Opening Slide

1. Opening Slide

2. General Highlights Highlights of New Law • Effective Date of January 1, 2009 • Creates a new open records procedure and structure locally • Creates a new open records procedure and structure for appeals • Switches the “presumption” of openness to the local agency from the requester

3. General Highlights Important Definition #1 • “Public record.” A record, including a financial record of a Commonwealth or local agency that : (1) is not exempt under section 708; (2) is not exempt from being disclosed under any other Federal or State law…; or (3) not protected by a privilege.

4. General Highlights Important Definition # 2 • “Record.” Information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency. The term includes a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.

5. Exceptions • There are thirty (30) exceptions under Section 708 for public records. • The exceptions provide a legal basis for denying an open record request. • The local agency has the burden of proving that a record is exempt from public access by a preponderance of the evidence.

6. Specific Exceptions • Section 708(b)(3): • A record that, if disclosed, would create a reasonable likelihood of endangering the safety or security of a building, public utility, infrastructure or information storage system

7. Exemptions (conti) Public Utility Confidential Security Disclosure Protection Act, 35 P.S. 2141.14 Effective Date: May 28, 2007

8. Public Utility Confidential Security Disclosure Protection Act, 35 P.S. 2141.14 • Prohibits Municipal Authorities from releasing confidential security information about public utility service • “Confidential Security Information” • Any information that would compromise security of the Authority’s facility if disclosed • Examples: • Portions of Emergency Response Plan • Plans showing location of community drinking water wells

9. Exemptions (conti) • Other Highlighted Exemptions • Personal Identification Information (708(b)(6) • Social Security Numbers, Personal Financial Information, Driver’s License Numbers, Spouse’s Name, Marital Status, etc. • Personnel Records of Public Employees (708(b)(7)) • Performance Reviews, Letters of Reference, Applications of those not hired, Grievance materials, Academic transcripts

10. Exemptions (conti) • Other Highlighted Exemptions • Records of Internal, Pre-decisional deliberations (708(b)(10)) • Inc. pre-decisional deliberations relating to budget recommendations, legislative proposals, or proposed policies • Notes and Working Papers Used by Public Official or Employee SOLELY for Individual’s Personal Use (708(b)(12))

11. Getting Your House In Order for January 1, 2009 • Need to identify and appoint an Open Records Officer • Review and adopt Open Records policies and procedures • Must publicly post contact information for Open Records Officer and Open Records policies and procedures • Inventory types and extent of Agency records to increase response time to Requests

12. Requests • Municipality may fulfill the following types of requests for records: • Verbal • Written • Anonymous verbal • Anonymous written • BUT – if Requester wants to pursue the remedies under the Open Records Act, then Requestor must make a Written Request

13. Written Requests • May be submitted by following methods: • In Person • By Mail • By E-Mail • By Facsimile • By other Electronic Means, to the extent provided by agency rules • Must be Addressed to Open Records Officer • All employees of municipality must forward any requests they receive to the Open Records Officer • Universal request form will be developed by the Office of Open Records

14. Content • Written requests should “identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested, and shall include the name and address to which the agency should address its response.”

15. Access • Agency must provide records in the medium requested, if the record exists in that medium. • But if a record does not exist in the medium requested, then the record must be provided in the medium in which it exists.

16. Example: • Requester requests electronic copy of a specific residential building permit application. • Open Records Officer determines that Agency maintains only paper copies of building permit applications. • Agency must give the Requester: • The paper copy of the building permit application • No obligation to give Requester an electronic copy of the application since no applications exist in that medium.

17. Electronic Access to Records • Agency may make its records available through any publicly accessible electronic means, i.e. the Agency’s website • Proper responses to request for record stored on publicly accessible electronic medium: • Notify Requester that record is available through publicly accessible electronic medium, or • Provide access to Requester to inspect the record electronically • May be necessary if Requester does not have his or her own access to internet

18. Response to Written Request • General Procedure • Request to be forwarded to Agency Open Records Officer • Agency has five (5) business days to respond from the date of receipt of response by Open Records Officer • Failure to respond within five (5) business days will be deemed a denial of the request • Consult Agency policies and procedures • If needed, consult with Solicitor

19. Specific Actions for Open Records Officer • If Record is public record and within possession, custody or control of Agency, Open Records Officer shall determine if one of the following applies: • Redaction • Remote Location • Staffing Limitations • Legal Review • Requester has not Complied with Agency’s Policies • Requester Refuses to Pay Applicable Fees • Nature of Request

20. If Five Days Is Not Enough • Send written notice to requester within five (5) business days • Indicate that request is being reviewed • Reason for review • Reasonable date to expect response • Estimate of applicable fees owed when record is available

21. Granting Request • If the Agency has determined that the requested record is public, the Agency must make the record available. • If request is for multiple records, Agency may make available copies of the records at the Agency’s office in lieu of mailing • If Requester does not pick up documents within sixty (60) days, Agency may dispose of copies AND retain any fees paid to date

22. Denial of Request • What happens when Agency must DENY Request • Denial must be in Writing, and include: • Description • Specific Reasons, including Legal Authority • Open Records Officer’s contact information • Date of Response • Procedure to Appeal Denial

23. Fees • Postage • May not exceed actual cost of postage • Duplication • Office of Open Records shall determine fees for duplication by photocopying, printing from electronic media or microfilm, copying onto electronic media, transmission by facsimile • Fees must be reasonable and may vary regionally • Certified Copies • If Requester requests certified copy of the record • Agency must provide certified copy AFTER Requester pays applicable fee

24. Fees Continued • Municipality may waive fees at any time • If Municipality actually incurs additional costs for complying with the request, it may impose additional fees, which must be reasonable • NO FEE may be imposed for the Municipality’s review of a record to determine if record is subject to access • If estimate of fees is greater than $100, Municipality may require Requester to prepay the fee

25. Initial Appeal From Agency Decision • When Agency denies the written request for a record, Requester may file appeal with Office of Open Records within fifteen (15) business days from the mailing date of Agency’s response • Appeal must • State reasons why Requester asserts record is subject to a access • Address any reasons given by Agency for denying request

26. Appeal to Court of Common Pleas • Within thirty (30) days of Appeals Officer’s decision • Requester or Agency may file a Petition for Review • In Court of Common Pleas in county where Agency is located • Petition for Review will stay the release of the documents

27. Attorney Fees • May be awarded to Requester if the Court grants access to the record after denied, AND the denial by the Agency was done in bad faith or not based on “reasonable interpretations of law.” • May be awarded to Requester or Agency if the appeal is deemed frivolous

28. Possible Penalties • May be imposed by Court • If Agency denied request in bad faith • Penalty maximum is $1500 • If Agency fails to comply with Court Order • Penalty is up to $500 per day until records are provided

29. Immunity • No Agency or public official or employee shall be liable for civil penalties if agency, official or employee fails to comply with the act • UNLESS the penalty is imposed due to Agency’s, Public Official’s or Public Employee’s bad faith

30. Thank You! Charles M. Means Elizabeth P. Sattler, Esquire Goehring, Rutter & Boehm Frick Building 437 Grant Street, 14th Floor Pittsburgh, PA 15219 (412) 281-0587 cmeans@grblaw.com esattler@grblaw.com