passopenrecords.org

Today we finish with Teri Henning’s comparison of the three open-records bills pending in the Pennsylvania legislature.

Let us and our readers know which bill you like best . . . or which parts of which bills.

Senate Bill 1 Prime Sponsor: Sen. Dominic Pileggi (R-Delaware)
Senate Bill 765 Prime Sponsor: Sen. Jim Ferlo (D-Allegheny)
House Bill 443 Prime Sponsor: Rep. Tim Mahoney (D-Fayette)

• Time for agency response:
SB1: 5 business days for initial response. This is a change for state agencies, which currently have 10 business days for initial response. Agencies may still request up to 30 additional days due to legal review, redaction, retrieval of documents stored in remote location, or staffing limitations.

SB765: Bill retains current timelines for initial response – 10 business days for Commonwealth (state) agencies, 5 business days for Non-Commonwealth (local) agencies. Both current law and SB765 permit an agency to extend the response time up to 30 days for redaction, legal review, retrieval of documents stored in remote location, or staffing limitations.

HB443: 20 business days when seeking records from state agency; 10 business days for local agencies (except when agency seeks extension – then local agencies must respond within 5 business days). Current law requires state agencies to respond within 10 business days and local agencies to respond within 5 business days. Bill continues to permit an agency to extend response time by 30 days due to redaction, legal review, retrieval of documents stored in remote location, or staffing limitations.

• Administrative office to handle appeals?
SB1: Yes. Bill creates an “Open Records Clearinghouse” within the Department of Community and Economic Development. Clearinghouse would: 1) provide information; 2) issue advisory opinions; 3) conduct training; and 4) hear administrative appeals relating to records denials by state and local agencies. Decisions made by Clearinghouse could be appealed to court. Courts, Senate, House of Representatives, and other legislative agencies would designate their own “exceptions officers” to review requests that are denied (not Clearinghouse). Citizens could file appeal with court.

SB765: Yes. Bill creates “Office of Access to Public Records” as an independent, administrative agency. The office will: 1) hear administrative appeals; 2) provide advisory opinions; 3) provide the public and agencies with information relating to public records; and 4) conduct training. Parties can appeal the Office’s decisions to court.

HB443: Yes. Bill creates “Commonwealth Office of Access to Public Records” (OATR), an independent administrative agency. The OATR acts as a centralized office to handle requests for Commonwealth (state) agency records. Local agencies still handle requests directly from the public. The OATR also provides information about public records, conducts training, and hears administrative appeals of record denials (presumably from its own decisions?). OATR decisions may be appealed to court.

• Fines/Penalties
SB1: Increases fines for willful violations to $1,000 (from $300) plus costs of prosecution (first offense); subsequent offenses - $2,000 plus costs of prosecution. Increases civil penalties, where agency or official does not comply with court order, to $500 per day (from $300 per day) until public records provided.

SB765: Increases fines for willful violations to $500 (from $300). Permits court to order mandatory training for agency officials and employees.

HB443: Increases fines for willful violations by agencies to $1,000 (from $300). Provides for civil penalty where legal challenge is frivolous of $1,000-$10,000. Provides for civil penalty where requester brings frivolous/bad faith appeal of $100-$1,000. Permits court to order mandatory training for agency officials and employees.

• Fees
SB1: Leaves current fee language in place, except authorizes the Clearinghouse to set fees for Commonwealth agencies and local agencies. Allows courts and legislature to set own fees (subject to language in statute requiring fees to be reasonable).

SB765: Requires that fees for duplication be similar to duplication fees at local copying services. Prohibits fees for “search time” unless the required search places an unreasonable burden on agency employees, and the agency can establish and itemize its costs for complying with the request. Any such fees must be reasonable.

HB443: Fees for duplication must be similar to duplication fees at local copying services. Prohibits fees for agency’s “search time” except where search places unreasonable burden on agency employees and agency can establish and itemize its costs for complying with the request. Any such fee must be reasonable.

• Other Issues – Commercial Use
HB443 makes it unlawful to obtain records for a “commercial purpose” unless the requester has identified the commercial purpose when required by an agency. It is also unlawful to use or knowingly allow the use of the record for a different commercial purpose, or obtain the record for a noncommercial purpose and then use or knowingly allow the use for a commercial purpose. Commercial purpose is undefined, although mere publication by newspapers, periodicals, and radio or television stations is not a “commercial purpose.” Those violating this section are liable for three times the amount that would have been charged if the commercial use was disclosed, costs, attorney fees, and any other penalty established by law.