-2008 law presumed that government records were not public, unless someone who wanted the record could establish otherwise. A law passed by the state legislature and signed by Gov. Ed Rendell "flipped the presumption." This new law went into full effect on January 1, 2009 and it states, in sharp distinction to the previous law, that all documents will be presumed to be open to the public unless the agency holding them can prove otherwise.

Relevant legal cases

See also: Court cases with an impact on state FOIA and Pennsylvania sunshine lawsuits

Proposed changes

2011

See also: Proposed reforms in state sunshine laws, 2011

2010

See also: Proposed reforms in state sunshine laws, 2010

2009

See also: Proposed reforms in state sunshine laws, 2009
  • SB 105 Pennsylvania Taxpayer Transparency Act - This bill would direct the Office of Budget to create and maintain a free and searchable budget database website.
  • SB 107 - This bill would require the state Treasurer to post salary information for all state employees on a public website.[1]
  • SB 101[2]
  • SB 109[3]
  • SB 110[4]

Transparency report card

A 2008 study, BGA - Alper Integrity Index, conducted by the Better Government Association and sponsored by Alper Services, ranked Pennsylvania #25 in the nation, with an overall percentage of 52.00%.[5]

A 2007 study, Graded state responsiveness to FOI requests, conducted by BGA and the NFOIC, gave Pennsylvania 53 points out of a possible 100, a letter grade of "F" and a ranking of 22 out of the 50 states.[6]

A 2002 study, Freedom of Information in the USA, conducted by IRE and BGA, ranked Pennsylvania's law as the 48th worst in the country, giving it a letter grade of "F."[7]

Features of the law

Sunshine variations Compare States: Sunshine variations
Click on the heading to compare your state's law to other state's transparency laws.

Declared legal intention

See also: Declared legal intentions across the U.S.

The law that went into effect on January 1, 2009 states, "Unless otherwise provided by law, a public record shall be accessible for inspection and duplication by a requester in accordance with this act."[8]

What records are covered?

See also: Defining public records

Pennsylvania law defines records as "[i]nformation, 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."[9]

Deliberative process

See also: Deliberative process exemption

What agencies are covered?

See also: Defining public body

Pennsylvania law explicitly includes all branches of government at both the state and local level.[10]

Legislature

The legislature falls under the definition of public body found at Chapter 3 and is subject to the Pennsylvania Right to Know Law.

Privatized governmental agencies

See also: Private agency, public dollars and Private agency, public dollars-Pennsylvania

Under Pennsylvania law, private entities that were created by a public body and perform a public function are considered public bodies and are subject to the Right to Know Law.

Public universities

See also: Universities and open records

Certain universities within Pennsylvania fall under the definition of "state-related institution," which is explicitly not included in the definition of "Commonwealth agency" that defines what entities are subject to the law. These include:

(1) Temple University

(2) The University of Pittsburgh
(3) The Pennsylvania State University
(4) Lincoln University

Instead, these universities are required to submit an annual report to the government detailing tax information, as well as salaries for employees. Other state departments of higher education and community college are included in the law.[11] In 2013, a bill passed the Pennsylvania House that would close this exemption.[12]

Who may request records?

See also: List of who can make public record requests by state

Any United States citizen may request public records in Pennsylvania. The law explicitly defines "requester" as "a person that is a legal resident of the United States and requests a record pursuant to this act. The term includes an agency."[13][14]

Impact of Lee v. Minner

In 2006, a federal appeals court (the Third Circuit), in the case Lee v. Minner, rejected the constitutionality of Delaware's law that disallowed non-residents from making public record requests.

The Third Circuit's rulings apply to Delaware, New Jersey, Virginia, Arkansas, Pennsylvania and any other state that permits access only to state citizens. As a result, the provision in the Pennsylvania Right to Know Law that prohibits non-residents from access to records is likely to be considered invalid.

Must a purpose be stated?

See also: States requiring a statement of purpose

Pennsylvania law does not require a statement of purpose, and further, explicitly prohibits the creation of a requirement of a statement of purpose.[15]

How can records be used?

See also: Record use restrictions

There is not restriction on the use of records, nor can records be denied based on intended use.[16]

Time allowed for a response

See also: Request response times by state

Effective in 2009, "[t]he 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."[17]

The government agency may determine that:

  • The requested records require some redaction.
  • The records are stored in a remote location so that retrieval will take some time.
  • Staffing limitations exist.
  • The agency is uncertain as to whether it is required under the law to provide the records that have been requested and therefore wants to request a legal review prior to making a decision as to whether to fulfill the request.
  • The requestor did not adequately comply with the policies regarding how to ask for records.
  • The requestor did not pay the fees associated with the request.
  • The "extent or nature of the request precludes a response within the required time period"

If the agency decides that one or more of those reasons for not providing the records within the five-day window apply, the agency is required to provide the requestor with a letter saying why it is going to take more than five days. That letter must be provided within the five-day window.

Fees for records

Copy costs

See also: How much do public records cost?

In general, the fee structure proposed by Terry Mutchler of the OOR allows for a copying fee of $0.25 per page for executive, county, municipal and school district records. The judicial branch currently charged $1.00 per page for copies and the legislative branch charged $0.50 per page, as of 2008.[18]

Search fees

See also: Sunshine laws and search fees
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In November 2008 Gov. Ed Rendell's office released a directive that allows states agencies to charge "a reasonable fee" for searching and retrieving documents. The directive also allows agencies to charge for redacting nonpublic information from copies of requested government documents.

The directive is controversial because the state's Office of Open Records--which was charged in 2008 with coming up with guidelines to govern how the state's new law would be implemented--says that fees should not be charged for retrieval or redaction.[19]

The director of the OOR said the office was engaging in discussions with the Rendell administration about the new directive because the OOR believed that, "When you have a fee structure that allows agencies to charge for the cost of labor, it opens the door to abuse."

Records commissions and ombudsmen

See also: State records commissions

A Pennsylvania Office of Open Records (OOR) was established in 2008 to assist citizens when they have trouble accessing public documents. Terry Mutchler is the director of the office.

Role of the Attorney General

See also: Role of the Attorney General and Pennsylvania Attorney General

There is currently no provision within the state open records law that empowers the State Department of Law to enforce the right of the public to access governmental records.

Open meetings

"The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision-making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society."[20]

See also

External links

Additional reading

References