Senate Bill 411 Approved by Senate

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Senate Bill 411 (sponsored by Senator Dominic Pileggi), which would amend Pennsylvania’s Right-to-Know Law (RTKL), was approved unanimously by the state Senate yesterday.

Among the changes SB 411 would make:

  • Dramatically increase the amount of financial and statistical information available from the four state-related universities (Temple, Penn State, Pitt, and Lincoln) by requiring these universities to establish freely accessible online databases. (This provision is based on Senate Bill 412, sponsored by Senator John Blake.)
  • Apply the RTKL to campus police departments with arrest powers the same as it applies to municipal police departments.
  • Establish that the noncriminal investigative exception does not apply to final safety inspection reports.
  • Simplify the request process by allowing requests to be sent to the AORO or to the agency’s administrative office.
  • Simplify the process of filing an appeal with the OOR.
  • Allow agencies to use a different fee schedule for commercial requests and allow those fees to be appealed to the OOR to ensure they’re reasonable.
  • Establish 11 categories of records available to inmates, ensuring they can access information related to their case and incarceration but limiting the burden inmate requests have placed on agencies and the OOR.
  • Define the term “time response log” to clarify what information related to emergency dispatches is available for public inspection.
  • Clarify that records presented to a quorum for deliberation at a public meeting which are not otherwise exempt are public records, regardless of whether a vote occurs at the meeting.
  • Clarify that economic development authorities and industrial development authorities are covered by the RTKL.
  • Clarify that volunteer fire companies and volunteer ambulance companies are not covered by the RTKL except to the extent that they have a contract with a local agency.
  • Prevent parties to litigation from using the RTKL to circumvent the discovery process, when the litigation involves a pending civil action to which the agency is a party.
  • Establish additional protections on personal financial information while continuing to make aggregated data available for public inspection.
  • Attempt to address the issues surrounding home addresses of agency employees, also the subject of ongoing litigation now before the state Supreme Court.
  • Require agencies to register their Agency Open Records Officers (AOROs) with the Office of Open Records (OOR), which makes a statewide database of AOROs available on its website.
  • Allow the OOR to extend the timeline for issuing a final determination when cases are particularly complex or require in camera review of documents.
  • Additional procedural improvements in the OOR appeals process.

As I told Kate Giammarise of the Pittsburgh Post-Gazette, SB 411 will improve the Right-to-Know Law for both requesters and agencies. There are some legitimate concerns about a few provisions, but I believe those concerns can be addressed as the bill progresses.

The bill now moves to the House of Representatives for consideration.

Opening Comments – OOR Annual Training

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Today, the Office of Open Records is hosting its annual training session in Harrisburg, covering the Right-to-Know Law and the Sunshine Act.

Here’s the presentation I’m using for my opening comments:
Annual Training 2015 Opening Comments (PDF)
Annual Training 2015 Opening Comments (PPTX)

I’ll post the presentation used by George Spiess, our Director of Training and Outreach, soon. Also, complete video from the event will be available courtesy of PCN.

Last Call: OOR Annual Training Tomorrow (10/21)

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The Office of Open Records’ 2015 Annual Training in Harrisburg is scheduled to take place tomorrow (Wednesday, Oct. 21, 2015) — and it’s not too late for you to join us.

This session will cover both the Right-to-Know Law (also known as the Open Records Law) and the Sunshine Act (also known as the Open Meetings Law), including a discussion of significant recent OOR rulings and court decisions impacting the laws. Attendees will be able to ask questions.

If you’re a lawyer, you can also get 1.5 CLEs.

Registration is free, and the event is pending approval for 1.5 CLE credits.

Register online at http://oor-training-2015.eventbrite.com/

Podcast: Common Mistakes Made by Requesters

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Podcast Logo CroppedThe third episode of the Open Records in Pennsylvania podcast is now available.

This time around, George Spiess (Chief of Training and Outreach for the Office of Open Records) and I discussed common mistakes made by requesters — said another way, how to make your requests for government records in Pennsylvania more efficient.

If you’ve ever filed a Right-to-Know request, or you think you might in the future, this episode (all 22 minutes and 35 seconds of it) is for you.

Subscribe:
Open Records in Pennsylvania podcast on iTunes

Listen:

Download:
Episode 3 of the Open Records in Pennsylvania podcast

If you have ideas for future episodes of the podcast, I’d love to hear from you. Share your thoughts in the comments below, tweet to @ErikOpenRecords or @OpenRecordsPA, or send an email to openrecords (at) pa (dot) gov.

Theme music by Pennsylvania’s own John Austin.

The RTKL and Grand Juries

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In a recent appeal, the Office of Open Records confronted the issue of how Pennsylvania’s Right-to-Know Law intersects with the state’s Investigating Grand Jury Act.

The OOR’s Final Determination in Hockeimer v. City of Harrisburg (Docket No.: AP 2015-1793) held that:

“In the instant matter, it is clear that the requested records exist independently of any grand jury investigation. The Request seeks records, including financial records, created by the City and various City personnel over the course of several years for various purposes in relation to the City’s operations. There is no evidence demonstrating that any of the requested records were created for use by the grand jury. Accordingly … the requested records are subject to disclosure under the RTKL.”

The Investigating Grand Jury Act, as a general rule, prohibits “disclosure of matters occurring before the grand jury.” Thus, the meaning of the phrase “occurring before the grand jury” becomes very important in this analysis.

As the Final Determination held, “There is little authority available in Pennsylvania jurisprudence which clarifies the meaning of ‘occurring before the grand jury.’ Consequently, the OOR looks to federal law for guidance.” (The wording of the federal grand jury law is very similar to the wording of Pennsylvania’s.)

Under federal case law, “information does not become a matter occurring before a grand jury simply by being presented to the grand jury, particularly where it was developed independently of the grand jury.” Further, “it has been well-established in this Circuit for over 14 years that if documents exist independently of the grand jury process, they are not matters occurring before the grand jury for purposes of Rule 6(e).” (Federal Rule of Criminal Procedure 6(e) deals with the secrecy of grand jury proceedings.) And, “The mere fact that a particular document is reviewed by a grand jury does not convert it into a ‘matter occurring before a grand jury’ within the meaning of Rule 6(e).”

As a result of this analysis, the OOR ordered the City of Harrisburg to release the requested records.

According to a report on Pennlive.com, the City “will appeal the Office of Open Records ruling with the Dauphin County Court of Common Pleas.”

Senator Dominic Pileggi to Open OOR’s Annual Training

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HARRISBURG – The Office of Open Records (OOR) will conduct its annual training on the Right-to-Know Law and Sunshine Act on Wednesday, Oct. 21. Senator Dominic Pileggi, author of Pennsylvania’s current Right-to-Know Law, will open the session.

“The Right-to-Know Law and the Sunshine Act are fundamental to government transparency in Pennsylvania,” said Erik Arneson, Executive Director of the OOR. “I’m particularly excited that Senator Pileggi has agreed to say a few words at the start of this year’s session.”

The free session will cover the basics of both the Right-to-Know Law (also known as the Open Records Law) and the Sunshine Act (also known as the Open Meetings Law), including a discussion of recent significant OOR rulings and court decisions impacting the laws.

“The issue of government transparency has never been more prominent than it is today,” Arneson said. “This session is designed to give both agencies and citizens the latest information about the Right-to-Know Law and the Sunshine Act in an easy-to-understand way.”

The training, which has been approved for 1.5 continuing legal education credits (CLEs), will be conducted on Wednesday, Oct. 21, 2015 from 10 a.m. to 12 p.m. in the Pennsylvania State Museum auditorium, 300 N. 3rd St., Harrisburg. It will also be recorded and aired by PCN, the Pennsylvania Cable Network.

The event is free and open to everyone, including citizens, public officials, agency employees, and members of the media. Registration is highly recommended as seating is limited. Online registration is available at http://oor-training-2015.eventbrite.com.

September 2015 Appeals – Another Busy Month

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Another month, another busy month here at the Office of Open Records.

September was down — slightly — from the record-breaking level of August, but it’s still the second-busiest month on record in terms of appeals received. We received 328 appeals in September.

Here’s a look at the top 10 busiest months in the history of the OOR:

  1. Aug. 2015 — 344 appeals received
  2. Sept. 2015 — 328
  3. June 2015 — 313
  4. July 2015 — 261
  5. Sept. 2013 — 244
  6. April 2015 — 241
  7. Oct. 2013 — 240
  8. Aug. 2013 — 235
  9. Aug. 2012 — 231
  10. April 2013 — 222

Through the end of September, the OOR has received 2,115 appeals in 2015. That already ranks 2015 as the third-busiest year on record, and we have three full months to go.

New Appeal Form Available

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As a general rule, when a government agency denies access to records in Pennsylvania, the requester can appeal to the Office of Open Records.

Today, the OOR published a new Appeal Form. Our goal was to make it easier to understand and simpler to complete. The new form is available on the OOR website in two versions:

If you prefer a standard PDF rather than a fillable PDF, that’s available here:

Much more information about how to file an appeal is also available on the OOR website.

Previously, there were two Appeal Forms: one for standard denials, and one for “deemed denials.” (A “deemed denial” occurs when an agency doesn’t respond to a requester within the time limit established by the Right-to-Know Law.) The new Appeal Form replaces both of the previous versions. The OOR will still accept appeals filed on the previous forms.

Commonwealth Court Ruling on Copyright Act

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How Pennsylvania’s Right-to-Know Law intersects with the federal Copyright Act was at the center of a case decided by Commonwealth Court earlier today.

In Jihad Ali v. Philadelphia City Planning Commission, the court held that the Copyright Act does not prevent disclosure of public records:

“Based on our review of the Copyright Act and our precedent, we conclude that Copyright Act is not a federal law that exempts materials from disclosure under the RTKL. It neither expressly makes copyrighted material private or confidential, nor does it expressly preclude a government agency, lawfully in possession of the copyrighted material, from disclosing that material to the public.”

The ruling also holds that while duplication of copyrighted public records may be limited by the federal Copyright Act, inspection of those records is not limited:

“The Copyright Act limits the level of access to a public record only with respect to duplication, not inspection. The public record must, therefore, still be made available for inspection under the RTKL, allowing the public to scrutinize a local agency’s reliance on or consideration of the copyrighted material.”

2nd Commonwealth Court Decision on MVRs

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Commonwealth Court has again ruled that mobile video recordings (MVRs), such as dashcam videos, are public records.

In the new case, Pennsylvania State Police v. Casey Grove, the court upheld an Office of Open Records decision and found that the case “is virtually indistinguishable” from the first (PSP v. Michelle Grove, which I wrote about here).

PSP has appealed the first case to the Supreme Court, which has not yet decided whether to hear the appeal.