Open Records (Right to Know Law)

Pennsylvania's Right to Know Law Act 3 of 2008, as signed by Gov. Edward G. Rendell on February 14, 2008 went into effect January 1, 2009.

What is the Right to Know Law?

The Right to Know Law is the Pennsylvania law that guarantees your right to access and obtain copies of public records held by government agencies.

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Where can I find the law?

The law is available at the Pennsylvania's Office of Open Records website here: http://openrecords.state.pa.us/portal/server.pt/community/open_records/4434/right-to-know_law/466460

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Isn't there a new Right to Know Law in Pennsylvania?

Yes. On February 14, 2008, Governor Rendell signed Act 3 of 2008 into law, which is a complete overhaul of the Right to Know Law. Although some provisions took effect immediately (those establishing an Open Records Office) and others took effect on July 1, 2008 (requiring state-related institutions to make certain financial information public and requiring the on-line posting of state contract information), the bulk of the new law took effect on January 1, 2009.

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What are the biggest differences between the old law and the new law?

The new law fundamentally changes the structure of Pennsylvania's Right to Know Law. It begins with the presumption that state and local agency records are open for public inspection and copying and places the burden on a government agency denying access.

For the first time since the Right to Know Law was passed in 1957, it will include the General Assembly and will give citizens the ability to appeal open records disputes to an administrative agency, the Office of Open Records, without the need to file a court action.

The new law guarantees access to public records in the possession of government contractors performing "governmental functions" on behalf of an agency, establishes an online, searchable database for state contract information, and requires state-affiliated universities to make certain financial information public.

The law also shortens agency response times and increases the civil penalties that can be awarded against an agency acting in bad faith.

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Generally speaking, what records can I get under the new Right to Know Law?

The Right to Know Law guarantees your right to obtain public records from state and local agencies in Pennsylvania. It also guarantees your right to obtain legislative records from the Pennsylvania General Assembly and financial records from Pennsylvania's judicial system.

The law does not apply to record requests to federal agencies. If you are interested in obtaining federal agency records, you must make your request under the federal Freedom of Information Act (FOIA). For more information on making a FOIA request, including a letter generator, see http://rcfp.org/foia/.

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What are some examples of records that will be available under the new law?

  • Community colleges are now covered agencies. As a result, their records are presumptively public;
  • The PIAA (Pennsylvania Interscholastic Athletic Association) is now expressly covered;
  • The Pennsylvania Higher Education Assistance Agency and its related entities are now expressly covered;
  • Grant applications are public records (and not just the contracts reflecting funded grants);
  • Records reflecting a public employee's demotion or discharge are public;
  • The General Assembly is now included as an "agency," and the law expressly identifies a number of legislative records that are public, including financial records, manuals and written policies, and financial audit reports;
  • Records that are presented to a quorum of an agency for deliberation at a public meeting (e.g., board packets), are public, with limited exceptions;
  • 911 time response logs are public.
  • The law provides for the creation of an online searchable database for state contract information.
  • State-affiliated universities are now required to publicly disclose certain financial information, including the salaries of all officers and directors and salaries of the highest paid employees.

Many other records will be available as well, since the new law begins with the presumption that all state and local agency records are publicly available. As a result, you should be able to access any record that is not exempt under the law.

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What agencies are covered by the new Right to Know Law?

The law covers Commonwealth agencies, local agencies, judicial agencies, and legislative agencies.

Commonwealth agencies include state agencies (e.g., the Department of Education), the Governor's office, the Office of Attorney General, the Department of the Auditor General, the Treasury Department, the Pennsylvania Higher Education Assistance Agency (and any entities created by PHEAA), the Pennsylvania Gaming Control Board, the Pennsylvania Game Commission, the Pennsylvania Fish and Boat Commission, the Pennsylvania Housing Finance Agency, the Pennsylvania Municipal Retirement Board, the State System of Higher Education, community colleges, the Pennsylvania Turnpike Commission, the Pennsylvania Public Utility Commission, the Pennsylvania Infrastructure Investment Authority, the State Public School Building Authority, the Pennsylvania Interscholastic Athletic Association, the Pennsylvania Educational Facilities Authority, and any other state organization established by law that performs or is intended to perform an essential governmental function.

Local agencies include political subdivisions (e.g., school districts), intermediate units, charter schools, public trade or vocational schools, local, intergovernmental, regional, or municipal governments (e.g., boroughs, counties), and similar governmental entities.

Judicial agencies include any court, entity or office within Pennsylvania's unified judicial system.

Legislative agencies include the Pennsylvania House of Representatives, the Pennsylvania Senate, and a number of specifically-listed commissions and entities (e.g., the Capitol Preservation Committee, the Center for Rural Pennsylvania, and the Joint State Government Commission). The term includes the political party caucuses of the state House and Senate.

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What records can I get from Commonwealth and local agencies?

Records are presumed open; burden is on agency. The new law begins with the presumption that all records held by Commonwealth and local agencies are publicly available -- both for viewing and copying. The burden of proving that a record is non-public (or that an exemption applies) is on the agency denying access.

The new law also provides access to public records in the possession of government contractors performing "governmental functions" on behalf of an agency. These records may be requested from the agencies.

The presumption of access does not apply to records that are: 1) protected by a privilege (e.g., attorney-client, doctor-patient); 2) exempt from disclosure under federal or state law; or 3) exempt under Section 708 of the Right to Know Law. Section 708 of the Law lists 30 categories of records that are exempt from disclosure.

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What records can I get from judicial agencies?

Financial records are presumed open; burden is on agency. The new law begins with the presumption that all financial records held by judicial agencies are publicly available -- both for viewing and copying. The burden of proving that a financial record is non-public (or that an exemption applies) is on the judicial agency denying access.
Financial records include:

  • Accounts, vouchers, and contracts dealing with: 1) the receipt or disbursement of funds by an agency; or 2) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property;
  • Salaries and other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee; and
  • Financial audit reports.

The presumption of access does not apply to financial records that are: 1) protected by a privilege (e.g., attorney-client, doctor-patient); 2) exempt from disclosure under federal or state law; or 3) exempt under Section 708 of the Right to Know Law. Section 708 of the Law lists 30 categories of records that are exempt from disclosure (see What records are exempt from access?).

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What records can I get from legislative agencies?

Legislative records are presumed open; burden is on agency. The new law begins with the presumption that all legislative records are publicly available -- both for viewing and copying. The burden of proving that a legislative record is non-public (or that an exemption applies) is on the legislative agency denying access.
Legislative records include:

  • Financial records (see above for definition);
  • Bills or resolutions that have been introduced;
  • Fiscal notes;
  • Co-sponsorship memoranda;
  • Minutes of public hearings and public committee meetings;
  • Transcripts of public hearings, when available;
  • Executive nomination calendars;
  • Rules of a chamber;
  • Record of all recorded votes;
  • Administrative staff manuals and written policies;
  • Audit reports;
  • Final and annual reports required to be submitted to the General Assembly;
  • Legislative Budget and Finance Committee reports;
  • Daily Legislative Session Calendars and marked calendars;
  • Records reflecting an appointment of a legislative appointee;
  • Proposed regulations, final-form regulations, and final-omitted regulations; and
  • Result of public opinion surveys and polls.

The presumption of access does not apply to legislative records that are: 1) protected by a privilege (e.g., attorney-client, doctor-patient); 2) exempt from disclosure under federal or state law; or 3) exempt under Section 708 of the Right to Know Law. Section 708 of the Law lists 30 categories of records that are exempt from disclosure (see below).

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Can agencies release records that are "exempt" under the Right to Know Law?

Agencies have discretion to release records. Yes. It is important to note that agencies have the discretion to release records that are exempt under Section 708 of the Law, if: 1) disclosure is not prohibited by some other law or by court order; 2) the record is not protected by a privilege; and 3) the agency head determines that the public interest in disclosure outweighs any need for confidentiality.

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What records are exempt from access?

Privileged records. Under the new law, records that are protected by a privilege, such as the attorney-client privilege or the doctor-patient privilege are not public.

Records that are expressly made non-public by another law. Records that are non-public under some other law (e.g., federal law makes student educational records non-public) are not public. Of course, the reverse is also true. If another statute makes a record public, then that record is public, and the Right to Know Law does not change that. For example, the Criminal History Record Information Act (CHRIA) expressly states that police blotters are public records. The Right to Know Law does not change this. Likewise, the law does not affect access to criminal and civil court records or voter registration records.

Right to Know Law exemptions. Section 708 of the new law contains 30 categories of exemptions. As stated above, agencies may release these records in many circumstances.
With very limited exceptions, the exemptions do not apply to financial records or aggregated data. The exemptions include the following:

  • Records that, if disclosed, would result in the loss of Federal or state funds;
  • Records that, if disclosed, would result in physical harm to an individual or would harm an individual's personal security;
  • Records that would jeopardize homeland security or public safety or preparedness;
  • Records that, if disclosed, would endanger the safety or security of a building, public utility, infrastructure, or information storage system;
  • Records that, if disclosed, would jeopardize computer security;
  • Medical, psychological and related records that would disclose individually identifiable health information;
  • Personal identification information, including social security numbers, personal financial information, driver's license numbers, and home telephone numbers;
  • Home addresses of law enforcement personnel and judges;
  • Certain personnel records relating to public employees, including applications of those not hired, academic transcripts, and information regarding discipline (except that final actions of an agency that result in demotion or discharge are public);
  • Records relating to collective bargaining strategy or negotiations, except that final contracts and agreements and final awards and orders of arbitrators are public;
  • Working drafts of bills, resolutions, and policies;
  • Records reflecting internal, predecisional deliberations of agencies, including internal strategies. This exemption does not apply to records reflecting an agency decision, records requesting state funding/grant money, or results of public opinion surveys or polls. In addition, records presented to a quorum of an agency for public deliberation at a meeting subject to the Sunshine Act (e.g., board packets) are public records, with limited exceptions.
  • Trade secrets and confidential proprietary information.
  • Notes and working papers used by a public official or employee solely for that individual's own personal use.
  • Records that would disclose an agency donor, except under certain circumstances;
  • Unpublished academic materials;
  • Academic transcripts and examination materials;
  • Criminal investigative records. This exemption does not apply to information contained in a police blotter or in a traffic report (except for in-depth accident investigations);
  • Non-criminal investigative records. This exemption does not apply to fines levied by agencies, license revocations, settlement agreements, or similar agency actions;
     911 records, except that time response logs are public, and agencies can disclose 911 recordings or transcripts if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure;
  • DNA and RNA records;
  • Autopsy reports, except that name, cause, and manner of death of a deceased individual are public;
  • Draft minutes of an agency until the next meeting and minutes of an executive session;
  • Real estate appraisals, environmental reviews, audits or evaluations relating to an agency's proposed lease, acquisition, or disposal of real property. The exemption no longer applies once the decision to lease, acquire or dispose of the property is made.
  • Library circulation records and certain archived materials;
  • Records identifying the location of an archeological site or an endangered or threatened plant or animal species if not already publicly known;
  • Proposals relating to agency procurement or disposal of supplies, services or construction prior to the award of the contract or the opening and rejection of all bids. Financial information of a bidder or offeror;
  • Communications between an agency and its insurance carrier, administrative service organization, or risk management office. This exemption does not apply to contracts between agencies and these entities or to financial records relating to the provision of insurance;
  • Records identifying individuals who apply for or receive social services or disclosing the social services received by an individual.
  • Correspondence between a person and a legislator that would identify a person requesting assistance or constituent services. This exemption does not apply to communications from lobbyists.
  • Records identifying the name, home address, or date of birth of a child 17 years of age or younger.

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What if a public record has some non-public information in it (like a social security number)?

Redaction. Under the law, the agency is required to release the record. It may redact (strike-out) the non-public information.

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How do I ask for a record?

Direct requests to an agency's open records officer. The law requires each agency to appoint an "open records officer." Contact information for each agency's open records officer must be posted at the agency and on the agency's Internet website, if one exists. You must direct your request to the agency's open records officer. If you send our request to the wrong person, public employees must forward it to the open records officer. This may delay the response, however, and should be avoided if possible.

Manner of request. You can make a request in person, by mail, facsimile or e-mail.

Substance of request. A written request should identify or describe the records sought with sufficient specificity so that the agency can determine which records you are seeking and must include the name and address to which the agency should address its response. You do not have to tell an agency why you want a particular record.

Request form. The Office of Open Records will develop a uniform form which must be accepted by Commonwealth and local agencies. The form is required to be posted at the agency and on an agency's website, if it has one. The law does not require you to use the form to make a request, but your request must contain the information listed above.

Courts and Legislature. Judicial agencies and Legislative agencies may develop their own forms. Again, you are not required to use these forms, provided that your request contains the necessary information.

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How long does an agency have to respond?

5 business days. An agency is required to respond to a request as promptly as possible under the circumstances, which shall not exceed five business days.

Requests for Extensions. Under certain circumstances, such as when legal review or redaction are necessary, records are stored in a remote location, or where a request is extensive, an agency may take up to 30 more days to provide access to or copies of the records. The agency must still notify the requester of this "extension" within 5 business days of receipt of the original request.

Deemed denial. If an agency does not respond within 5 business days, the request is deemed denied. If an agency has sought an extension, but does not provide access within the 30 additional days, the request is deemed denied, unless the requester has agreed in writing to an extension. If your request is denied or deemed denied, you may file an appeal, as discussed below.

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How much will it cost?

Duplication fees. The Office of Open Records will set duplication fees for Commonwealth and local agencies. Legislative agencies and judicial agencies may establish their own fees. Any such fees must be reasonable and based upon fees for comparable duplication services provided by local business entities. Fees for local agencies may reflect regional price differences.

Postage. Agencies may also collect fees for postage (actual cost only) and reasonable certification fees, where certification is requested by the requester.

Fee waiver. Agencies may also waive fees at any time.

"Complex and extensive datasets." In certain, very limited circumstances, agencies are permitted to charge fees based on the reasonable market value of records. This increased fee provision only applies to requests for "complex and extensive datasets," such as geographic information systems databases or integrated property assessment list databases. The increased fee provisions do not apply to media requesters or to nonprofit organizations conducting educational research.

Limitation on fees. Except as provided by statute, no other fees may be assessed unless an agency necessarily incurs costs for complying with a request, and any such fees must be reasonable. An agency may not charge for the agency's review of a record to determine whether it is public.

Prepayment. Agencies may require prepayment where fees are expected to exceed $100.

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What if the agency denies my request?

Denials. An agency denial must include:

  • A description of the record requested;
  • The specific reasons for the denial, including citation of supporting legal authority;
  • The name, title, business address and telephone number, and signature of The open records officer;
  •  The date of the response; and
  • The appeals procedure.

Deemed denials. Remember, if an agency does not respond within 5 business days of receiving your request, your request is deemed denied.

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How do I file an appeal?

Local and State Agency denials. Except as stated below, all denials or deemed denials from local and Commonwealth agencies are appealable to the Office of Open Records, an administrative agency within the Department of Community and Economic Development. That Office will issue rules regarding the appeal process.

Denials from judicial agencies and legislative agencies. The law permits judicial agencies and legislative agencies to appoint their own appeals officers, and any appeal regarding these agencies should be filed with the appropriate appeals officer, as identified by the individual agencies. These agencies are expected to issue rules regarding this process.

Denials from the State Treasurer, Auditor General, Attorney General, county District Attorneys (criminal records only). The law also permits the State Treasurer, the Auditor General, and the Attorney General to appoint their own appeals officers. As a result, any appeal regarding these agencies should be filed with the appropriate appeals officer, as identified by the individual agencies. In addition, the district attorney of a county may appoint an appeals officer to hear local appeals relating to access to criminal investigative records only. These agencies are expected to issue rules regarding the process as well.

Timing and content of administrative appeal. Any appeal must be filed within 15 business days of the mailing date of a denial or 15 business days of a deemed denial. The appeal must explain why you believe the requested record is a public record, legislative record, or financial record and must address any grounds stated by the agency for delaying or denying the request.

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What is the Office of Open Records, and how will it help me?

Office of Open Records. The new Law creates the Office of Open Records, housed in the Department of Community and Economic Development. The Office hears most open records appeals (with the limited exceptions set forth above), holds hearings, issues orders, issues advisory opinions, and provides training, among other things. The Office will issue rules regarding its operation and procedures in the coming months.

Final Determination. Unless the requester agrees otherwise, the Office shall make a final ruling on an appeal within 30 days. If the office does not do so, the appeal is deemed denied.

Appeal to Court. A party may appeal an Office of Open Records determination (or deemed denial) by filing a court action. If the case relates to a Commonwealth agency, any appeal would
be filed with the Commonwealth Court. Appeals from local agency denials are filed with the county court of common pleas.

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What penalties are available under the law?

Civil Penalty. A court may impose a civil penalty of up to $1500 against an agency that denied access in bad faith.

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What about attorneys' fees?

Attorneys' fees. A court may award attorneys' fees to a requester if an agency acted in bad faith in denying access or based its denial on an unreasonable interpretation of the law. A court may also award attorneys' fees to an agency or a requester if a court finds that the legal challenge was frivolous.

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How does the law treat Penn State and other state-affiliated universities?

Financial disclosures. State-related universities, such as Temple University, The University of Pittsburgh, The Pennsylvania State University, and Lincoln University are required to make public annual reports, which must include the following:

  • Information contained in Form 990 of the IRS (except for individual donor information);
  • The salaries of all officers and directors; and
  • The highest 25 salaries paid to employees.

Effective Date. These provisions take effect on July 1, 2008.

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Where can I find state contract information online?

Online contract information. The Law requires Commonwealth, legislative and judicial agencies to file contracts of $5,000 or more with the Treasury Department, for posting on the Treasury Department's publicly accessible Internet website. The Treasury Department will post the contract itself or a contract summary in a searchable database.

Effective Date. These provisions take effect on July 1, 2008.

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Will other records be available online as well?

Yes. Agencies across the Commonwealth are moving in this direction and making many more records available online. This Law encourages agencies to post more public records online by allowing an agency to respond to a request by notifying a requester that the requested record is available through publicly accessible electronic means.

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