passopenrecords.org

On February 14, 2008, Governor Rendell signed Act 3 of 2008 into law, which is a complete overhaul of the Right to Know Law. Although some provisions take effect immediately (those establishing an Open Records Office) and others take effect on July 1, 2008 (requiring state-related institutions to make certain financial information public and requiring the on-line posting of state contract information), the bulk of the new law takes effect on January 1, 2009. You can find the new law here.

Teri Henning, general counsel of the Pennsylvania Newspaper Association, who led the yearlong charge for an overhaul of the state’s open records law, has put together a good Question-and-Answer document on open records. Excerpts follow. Read Teri’s entire paper here.

What are the biggest differences between the old law and the new law?

The new law fundamentally changes the structure of Pennsylvania’s Right to Know Law. It begins with the presumption that state and local agency records are open for public inspection and copying and places the burden on a government agency denying access.

For the first time since the Right to Know Law was passed in 1957, it will include the
General Assembly and will give citizens the ability to appeal open records disputes to an administrative agency, the Office of Open Records, without the need to file a court action.

The new law guarantees access to public records in the possession of government contractors performing “governmental functions” on behalf of an agency, establishes an online, searchable database for state contract information, and requires state-affiliated universities to make certain financial information public.

The law also shortens agency response times and increases the civil penalties that can be awarded against an agency acting in bad faith.

Generally speaking, what records can I get under the new Right to Know Law?

The Right to Know Law guarantees your right to obtain public records from state and local agencies in Pennsylvania. It also guarantees your right to obtain legislative records from the Pennsylvania General Assembly and financial records from Pennsylvania’s judicial system.

The law does not apply to record requests to federal agencies. If you are interested in obtaining federal agency records, you must make your request under the federal Freedom of Information Act (FOIA). For more information on making a FOIA request, including a letter generator, see http://rcfp.org/foia/.

What are some examples of records that will be available under the new law?

• Community colleges are now covered agencies. As a result, their records are presumptively public;

• The PIAA (Pennsylvania Interscholastic Athletic Association) is now expressly covered;

• The Pennsylvania Higher Education Assistance Agency and its related entities are now expressly covered;

• Grant applications are public records (and not just the contracts reflecting funded grants);

• Records reflecting a public employee’s demotion or discharge are public;

• The General Assembly is now included as an “agency,” and the law expressly identifies a number of legislative records that are public, including financial records, manuals and written policies, and financial audit reports;

• Records that are presented to a quorum of an agency for deliberation at a public meeting (e.g., board packets), are public, with limited exceptions;

• 911 time response logs are public.

• The law provides for the creation of an online searchable database for state contract information.

• State-affiliated universities are now required to publicly disclose certain financial information, including the salaries of all officers and directors and salaries of the highest paid employees.

Many other records will be available as well, since the new law begins with the presumption that all state and local agency records are publicly available. As a result, you should be able to access any record that is not exempt under the law.

What agencies are covered by the new Right to Know Law?

The law covers Commonwealth agencies, local agencies, judicial agencies, and legislative agencies.

What records can I get from legislative agencies?

Legislative records are presumed open; burden is on agency. The new law begins with the presumption that all legislative records are publicly available – both for viewing and copying. The burden of proving that a legislative record is non-public (or that an exemption applies) is on the legislative agency denying access.

The presumption of access does not apply to legislative records that are: 1) protected by a privilege (e.g., attorney-client, doctor-patient); 2) exempt from disclosure under federal or state law; or 3) exempt under Section 708 of the Right to Know Law. Section 708 of the Law lists 30 categories of records that are exempt from disclosure.

The new law can be found here.