Legal Hotline: Right to Know Law extension challenge

  • May 26, 2016

Melissa Melewsky, Media Law Counsel

Q:  A local agency routinely takes an additional 30 days to respond to RTKL requests, seemingly without regard to the nature of the records or the complexity of my requests. For example, I requested access to two employees’ salary records, and the agency took an extension for legal review.  Can I appeal these extensions to the OOR?

A: The RTKL does not contain an appeal mechanism to allow requesters to appeal a 30-day extension by an agency, but the law requires agencies to operate in good faith and respond as promptly as possible, and failure to so do could lead to the imposition of penalties by a court.

Section 901 of the RTKL requires agencies to make a good faith effort to determine if a requested record is public under the law, and to respond to requests “as promptly as possible under the circumstances,” but not longer than five business days from the date a request is received. 

Section 902 of the RTKL allows agencies to take up to 30 additional calendar days to respond to requests if the agency  can show one of the following apply: 

(1)  the request for access requires redaction;

(2)  the request requires the retrieval of a record stored in a remote location;

(3)  a timely response to the request for access cannot be accomplished due to bona fide

and specified staffing limitations;

(4)  a legal review is necessary to determine whether the record is subject to access;

(5)  the requester has not complied with the agency's policies regarding access to records;

(6)  the requester refuses to pay applicable fees; or

(7)  the extent or nature of the request precludes a response within the required time period. 

If an agency takes an extension, it must do so within the initial five business days permitted by section 901, and the agency must explain, in writing, the reason for the extension and a date by which a response will be provided. 

If an agency acts in bad faith or relies on an unreasonable interpretation of the law, a court can impose penalties in the form of court costs and attorneys fees to requesters who have been denied access.  

 

The RTKL is intended to provide quick, efficient access to public records.  The 30-day extension is the exception to the general rule, and extensions should not be taken unless necessary.  Journalists regularly encountering barriers to timely access can discuss the issue with the agency and remind them of the requirements of the law and its potential penalties. 

 

As always, this is not intended to be, nor should it be construed as, legal advice.  Please contact your news organization’s private attorney or the PNA Legal Hotline with questions.

 

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