Q: Many of our local agencies routinely take a 30-calendar-day extension, usually for legal review, to respond to Right-to-Know Law requests, even for simple, obviously public records like meeting minutes. Should they do that, and can I challenge these extensions?

A: The RTKL requires agencies to respond, in writing, to written requests for records “as promptly as possible under the circumstances but not longer than five business days. Within that time, an agency must respond by granting access, denying access and explaining why and how to appeal, or if appropriate, by requesting an additional 30 calendar days in which to respond.

The Pennsylvania appellate courts have recognized that timeliness and efficient resolution of requests are critical aspects of the RTKL. For example, our Supreme Court has held that “[T]he legislative intent for efficient resolution of RTKL requests is justifiable given that the public’s interest in government documents is often time dependent.” Levy v. Senate of Pennsylvania, 619 Pa. 586, 619 (2013). Indeed, “various provisions of the RTKL demonstrate an intent for an expedited determination of RTKL requests,” Levy, 619 Pa. at 619 (citing 65 P.S. § 67.1101; 65 P.S. § 67.1301), because “the overriding purpose of the RTKL . . . relate[s] to ensuring expanded and expedited transparency in our government,” id. at 620 (emphasis added). Moreover, the law requires agencies to operate in good faith and allows for the imposition of fines and other penalties if they do not. See 65 P.S. § 67.901; 65 P.S. § 67.1304; 65 P.S. § 67.1305.

With that framework as its foundation, the law allows agencies to extend the time for response only in specific, limited circumstances under Section 902, including:

(1) the request requires redaction;

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

(3) a timely response to the request cannot be accomplished due to bona fide and specified staffing limitations;

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

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

(6) the requester refuses to pay applicable fees authorized by this act; or

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

If an agency requests an additional 30 calendar days, the agency must notify the requester and provide 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 requester agrees to an extension in writing. If the requester does not agree to an extension of time, the request is deemed denied and the requester can pursue appellate rights.

Agencies that take additional time permitted by Section 902 in all cases, regardless of the nature of the request or the facts and circumstances existing when the request was made, may be acting in bad faith and could be subject to penalty.

The Office of Open Records does not have statutory authority to impose sanctions, but a court of law is empowered to review agency actions and impose penalties in appropriate circumstances. To pursue the bad faith sanctions under the law, evidence of bad faith is necessary such as repeated examples of unjustified or inappropriate extensions like legal review needed to determine if meeting minutes are public or a policy or practice of taking an extension in every case. The law simply does not envision, nor does it allow, agencies to take an additional 30 calendar days for all records requests, and agencies should not impose this kind of delay without a legitimate, statutorily permitted justification.

PNA recommends contacting an experienced public access litigator to pursue bad faith allegations in court if your news organization is facing this kind of barrier to access. This is not intended to be, nor should it be construed as, legal advice. Please contact your news organization’s attorney or the PNA Legal Hotline at (717) 703-3080 with questions.