Pennsylvania’s new Right-to-Know Law is now just over three months old and already there has been a number of Advisory Opinions and Final Determinations issued by the Office of Open Records (OOR) providing guidance as to OOR’s interpretation and enforcement of the Act.

 

The Executive Director in her message on the Open Records website states that open and honest government “can only be attained through the unfettered exchange of information between citizens and their government”. This statement is clearly reflected in the opinions and decisions from the OOR.  

 

The Right-to-Know Act was signed into law on February 14, 2008 and became fully effective on January 1, 2009. The Act clearly weighs in on the side of the presumption of openness. The decisions out of the OOR support their view that most records are public if it “documents a transaction or activity of an agency and it is created, received or retained pursuant to law or in connection with a transaction, business or activity of an agency.”

 

A summary of the most interesting decisions follows:

 

behalf of the Borough of Franklin Park, the OOR has indicated that if an agency chooses to make audio, video or digital recordings of a public meeting, such recordings are public records. Even if the tape is used for minute preparation, such tape is not considered a “minute” or a “draft minute”. OOR goes on to state that if a written public record retention and disposition policy or schedule is in place it can provide immunity from the penalties of non-compliance with the Act. Without such policy in place, the agency risks imposition of penalties if such tapes are not provided. In fact, if such tapes are generally destroyed after finalization of the written minutes and a request is made prior to destruction, the tape must be provided under the Act.

 

Bowders v. York Township - In this matter, the Township supervisors and developers had sent and received emails using the township email addresses. Such emails are not retained or stored by the Township but are bounced from their server and rerouted to a private email address or private business email address of the township officials. The OOR found that emails sent and received to a private or secondary email address are still public records subject to the Act. The OOR indicated that the legislative purpose of the Act would be thwarted if agencies were permitted to reroute what would otherwise be a public record to a server over which it has no control without retaining copies. The OOR also indicated that if the Township continued this practice it could be construed as obstruction of the Right-to-Know Law. The OOR did concede that it had no authority over the private individuals or corporations to compel them to provide such emails to the agency to provide to the requestor.

 

Diperna v. Churchill Borough - The OOR indicated that requests for answers to questions or explanations are an inappropriate use of the Right-to-Know Law and such requests can be appropriately denied.

 

Litz v. Glen Rock Borough - The OOR found that the Borough satisfied its obligations under the Right-to-Know Act, when they denied a portion of the requested documents on the basis that the documents did not exist. The OOR did require the Borough to provide a separate attestation document to verify that such documents did not exist to supplement the record with the OOR. Such attestation form was not available on the Office of Open Records website.

 

In an advisory request related to costs of copying the OOR indicated that you cannot charge for supplying electronic copies of documents, unless you have copied and scanned a bound volume which was then supplied electronically. The OOR has consistently held that fees must be based upon actual out-of-pocket expenses.

 

Signature Solutions v. Aston Township - The requestor was denied a document in paper form and was informed that such document was available electronically and was given the reference to such availability. The OOR found that such denial was in violation of the Right-to-Know Law. The OOR found that having a document available on a website by electronic means does not relieve the agency of providing the documents. The Agency is required to convert and provide the documents within the statutory period under the Act. This decision has been appealed by the Township.

 

In a response to a request for clarification the OOR has indicated that the five (5) business day response time is calculated starting the day after the request is received. The business day requirement also follows the agency’s business days. For example, if the Agency is only open on Monday, Wednesday and Friday and a request is received on Monday, the five (5) business days would expire on the second Friday after the request was made.

 

It would appear that the OOR has taken a very literal stand in interpreting the Act, and some surprising decisions and opinions have been produced. Should you need additional guidance in interpreting the Act, completing a retention and disposition schedule and policy as well as creating and obtaining forms such as the attestation form, necessary to comply with the Act, please contact the Municipal Law Department at CGA.