Legal Hotline: RTKL Time Extension Voluminous

  • Oct 04, 2017

Melissa Melewsky, Media Law Counsel

Q: An agency requested an additional 30 days in which to respond to my Right to Know Law request. The agency’s estimated response date gives them 30 business days to produce a final response. I thought agencies were limited to 30 calendar days. Which is correct: 30 business or 30 calendar days for an agency’s time extension? Are there any appellate court decisions allowing agencies to extend the time for response even further?

A: The Right to Know Law allows agencies to extend their response time by 30 calendar days in appropriate circumstances. A recent decision by the Commonwealth Court could allow agencies additional time to respond to a voluminous request, but only with permission of the Office of Open Records or the requester.

Section 901 of the Right to Know Law requires agencies to respond, in writing, to written requests for records as promptly as possible, but not to exceed 5 business days. Within that time, an agency must respond by granting access, denying access or when appropriate under section 902, request an additional 30 calendar days to respond. The Office of Open Records’ website includes “Tips from the Executive Director,” which illustrates the 30 calendar day rule. You can read the document here.

An agency can request additional time in a number of circumstances, including the need for redaction, legal review, bona fide and specified staffing limitations, remote storage of records, failure to follow agency RTKL procedure, failure to pay applicable fees, or where the nature of the request requires additional time. Section 902(b) of the Right to Know Law states that when an agency requests an additional 30 calendar days, the agency must notify the requestor that the request is being reviewed, the reason for the review, a fee estimate and a reasonable date that a response is expected. If the expected response date exceeds the 30 calendar days permitted by law, the request is deemed denied unless the requestor agrees to an extension in writing. 

In addition to the statutory provisions allowing extension of time in limited circumstances, the Commonwealth Court recently held that when a request is extremely voluminous, the OOR can grant additional time so that the agency can reasonably discern whether any exemptions apply. See Pa. State Sys. of Higher Educ. v. Ass’n of State College and University Faculties, ___ A.3d ___, 2016 Pa. Commw. LEXIS 308 (July 6, 2016). 

In that case, a requester sought access to records from all 14 PASSHE schools, with the agency estimating that the request could cover as many as 1.4 million records. PASSHE denied the request, arguing that it was not sufficiently specific and that the agency did not have the time or resources to review the records within the timeframe of the RTKL. The Court held that “[T]he agency… has to provide the OOR with a valid estimate of the number of documents being requested, the length of time that people charged with reviewing the request require to conduct this review, and if the request involves documents in an electronic format, the agency must explain any difficulties it faces when attempting to deliver the documents in that format.” 

This time extension provision does not appear in the text of the law, and there is no process by which to pursue it. The OOR has not created a formal policy to deal with these requests, but it has said that it will address each request on a case-by-case basis. It is not clear if requesters are required to be provided notice of an extension request or if the OOR would consider objections from requesters, but media organizations opposing additional time extension should submit a formal, written statement in opposition in appropriate circumstances. 

It also worth noting that section 902 of the law allows requesters to grant additional time to respond to agencies in any circumstance, and many requesters making large requests do so. When granting additional time to an agency, media organizations should be sure to put the agreement in writing and clearly state the agreed upon deadline so that an appeal can be taken if necessary. 

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

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