Legal Hotline: Right to Know response time calculation

  • Oct 29, 2015

Melissa Melewsky

Q: I submitted a RTKL request to a local agency’s general email address on Monday morning, but didn’t hear back from them until Friday, when the RTKL officer “acknowledged receipt” of my request via a reply email.  The message also said that the agency is beginning the RTKL time calculation on Friday rather than the day I actually emailed my request. Is that right?

A:  For the time calculation to start immediately, you must email the agency’s Right to Know Officer directly, as the Right to Know Law’s response time provision has been interpreted by the Pennsylvania Supreme Court to start running against an agency when the agency’s RTKL officer actually receives the written request.

Section 901 of the Right to Know Law (RTKL) requires agencies to respond, in writing, to written requests for access “as promptly as possible under the circumstances, but not to exceed five business days.” In Office of the Governor v. Donahue, the Supreme Court of Pennsylvania evaluated a case in which an RTKL request was emailed to an agency, but not received by the agency’s RTKL officer until 5 days later, at which time the agency responded. 

The Court was called upon to decide whether section 901’s response requirements and time limits begin to run when any agency employee receives the request or when the agency’s appointed RTKL officer receives the request.  Based on its interpretation of the plain language of section 901, the Court decided the response requirements and time limits do not being to run until the agency’s designated RTKL officer actually receives the request.

This holding is problematic because requesters who mail a request may have no way of knowing when a RTKL request is “actually received” by the agency’s RTKL officer, making it difficult, if not impossible, to determine when a request becomes appealable as a “deemed denial” for the agency’s failure to answer.  Moreover, there have been instances where agencies’ internal mail processing and administrative procedures surrounding RTKL requests have resulted in significant delays. As a result, PNA advises members to email RTKL requests directly to an agency’s appointed RTKL officer whenever possible, and to confirm the identity of that officer before sending the request.

Section 502 of the RTKL requires agencies to designate a specific employee to receive RTKL requests, and section 504 requires agencies to make the RTKL officer’s contact information available in the office and on the agency’s website.  The OOR is also tasked with maintaining a list of all registered RTKL officers and publishing the list on its website. Nevertheless, the  PNA is aware of several instances where the RTKL officer listed on agency’s and the OOR website are missing, incorrect or incomplete.  As a result, it is a good practice to call an agency to confirm the name and contact information for the RTKL officer prior to sending a request. 

As always, this is not intended to be, nor should it be construed as, legal advice.  Please contact your newspaper’s attorney or the PNA Legal Hotline at (717) 703-3080 with questions.

 

 

 

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