From the Hotline

By Teri Henning
Pennsylvania Newspaper Association

I made a written request to my school district for salary and other public records, and asked that they be provided in electronic format (CDs or floppy disks), if possible. The school district did not respond to my request in writing, but did call me to make arrangements for the copying of the records. I plan to take my own equipment to the administration office and scan the records myself. The school district has said that it will charge me $15.50 an hour so that an employee can monitor my scanning. Is this appropriate?

This scenario raises a number of issues under the Right to Know Law. First, the school district is required to respond to a written request for records in writing, within the time limits set forth in the Act. In addition, the district is required to provide the records in the medium (electronic) that you requested them, to the extent that they exist in that medium. Finally, I believe that the $15.50 per hour charge is unwarranted and inappropriate under the Right to Know Law.

School District Response

Under the Right to Know Law, the school district was required to respond to the request "as promptly as possible", but no later than 5 business days from the receipt of the request. The agency must respond within that time frame by doing one of three things -- 1) providing access to the records; 2) issuing a written denial; or 3) issuing a written explanation that the agency needs an extension of time to respond. An agency can only request an extension under six sets of circumstances, including where the agency believes that legal review is necessary to determine whether the requested records are public.

Electronic Medium

The Act also requires agencies to make public records available in the medium requested, if the record exists in that medium. Here, you asked for the records on CDs or floppy disks. The agency is required to respond to this request (as explained above), and is required to make the records available to you in this format if they exist in this format. 

Hourly Charge for Staff Person to Monitor Review/Scanning

Nevertheless, at this point, it appears that you have agreed to take in your own equipment to scan/copy the records yourself. The agency is permitting you to do this, but intends to charge you $15.50 an hour for an administrative employee to "watch over" your actions as you copy the records.

In my opinion, this hourly charge is inappropriate and is not permissible under the Right to Know Law. In terms of fees, the law permits an agency to charge a reasonable per-copy fee for duplicating records. Here, the agency is not making copies for you, so it will not be charging a duplication fee.

The Act specifically prohibits an agency from charging additional fees unless the agency "necessarily incurs costs for complying with the request." Even where an agency is permitted to charge additional fees, those fees must be reasonable under the circumstances. Although in some circumstances, agencies can charge additional, reasonable fees, the circumstances that you have described do not warrant the proposed hourly fee.

Here, the agency is choosing to devote an employee to monitor your copying. The Act doesn't prohibit an agency from doing this, but to the extent that there is any expense involved, it should not qualify as a "necessary" additional expense of the agency in responding to the request. 
First, the administrative employee that the District plans to use to monitor you is a public employee. It is entirely appropriate that part of his or her duties includes responding to and handling requests for public records. The taxpaying public should not have to pay $15.50 an hour just for the opportunity to view public records. In addition, there is absolutely no reason why this employee has to devote 100 percent of his or her attention to monitoring your copying. He or she should be able to perform other District-related tasks and "monitor" the copying at the same time. Finally, to the extent that the District has concerns about safeguarding the records, there are other ways to ensure the integrity of the records, such as controlling access to the records room and keeping track of the records that you take with you when you leave.

It is important to remember that these are public records. The school district maintains these records, but the public has a statutory right to review and copy them. Any time that an agency imposes significant fees on the right to access public records, it is discouraging the public from accessing them. This is contrary to the intent of the Right to Know Law and is not good government.

For these reasons, I believe that it is inappropriate for the school district to charge you the proposed hourly rate for a School District employee to monitor your review of the records.

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