Today (Mon., Jan. 11, 2021) at 2 p.m., I will host a webinar about the Right-to-Know Law designed for requesters, including members of the media and anyone interested in accessing government records in Pennsylvania.
This webinar will be held via Zoom. You can find all the details you need to join on the OOR’s training calendar. It should last about 90 minutes, and there will be plenty of time for questions and answers.
Here’s the PowerPoint presentation that I’ll use:
The OOR regularly hosts webinars and in-person training sessions about various topics related to the Right-to-Know Law and the Sunshine Act. Feel free to request a specific training session for your group or organization.
The OOR’s Citizens’ Guide to the Right-to-Know Law and Sunshine Act is an introduction to these two laws, both of which promote government transparency.
The Citizens’ Guide has been completely rewritten and the new version is available now.
The RTKL, also known as the open records law, grants access to public records. The Sunshine Act, also known as the open meetings law, ensures access to public meetings.
The Citizens’ Guide, a 12-page PDF, includes sections on how to file a request, agencies subject to the RTKL, fees under the RTKL, how to file an appeal, and more.
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 email@example.com 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).
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.
The Office of Open Records has posted an updated draft of its regulations.
The current draft regulations, the previous draft regulations, and information about the regulations and the regulatory process can be found here.
Earlier 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.
During 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.
Section 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.
This 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.
On Dec. 2, I hosted a training session on Zoom designed for requesters, including members of the media and anyone interested in accessing government records in Pennsylvania.
That session, The Right-to-Know Law for Requesters, is now available on YouTube.
Here’s the PowerPoint presentation that I used:
The Right-to-Know Law for Requesters (Dec. 2, 2020) – PPTX
The Right-to-Know Law for Requesters (Dec. 2, 2020) – PDF
You can watch the entire video here or on the OOR’s YouTube Channel: