2 New Draft Sample Forms for Public Comment

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The Office of Open Records has posted two new draft sample forms and is seeking public comment on both.

The Right-to-Know Law and other statutes make various records public, including certain records from law enforcement agencies and county coroners. The OOR often dockets appeals involving these types of records. In an effort to help these agencies provide information under the RTKL, and to help requesters across the state receive more uniform responses, the OOR has prepared these two sample forms.

Law enforcement agencies and county coroners would not be required to use the forms, but doing so could help reduce the workload related to responding to RTKL requests. (These forms do not represent the totality of information available from these agencies, but they do represent some of the most commonly requested information.)

Public comment on the draft forms will be accepted through Monday, Feb. 8, 2021.

The best way to comment is via email to openrecords@pa.gov or by using the form available on the Contact page at the OOR website. Comments can also be submitted via postal mail (Office of Open Records, 333 Market Street, 16th Floor, Harrisburg, PA 17101-2234) and fax (717-425-5343).

OOR to Post Final Determinations from District Attorneys

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Pennsylvania’s Right-to-Know Law gives county District Attorneys the responsibility of appointing an appeals officer to decide RTKL appeals “relating to access to criminal investigative records in possession of a local agency of that county.”

District Attorneys have been doing this since the RTKL went into effect at the start of 2009. Until now, there has been no effort to provide a central location where all of those decisions can be found.

Yesterday, the Office of Open Records sent letters to all 67 District Attorneys requesting that they forward to the OOR copies of any Final Determinations issued by their offices — including past and future Final Determinations — so that they can be posted to a new page on the OOR website.

We believe this new page will be a tremendous resource for agencies, requesters, and District Attorney appeals officers. The target date for making the page go live is Monday, Feb. 1.

Court Filings Update – New Email Newsletter

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I’m exited to announce that the Office of Open Records will soon start sending a new email newsletter called Court Filings Update — and you you can sign up for it now.

The newsletter will be sent regularly, generally multiple times each week, and it will include information about appeals and associated documents filed in the Courts of Common Pleas, the Commonwealth Court, and the Pennsylvania Supreme Court.

We expect to send the first Court Filings Update newsletter by the end of March, hopefully sooner.

The Court Filings Update newsletter will be sent separately from the OOR’s Daily Final Determinations Update (which lists and links to recent Final Determination issued by the OOR) and the OOR’s general email newsletter.

You can manage your subscriptions to all three newsletters here.

Pageviews on OOR Blog Surged in 2020

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The first post was made to this Office of Open Records blog on June 25, 2015. Since then, as executive director of the OOR, I’ve posted here about a wide variety of topics related to the OOR, court decisions, legislation, RTKL training resources, and much more.

Pageviews on this blog have been relatively consistent through the years:

  • 5,718 in 2015
  • 17,526 in 2016
  • 9,860 in 2017
  • 9,608 in 2018
  • 10,163 in 2019

In 2020, however, pageviews surged — to 42,280.

The single biggest reason for that increase is the fact that this blog is where we posted the official OOR COVID-19 advisories regarding the Right-to-Know Law and the Sunshine Act. (Posting the advisories here made it easier to edit them as events warranted.)

The pages on this blog with the most views in 2020 were:

One thing this data makes very clear is that this blog has become an important part of keeping the public informed about issues related to the RTKL, the Sunshine Act, and government transparency.

NOTE: All data for 2020 is through and including Dec. 31, 2020.

Court Orders Sunshine Act Training

Open records_logo stackedThe Court of Common Pleas in Westmoreland County recently ordered officials from the City of Monessen to attend Sunshine Act training provided by the Office of Open Records.

In the opinion and order, Judge Harry F. Smail, Jr., discussed a public meeting held by the City at which “there was absolutely no opportunity for public comment on the motions to fire the city solicitor, to hire the new city solicitor, to terminate the city administrator, to hire the new city administrator, to restrict access to city cameras, to rescind a Sewage Authority Board appointment and to advertise for the vacancy on the Sewage Authority Board.”

Those actions, Judge Smail said, “are facially apparent violations of Section 710.1(a) of the Sunshine Act.”

As a result, Judge Smail ordered — and we believe this is a first-of-its-kind order in Pennsylvania — that “Defendants Councilmembers of the City of Monessen and Defendant Mayor Matt Shorraw … attend a Sunshine Act training through the Pennsylvania Office of Open Records, to be scheduled … within thirty (30) days of the date of this Order of Court.”

The order was dated Dec. 11, and the OOR has been contacted by the City of Monessen to schedule the mandatory training session.

If you’d like to schedule training with the OOR, mandatory or otherwise, take a look at our training calendar and then contact us. We provide training on the Sunshine Act and the Right-to-Know Law.

Federal Court Decision (FOIA) on Information in Databases

Open records_logo stackedEarlier this month, the United States Court of Appeals for the Ninth Circuit published an interesting decision related to accessing information in government databases.

The decision, in the case of The Center for Investigative Reporting v. United State Department of Justice, held that “the use of a query to search for and extract a particular arrangement or subset of existing data from the [Firearms Tracing System] database [maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives] does not require the creation of a ‘new’ agency record under [the federal Freedom of Information Act].”

The court’s decision contains a lot of good discussion about this important issue, mostly starting on page 37, such as: “[I]f running a search across these databases necessarily amounts to the creation of a new record, much government information will become forever inaccessible under FOIA.”

Importantly, the decision is in line with existing Pennsylvania case law regarding the Right-to-Know Law.

For example, in Gingrich v. Game Commission, the Commonwealth Court held: “Providing data from an agency database does not constitute creating a record.” And in Department of Environmental Protection v. Cole, the Commonwealth Court held: “An agency can be required to draw information from a database.”

In our training sessions for requesters, the Office of Open Records often discusses this issue. You can find more about the RTKL and information in government databases on slides 29 to 32 of this presentation, and you can listen to me discuss the issue here.

Providing Minutes, Agendas & Other Basic Records

Open records_logo stackedDuring the Office of Open Records’ training sessions, we often get a question along these lines:

Does an agency have to require a Right-to-Know request before releasing records?

Our answer is unequivocal: No. Records can be provided informally.

In fact, it often makes better sense for an agency to release records informally rather than requiring an official RTK request.

A few examples:

  • Meeting minutes: These are among the most basic of records and should be easily available. If an agency has a website, minutes should be posted online. That reduces work for the agency and makes this basic information easily available to the public.
  • Meeting agendas: Many agencies post meeting agendas online prior to meetings, and the OOR strongly encourages this. Again, it saves the agency work and makes important information easily available to the public. (Legislation to require this passed the House in the 2019-20 legislative session and will likely be reintroduced in the 2021-22 session.)
  • Board packets: The information provided to board members (e.g., county commissioners, members of a school board, borough council, etc.) to refer to at a public meeting is usually public. On occasion, some of the information may be able to be withheld under the RTKL. But having copies of the public information in the packets available to the public — online, if possible — before a meeting starts is strongly encouraged.
  • Annual budgets: The budget process is one of the most important any agency goes through every year and financial records are the most public of all records under the RTKL.

Even if an agency doesn’t post these records online, they can be provided to a requester without requiring a formal RTK request. Forcing every request for information, no matter how simple, into the RTKL process generates unnecessary work for agencies and slows down the process of getting that information to the public.

As agencies continue to hold meetings virtually (or a combination of virtual and in person) during the COVID-19 pandemic, considering steps like these is even more important. It’s challenging enough for the public to follow agency business during normal meetings; that challenge is only increased when the meeting is held online.

The Office of Open Records welcomes and encourages questions from agencies and requesters alike. The best way to contact us is to use the contact form on our website.

RTKL Fee Schedule Updated

Open records_logo stackedSection 1307 of the Right-To-Know Law requires the Office of Open Records to establish a fee schedule for Commonwealth agencies and local agencies.

Section 1310 of the RTKL requires the OOR to review that fee schedule every other year. Duplication fees charged under the RTKL must be reasonable and based on “prevailing fees for comparable duplication services provided by local business entities.”

Today, the OOR updated the Official RTKL Fee Schedule. (It was last updated on Oct. 15, 2018.)

Prior to publishing this update, the OOR solicited comments. The OOR received 27 comments. The OOR also gathered pricing information from a sampling of local businesses that provide duplication services across the Commonwealth and reviewed other relevant pricing information.

The OOR made the following changes to the Official Fee Schedule:

  • Maintained the allowable charge for black and white copies at “up to $0.25 per copy” for the first 1,000 copies but reduced it to “up to $0.20 per copy” for any copies beyond that.
  • Reduced the allowable charge for a CD or DVD from “up to actual cost, not to exceed $3.00 per disc” to “up to actual cost, not to exceed $1.00 per disc.”
  • Clarified (in footnotes 4, 6 and 8) that agencies cannot charge for records they are able to redact securely by electronic means.
  • Made minor stylistic and grammatical changes.

Supreme Court Decision in Uniontown Newspapers v. DOC

Office of Open Records LogoThis morning, the Pennsylvania Supreme Court issued a decision in the case of Uniontown Newspapers v. Department of Corrections.

The decision, available here, is important reading for anyone with an interest in Pennsylvania’s Right-to-Know Law.

This case began with a 2014 request for records related to illnesses contracted by inmates and staff members at the state prison in Fayette.

In March 2018, Judge Robert Simpson of the Commonwealth Court ruled that “some of [the Department of Corrections’] noncompliance [with an OOR order] constitutes bad faith that merits statutory sanctions.”

In Oct. 2018, Judge Simpson ordered DOC to pay $118,458.37 in legal fees.

Today’s decision not only upholds that sanction, it also includes strong language about the duty of the agency, and the Agency Open Records Officer, to conduct a good faith search for records at the request stage.

The complete OOR docket sheet (2014-1695) includes much more information.