The Right to Know Law, as amended last year, continues to raise issues for newspapers requesting records from government agencies.

By: Teri Henning, Pennsylvania Newspaper Association

Q: Is a Pennsylvania Corporation entitled to records under the amended Right to Know Law?

A: Yes. Although there is no court decision that specifically addresses this issue under the new Law, a Pennsylvania corporation must be entitled to receive public records. The Right to Know Law defines “requester” as a “person who is a resident of the Commonwealth….” 65 P.S. §66.1. The Law does not define “resident”, but Pennsylvania’s Statutory Construction Act defines “person” to include corporations, and other business entities. 1 Pa. C.S. § 1991. In addition, there are other Pennsylvania laws that include corporations in the definition of “resident.” Federal case law also refers to corporations as being residents of a state. Finally, Black’s Law Dictionary defines “residence” to include the “place where a corporation or other enterprise does business or is registered to do business.” Black’s Law Dictionary 1310 (7th ed. 1999). Consistent with this interpretation, the Governor’s Office of General Counsel has issued a revised “Management Directive” with respect to the Right to Know Law. The revised document now acknowledges that corporations may be entitled to records under the Law. As a practical matter, we recommend that you make all records requests in the name of your newspaper AND in the name of an individual Pennsylvania resident. Doing this permits you to avoid this issue altogether.

Q: If I want records from an agency, do I have to make a request under the Right to Know Law, or can I request records informally?

A: You can (and should in many cases) continue to make records requests informally. Often, this will get you records (including records that may not meet the definition of “public records”) more quickly and easily. If an agency does not or will not respond to your informal attempts, however, you should submit a written request for the records, invoking the Right to Know Law. You can find a draft request letter at www.pa-newspaper.org/legal/open.htm.  An agency can require that your request be made in writing. In addition, although an agency can permit e-mail requests (if its rules allow for them), the law does not require an agency to accept these requests. The Law does require an agency to accept hand-delivered, mailed, and faxed records requests.

Q: If I make a written request for records, how is an agency required to respond?

A: Under the Right to Know Law, an agency must respond to a written request within 5 business days (local agencies) or 10 business days (commonwealth agencies). An agency must respond within the applicable time frame by doing one of three things:

• providing copies of or access to the records;

• issuing a written denial (see below); or

• ssuing a written explanation that the agency needs (up to) a 30-day extension (see below).

If the agency does not respond within the applicable time frame, its response is treated as a denial (“deemed denied”), and the requester can immediately begin the appeals process.

Q: If an agency denies a records request, what does the Act require?

A: The agency must issue a written denial, which must include:

• a description of the record requested;

• the specific reason for the denial, including a citation of supporting legal authority; 

• the name, title, address, telephone number, and signature of the public official or employee who issued the denial;

• the date of the response; and 

• the procedure to appeal the denial.

Q: What is an “extension” (referred to as an “exception” in the Act) and when does one apply?

A: In six, specified circumstances, the Act allows an agency to take up to 30 additional days to provide a final response to a records request. It is important to note that even if the Act permits an agency to claim an extension, the agency still must respond to the initial written request within 5 business days (local agencies) or 10 business days (Commonwealth agencies) to inform the requester that it needs more time to respond. 

In its written explanation that it needs an extension of time, the agency must include:

• that the request is being reviewed;

• the reason for the review; and 

• a reasonable date that a response is expected to be provided.

The Act permits an agency to claim an “extension” only in the following circumstances:

• the request requires redaction;

• the request requires the agency to retrieve documents that are stored in a remote location;

• the agency cannot respond due to “bona fide and specified” staffing limitations;

• a legal review is necessary to determine whether the record is a public record;

• the requester has not complied with the agency’s policies regarding access to records; or

• the requester refuses to pay applicable fees.

Q: If the agency claims an extension, when does the agency have to provide a final response?

A: Even when an agency can ask for more time, local agencies must respond within 35 days (5 business days plus 30 calendar days), and Commonwealth agencies must respond within 40 days (10 business days plus 30 calendar days). 

If the agency does not provide its final response within this time frame, its response is treated as a denial, and the requester can immediately begin the appeals process.

Q: What fees can an agency charge for records?

A: Duplication Fees. Fees for duplication must be reasonable and based on prevailing fees for similar duplication services provided by local entities.

Certification Fees. Agencies can also charge additional, reasonable fees for “certifying” a record, if the requester has asked for certification.

Postage Fees. Fees for postage may not exceed the actual cost of mailing.

Additional Fees. No other fees may be imposed, unless the agency “necessarily incurs costs” in complying with the request. Any 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.

Prepayment. Agencies can require a requester to prepay fees where the fees are expected to exceed $100.00

Waiver of fees. The Act also permits an agency to waive fees.

Q: What can I do if I am denied access to a document that I feel is public?

A: The appeals process differs, depending upon whether you have requested records from a Commonwealth Agency or a local agency. 

Commonwealth Agencies. Within 15 days of the mailing date of the denial (or of a deemed denial), you must file Exceptions with the Agency. The Agency must issue a “final determination” within 30 days. If you still believe that you were wrongly denied access, you can file an appeal with the Pennsylvania Commonwealth Court. Any appeal must be filed within 30 days of the final determination.

Local Agencies. You may, but are not required to, file exceptions directly with the local agency. These must be filed within 15 days of the mailing date of the denial (or of the deemed denial). You may also proceed directly to court. You can file an appeal with the County Court of Common Pleas within 30 days of a denial or deemed denial.

Please note that some local agencies are claiming that if their rules permit you to file “Exceptions” directly with the agency, that you MUST file exceptions before going to court. We believe that this interpretation is incorrect, and that under the clear terms of the statute, you are permitted (at your option) to appeal EITHER: 1) directly to the agency within 15 days; OR 2) directly to court within 30 days. Until this issue is decided by a court, however, you should be aware that this disagreement exists. As a result, when you are considering whether to appeal a local agency denial, you must contact your counsel as soon as you receive the denial (or the agency’s deadline passes with no response). You must decide how you plan to proceed before the 15 day time limit (for filing exceptions) passes.

Click here for more information on fees.

Q: What are the penalties under the new Right to Know Act? 

A: If a public agency or official intentionally violates the act, that entity or individual can be found guilty of a summary offense and can be fined up to $300 plus costs of prosecution. If a public agency or official does not promptly comply with a court order to release documents under the Act, that entity or person is subject to a fine up to $300 per day until the record is provided.