Q: My reporting focuses on data, and I routinely request complex data sets like GIS records from public agencies. Some agencies have given me fee estimates based on market rates, sometimes in the thousands of dollars. Isn’t there a fee exception for media requesting complex data sets under the Right to Know Law (RTKL)? Can I appeal the fee estimates, even though the agency hasn’t issued a denial letter?
A: Yes, there is a fee exemption for journalists seeking access to complex data sets under the RTKL, and the imposition of fees is appealable to the Office of Open Records even if there is no denial.
Section 1307 of the Right to Know Law governs the fees that agencies can charge for access to public records, and this section of the law also requires the Office of Open Records (OOR) to set the fees for local and Commonwealth agencies. The OOR’s general fee schedule allows agencies to charge up to $.25 per page for black and white paper copies and impose other charges related to records requests. With regard to electronic records, the OOR allows agencies to charge up to $3.00 for electronic records provided on disk or DVD, actual cost for electronic records provided on a flash drive, and no additional fees are permitted for electronic records provided via email. The RTKL does not permit agencies to charge for an agency’s review of a record to determine whether the record is a public record subject to access under the RTKL. Likewise, no fee may be charged for searching for or retrieval of documents, and an agency may not charge staff time or salary for complying with a RTK request.
In addition to the general fee provisions discussed above, section 1307(b)(4) permits agencies to charge “reasonable market value” for copies of complex and extensive data sets, like geographic information systems or integrated property assessment lists. However, the law does not permit agencies to charge this market-based fee to requestors connected with a newspaper or magazine of general circulation, weekly publication, press association or radio or television station, when the request is made for the purpose of obtaining information for publication or broadcast.
If a member of the press requests copies of complex or extensive data sets as part of the newsgathering process, the agency may only charge fees authorized by the OOR as part of the general fee structure, i.e. $3.00 for a disc or DVD, the actual cost of a flash drive, etc.
PNA advises journalists to cite section 1307(b)(4)(ii)(A) and its fee limitations when making requests for complex data sets under the RTKL, and to note in the request that the records are being sought for the purpose of obtaining information for publication.
In the event that it is necessary, the imposition of fees is appealable to the Office of Open Records, even if the requested records have not been denied. See Prison Legal News v. Office of Open Records, 992 A.2d 942 (Pa. Commw. Ct. 2010); State Employees Ret. Sys. v. Office of Open Records, 10 A.3d 358 (Pa. Commw. Ct. 2010). The general rules governing appeals, found in section 1101 of the RTKL, apply to fee-only appeals, and requesters must file an appeal within 15 business days of the agency’s response, as well as comply with all other administrative appeal requirements.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact the PNA Legal Hotline at (717) 703-3080 with questions or for assistance with the OOR appeal process.