The authors thank Ashley Saul (J.D. candidate, University of Miami) and Brian Piper (J.D. candidate, University of Florida) for their important contributions and assistance in writing this chapter. The authors also give special thanks to Robert C. Clothier and Beth L. Weisser, whose efforts in writing the first edition of this guide laid the critical foundation upon which this chapter was built, as well as Terry Mutchler, for her contribution to this update.
Last updated Oct. 4, 2019
A requester need only be a “[a] person that is a legal resident of the United States.” 65 Pa. Stat. Ann. § 67.102. Thus, undocumented immigrants have no rights of access in Pennsylvania. However, the term “person” is not limited to individuals. See, e.g., Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609, 615 (Pa. Commw. Ct. 2009) (citing Tribune-Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008); Digital-Ink, Inc. v. Dep’t of Gen. Servs., 923 A.2d 1262 (Pa. Commw. Ct. 2007); Sapp Roofing Co., Inc. v. Sheet Metal Workers' Int’l Ass’n, 713 A.2d 627 (Pa. 1998); Tapco, Inc. v. Twp. of Neville, 695 A.2d 460 (Pa. Commw. Ct. 1997)).
The Right to Know Law (the “Law”) states that a commonwealth, local, legislative or judicial agency “may not deny a requester access to a record due to the intended use of the record by a requester unless otherwise provided by law.” 65 Pa. Stat. Ann. §§ 67. 301(b), 302(b), 303(b) & 304(b); see also § 703 (“A written request need not include any explanation of the requester’s reason for requesting or intended use of the records unless otherwise required by law.”). Indeed, agencies are forbidden from even asking for this information. See 65 Pa. Stat. Ann. §§ 67.1308 (expressly prohibiting agencies from creating a policy or regulation that requires a requester to “disclose the purpose or motive in requesting access to records”).
This is consistent with precedent set under the old, pre-2008 law known as the Right to Know Act [hereinafter, the “act”] holding that a requester’s purpose and intended use of the requested records are irrelevant to his or her right of access. See, e.g., Pa. State Educ. Ass’n v. Pennsylvania, 4 A.3d 1156, 1162 (Pa. Commw. Ct. 2016) (citing amendments to the 1957 Right-to-Know Law making the motive of a request irrelevant to accessibility of the record at issue); see also Wiley v. Woods, 141 A.2d 844, 849 (Pa. 1958); Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208, 213 (Pa. Commw. Ct. 1995); Hoffman v. Pa. Game Comm’n, 455 A.2d 731 (Pa. Commw. Ct. 1983).
Although the Law is silent, cases applying the old act have held that the act imposes no restrictions on subsequent use of the material obtained. See Hoffman v. Pa. Game Comm’n, 455 A.2d 731 (Pa. Commw. Ct. 1983) (rejecting Game Commission’s objections to access based on grounds that requester sought the information “for commercial purposes”) (interpreting prior version of Right to Know Act). Under the new Law, the rule persists.
The Law does not act as a bar to discovery or use of information in a civil proceeding. See Commonwealth v. Kauffman, 605 A.2d 1243, 1245-46 (Pa. Super. 1992) (interpreting prior version of Right to Know Act).
The Law identifies several different kinds of agencies and entities subject to access requirements: Commonwealth agencies, independent agencies, state-affiliated entities, local agencies, legislative agencies, judicial agencies, and state-related institutions.
The Law applies to the executive branch at the state and local agency level, both of which are defined in the Law.
Commonwealth Agency: This is defined as follows: “Any office, department, authority, board, multistate agency or commission of the executive branch; an independent agency; and a State-affiliated entity.” It includes: “(i) The Governor's Office; (ii) The Office of Attorney General, the Department of the Auditor General and the Treasury Department; and (iii) An organization established by the Constitution of Pennsylvania, a statute or an executive order which performs or is intended to perform an essential governmental function.” 65 Pa. Stat. Ann. § 67.102.
This definition includes an “independent agency” and “state-affiliated entity,” which are both defined separately. It does not include a judicial or legislative agency.
· An independent agency is defined as follows: “Any board, commission or other agency or officer of the Commonwealth, that is not subject to the policy supervision and control of the Governor. The term does not include a legislative or judicial agency.”
· A state-affiliated entity is defined as follows: “A Commonwealth authority or Commonwealth entity. The term includes the Pennsylvania Higher Education Assistance Agency and any entity established thereby, the Pennsylvania Gaming Control Board, the Pennsylvania Game Commission, the Pennsylvania Fish and Boat Commission, the Pennsylvania Housing Finance Agency, the Pennsylvania Municipal Retirement Board, the State System of Higher Education, a community college, the Pennsylvania Turnpike Commission, the Pennsylvania Public Utility Commission, the Pennsylvania Infrastructure Investment Authority, the State Public School Building Authority, the Pennsylvania Interscholastic Athletic Association and the Pennsylvania Educational Facilities Authority. The term does not include a State-related institution.”
This definition contains a “catch-all” provision that includes organizations that perform essential government functions. This provision is similar to the version contained in the old act, except that it no longer requires that the entity’s statutory origins “declare[] in substance or in purpose” such a function. Under the prior act, this catch-all was construed fairly narrowly, and applied only where “the organization provides constitutionally mandated services or services indisputably necessary to the continued existence of the Commonwealth.” See Safety, Agric., Villages & Env’t (S.A.V.E.) v. Del. Valley Reg’l Planning Comm’n, 819 A.2d 1235, 1241 (Pa. Commw. Ct. 2003) (citing Cmty. Coll. of Phila. v. Brown, 674 A.2d 670 (Pa. 1996)); see also Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609, 615-16 (Pa. Commw. Ct. 2009) (citing S.A.V.E., 819 A.2d at 1241).
Commonwealth agencies are required to provide access to “public records” as set forth in the Law. 65 Pa. Stat. Ann. § 67.301.
Local Agency: This includes “any of the following: (1) Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school. (2) Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity.” 65 Pa. Stat. Ann. § 67.102. Local agencies are required to provide access to “public records” as set forth in the Law. 65 Pa. Stat. Ann. § 67.302.
By its terms, the Law applies to public records of “the executive branch,” and specifically includes the governor’s office. The Law makes no accessibility distinction based on the function of the agency or office at issue.
The Law applies to “legislative agencies.” This “includes any of the following: (1) The Senate. (2) The House of Representatives. (3) The Capitol Preservation Committee. (4) The Center for Rural Pennsylvania. (5) The Joint Legislative Air and Water Pollution Control and Conservation Committee. (6) The Joint State Government Commission. (7) The Legislative Budget and Finance Committee. (8) The Legislative Data Processing Committee. (9) The Independent Regulatory Review Commission. (10) The Legislative Reference Bureau. (11) The Local Government Commission. (12) The Pennsylvania Commission on Sentencing. (13) The Legislative Reapportionment Commission. (14) The Legislative Office of Research Liaison. (15) The Legislative Audit Advisory Commission.” 65 Pa. Stat. Ann. § 67.102.
Legislative agencies are required to provide access to “legislative records” as set forth in the Law. Examples include financial records, bills or resolutions that have been introduced, and proposed regulations. The old act did not apply to the legislative branch of state government. See Commonwealth v. Fenstermaker, 530 A.2d 414 (Pa. 1987).
The Law applies to “judicial agencies.” This is defined as follows: “A court of the Commonwealth or any other entity or office of the unified judicial system.” 65 Pa. Stat. Ann. § 67.102.
However, judicial agencies need only provide access to “financial records” as set forth in the Law. See 65 Pa. Stat. Ann. § 67.304. In 2009, the Administrative Office of Pennsylvania Courts (“AOPC”) modified Pennsylvania Rule of Judicial Administration 509. See Pa. R.J.A. 509 (“The term 'financial records' is defined as any account, contract, invoice or equivalent dealing with: 1) the receipt or disbursement of funds appropriated to the system; or 2) acquisition, use or disposal of services, supplies, materials, equipment or property secured through funds appropriated to the system.”). By eliminating the phrase “custody or control,” the AOPC now permits access to judicial agency “financial records” even when that entity does not currently possess them.
The Law provides a number of examples where records in the hands of bodies receiving public funds or benefits are public records.
The Law expressly applies to certain records of “state-related institutions.” This includes Temple University, the University of Pittsburgh, Pennsylvania State University, and Lincoln University. 65 Pa. Stat. Ann. §§ 67.102, 67.1501. State-related institutions are required to file “reports” as set forth in 65 Pa. Stat. Ann. § 67.1502-1504.
The Law also states that:
“[A] public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function on behalf of the agency, and which directly relates to the governmental function and is not exempt under the act, shall be considered a public record of the agency for purposes of this act.”
65 Pa. Stat. Ann. § 67.506(d).
The Commonwealth Court has interpreted the phrase “directly relates to the governmental function” found in 65 Pa. Stat. Ann. § 67.506(d). See Edinboro Univ. of Pa. v. Ford, 18 A.3d 1278 (Pa. Commw. Ct. 2011); Giurintano v. Dep’t of Gen. Servs., 20 A.3d 613 (Pa. Commw. Ct. 2011) (holding that services performed on behalf of a private entity outside of the government contract are not accessible); Allegheny Cty. Dep’t of Admin. Servs. v. A Second Chance, Inc., 13 A.3d 1025 (Pa. Commw. Ct. 2011) (remanding the case to the trial court because it failed to hear evidence regarding the private entity’s government contract); Buehl v. Office of Open Records, 6 A.3d 27 (Pa. Commw. Ct. 2010); E. Stroudsburg Univ. Found. v. Office of Open Records, 995 A.2d 496 (Pa. Commw. Ct. 2010).
Pennsylvania courts analyze this phrase in two parts; the document must have: 1) a governmental function and 2) a direct relationship.
Under the first prong, the Commonwealth Court considered whether fundraising for a state university constitutes a “governmental function.” E. Stroudsburg, 995 A.2d at 499-500. Relying on Iowa case law, the court held that a non-governmental body performs governmental functions when it performs “normal government business.” Id. at 505 (citing Gannon v. Bd. of Regents, 692 N.W.2d 31 (Iowa 2005)). The Commonwealth Court construed the term “business” to mean any duty arising out of a contract with a government agency. Id. Hence, non-governmental entities’ records will be subject to the Law so long as they owe a contractual duty to a government agency. Id.
Under the second prong, Buehl considered whether contractual duties owed to a government agency directly related to records requested by an inmate. Buehl, 6 A.3d at 28. The Commonwealth Court affirmed the Office of Open Records’ denial of the inmate’s request for documentation of the wholesale cost of goods a private entity sold through a state prison’s commissary system. Id. The court distinguished records kept in the private company’s “normal scope of business” from those which directly relate to the performance of the government contract. Id. at 30 (citing E. Stroudsburg., 995 A.2d at 504); see also Office of Gov. v. Bari, 20 A.3d 634, 641 (Pa. Commwlth. Ct. 2011) (holding that when an agency appoints a member to a private non-profit board it is not transacting business with that organization). The court in Buehl reasoned that the private company’s obligations under the contract only pertained to the sale of goods in the prison and not the purchase of those goods from its supplier. Id. Hence, it held that the inmate had requested documents which were not “public records” under the language of 65 Pa. Stat. Ann. § 67.506(d)(2). Id.; see also A Second Chance, Inc., 13 A.3d at 1040 (remanding to the fact-finder to hear evidence on the relationship between the record requested and the government contract); compare A Second Chance, Inc., with Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009) (noting that provider agreements between a Medicaid managed care program and the Department of Public Welfare constitute “public records” subject to disclosure).
Note that the requester may not seek such records from the third party; rather, the requester must seek them from the agency: “A request for a public record in possession of a party other than the agency shall be submitted to the open records officer of the agency.” 65 Pa. Stat. Ann. § 67.506(d)(3).
Of course, if the legislature says that a particular body is an agency under the Act, then the body must comply with the Act’s requirements. Cf. Harristown Dev. Corp. v. Commonwealth, 614 A.2d 1128 (Pa. 1992) (where a private non-profit corporation that leases land, offices or accommodations to a Commonwealth agency for a rental amount in excess of $1.5 million per year was held to be an agency because the statute creating the non-profit corporation specifically stated that it was deemed an agency under the Sunshine Act) (interpreting 71 Pa. C.S.A. § 632(d)).
“State-related institutions:” The presence of 12 state-appointed trustees on a 36-member university board did not transform an essentially private university (a land grant university) into a state “agency” under the old act. Mooney v. Bd. of Trustees, 292 A.2d 395, 399 (Pa. 1972) (interpreting the old act). However, these “state-related institutions” (Temple University, The University of Pittsburgh, The Pennsylvania State University, and Lincoln University) are subject to provide an annual public report that includes salary information and “all information required by Form 990.”65 Pa. Con. Stat. § 67.1501-03.
The Law does not identify any such bodies.
No advisory boards, commissions or quasi-governmental bodies are explicitly identified in the Law. Under the old act, in effect before 2008, purely advisory entities were not considered agencies subject to the disclosure requirements of that law. See Safety, Agric., Villages and Env’t (S.A.V.E.) v. Delaware Valley Reg’l Planning Comm’n, 819 A.2d 1235 (Pa. Commw. Ct. 2003) (explaining that the Delaware Valley Regional Planning Commission is not an agency subject to the old law because it acts only in an advisory capacity and “cannot be considered an organization performing ‘essential’ services”).
None other than those identified infra.
The Right to Know Law requires that commonwealth and local agencies provide access to “public records,” that legislative agencies provide access to “legislative records,” and that judicial agencies provide access to “financial records.” 65 Pa. Stat. Ann. §§ 67.301-304. The Law states that such records are then “presumed to be available in accordance with the act.” 65 Pa. Stat. Ann. § 67.305; see also Edinboro Univ. of Pa. v. Ford, 18 A.3d 1278 (Pa. Commw. Ct. 2011) (holding that records are deemed “public” as soon as an agency “receives” them from a non-governmental entity). That presumption, however, “shall not apply” if the record is “exempt” under the Law, “protected by privilege,” or “exempt from disclosure under any other state or federal law or regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.305. Further, the requester bears the burden of proving that the agency possesses or controls the relevant records. See, e.g., Office of Gov. v. Bari, 20 A.3d 634, 640 (Pa. Commw. Ct. 2011); see also Bohman v. Clinton Twp. Vol. Fire Co., 1238 C.D. 2017, 2019 WL 2399964, at *8 (Pa. Cmmw. May 8, 2019).
The Law, however, has a large list of documents exempted from disclosure. The burden rests on the commonwealth, local, legislative or judicial agency to prove that the record is exempt. 65 Pa. Stat. Ann. § 67.708(a). The exemptions are set forth at 65 Pa. Stat. Ann. § 67.708(b).
The Law also has separate provisions providing for access to certain information and records of “state-related institutions” (65 Pa. Stat. Ann. § 67.1501-1503) and to certain “state contract information” (65 Pa. Stat. Ann. § 67.1701-1702).
The scope of records covered by the Law does not “supersede or modify the public or nonpublic nature of a record or document established in Federal or State law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306. Elsewhere the Law makes the same point clear: “If the provisions of this act regarding access to records conflict with any other Federal or State law, the provisions of this act shall not apply.” 65 Pa. Stat. Ann. § 67.3101.1. In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that. This is consistent with court decisions under the old act holding that “the generic definition of a ‘public record’ contained within the Right-to-Know Act [incorporates] by implication those specific definitions of public record contained in statutes allowing for public access to particular documents of particular agencies.” Marvel v. Dalrymple, 393 A.2d 494, 498 (Pa. Commw. Ct. 1978) (interpreting old act); see also Pa. State Police v. Office Open Records, 5 A.3d 473, 483 (Pa. Commw. Ct. 2010) (citations omitted); Jones v. Office of Open Records, 993 A.2d 339 (Pa. Commw. Ct. 2010) (holding 37 Pa. Code § 61.2 excludes probation and parole investigation reports from the definition of “public record”).
Under the old act, Pennsylvania courts held that even documents that are not available under the Right-to-Know act may still be subject to discovery under the Rules of Civil Procedure in a civil suit against a government agency. Commonwealth v. Kauffman, 605 A.2d 1243, 1245-46 (Pa. Super. 1992) (interpreting the old act). Compare Kauffman, with Pastore v. Commonwealth Ins. Dep’t., 558 A.2d 909, 913-14 (Pa. Commw. Ct. 1989) (where the court refused to allow documents to be discovered when they fell within the investigation exception to the Right-to-Know Law) (interpreting the old act). This principle should remain the law under the new law.
The Law provides access to the following kinds of records:
Public Records: Commonwealth and local agencies must provide access to “public records.” A public record is defined as follows: “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 regulation or judicial order or decree; or (3) is not protected by a privilege.”
The word “record” has an extremely broad definition and essentially covers any agency information or document:
“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.”
65 Pa. Stat. Ann. § 67.102.
Financial Records: Commonwealth, independent, local, legislative, and judicial agencies must provide access to financial records. 65 Pa. Stat. Ann. §§ 67.301-302, 304.
Financial records are any of the following:
“(1) Any account, voucher or contract dealing with: (i) the receipt or disbursement of funds by an agency; or (ii) an agency's acquisition, use or disposal of services, supplies, materials, equipment or property. (2) The salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee. (3) A financial audit report. The term does not include work papers underlying an audit.”
65 Pa. Stat. Ann. § 67.102.
Subsections (2) and (3) of this definition are new. Subsection (2) makes clear that records showing payments of money to an agency officer or employee are public records. Subsection (3) requires access to financial audit reports though not any of the underlying work papers.
Subsection (1), however, parallels part of the old act’s definition of records subject to the law. As a result, prior case law interpreting that language will likely remain good law. The following addresses Pennsylvania decisions interpreting the “account, voucher or contract” category of records:
The “account, voucher and contract” category deals generally with fiscal aspects of governance, providing for public review of accounts, vouchers or contracts, dealing with receipts and disbursements of funds by an agency. City of Harrisburg v. Prince, 186 A.3d 544 (Pa. Commw. Ct. 2018); The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005), aff’d 935 A.2d 530 (Pa. 2007). An account is “a record of business dealings between parties,” Carbondale Twp. v. Murray, 440 A.2d 1273, 1274 (Pa. Commw. Ct. 1982); see also Sipe v. Snyder, 640 A.2d 1374, 1382 (Pa. Commw. Ct. 1994) (an “‘account’ include[s] any ‘record of business dealings between the parties’ as well as the documentary record of a business transaction.’”). In a narrower, more technical definition, one court ruled that an account is a “record of debit and credit entries to cover transactions during a fiscal period of time” rather than a statement of facts or events. Butera v. Commonwealth Office of the Budget, 370 A.2d 1248, 1249 (Pa. Commw. Ct. 1977) (departmental budget reports provided to Pennsylvania Budget Secretary not public record), overruled by LaValle v. Office of Gen. Counsel, 769 A.2d 449 (Pa. Commw. Ct. 2000). A voucher is a documentary record of a business transaction. Carbondale, 440 A.2d at 1274 n.2. Thus, a municipality’s canceled checks have been held to be both “accounts” and “vouchers” under the law. Id. See also Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004) (deeds and mortgages filed with County Recorder of Deeds are not accounts, vouchers or contracts; therefore, they are not public records under the law).
Contracts are also public records under the Law’s definition. See, e.g., Lukes v. Dep’t of Pub. Welfare, 976 A.2d 609 (Pa. Commw. Ct. 2009) (holding that provider agreements between a Medicaid managed care program and the Department of Public Welfare constitute “public records” subject to disclosure). While “a proposal itself is not a public record under the Law because it does not lead to the expenditure of public funds,” once a proposal is “formalized into a contract, [it] as well as competing proposals [are] subject to disclosure.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 463-64 (Pa. Commw. Ct. 1997). The fact that the contract may not necessarily involve the receipt or disbursement of public funds is “irrelevant:” “[S]o long as the contract dealt with the possible appropriation of public funds, the contract was a public record subject to inspection.” Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) citing The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993). However, contracts that are required to be filed with an agency, such as deeds and mortgages, to which the agency is not a party (but merely a recorder memorializing a third-party transaction), are not public records. Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. Ct. 2004).
Under the old act, an agreement settling litigation between an agency and a third party is a public record notwithstanding a confidentiality agreement contained therein. Tribune-Review Publ’g Co. v. Westmoreland Cty. Housing Auth., 833 A.2d 112 (Pa. 2003) (a confidentiality clause in a settlement agreement involving an agency is void as against public policy); Cogen, Sklar and Levick v. Pennsylvania, 814 A.2d 825, 31 Media L. Rep. 1478 (Pa. Commw. Ct. 2003); The Morning Call, Inc. v. Housing Auth., 769 A. 2d 1246 (Pa. Commw. Ct. 2001); The Morning Call, Inc. v. Lower Saucon Twp., 627 A.2d 297 (Pa. Commw. Ct. 1993); Korczakowski v. Hwan, 68 Pa. D. & C. 4th 129 (Lackawanna Cty. C.C.P. 2005) (a settlement agreement which utilized public monies from cigarette taxes from the MCARE fund cannot be placed under seal, in part, because it is a public record).
The Commonwealth Court’s holding requiring the disclosure of written arbitration suggests the continuing validity of the above case law relating to settlement agreements. See Lutz v. City of Phila., 6 A.3d 669 (Pa. Commw. Ct. 2010). The police officer arbitrations at issue in Lutz essentially settled grievances made by members of the police union and the City of Philadelphia. The Commonwealth Court rejected the argument that resolutions of such private disputes are not a “public record” and thus denied a request to enjoin the City of Philadelphia from disclosing arbitration opinions. Id. at 676.
“The Act does not permit an agency; to avoid its obligation to disclose documents by contracting indirectly through a third party.” Associated Builders & Contractors, Inc. v. Pa. Dep’t of Gen. Servs., 747 A.2d 962, 966 (Pa. Commw. Ct. 2000) (requiring DGS to turn over contract between DGS’s construction manager and insurance broker).
Pennsylvania courts have ruled that this category “reaches some range of records beyond those which on their face constitute actual accounts, vouchers or contracts.” N. Hills News Record v. Town of McCandless, 722 A.2d 1037, 1039 (Pa. 1999). For example, in Sipe v. Snyder, 640 A.2d 1374 (Pa. Commw. Ct. 1994), appeal denied, 668 A.2d 1138 (Pa. 1995), the Commonwealth Court held that the Department of Public Welfare’s nursing home “Settlement and Appeal Activity Reports” were “accounts” under the Act because they deal with the receipt and disbursement of agency funds. Sipe, 640 A.2d at 1381-82. In Sapp Roofing Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union 12, 713 A.2d 627 (Pa. 1998), the court held that a private roofing contractor’s payroll records, which had been submitted to the government in connection with the performance of a public project, were public records under the Act because “they are records evidencing a disbursement by the school district.”
Nonetheless, “to constitute a public record, the material at issue must bear a sufficient connection to fiscally related accounts, vouchers or contracts.” North Hills, 722 A.2d at 1039; LaValle v. Office of Gen. Counsel, 769 A.2d 449, 453 (Pa. 2001). Since the North Hills case, the Commonwealth Court has ruled that insurance policies purchased by DGS were public records because they were paid for by public funds. Associated Builders & Contractors, 747 A.2d 962. The current salaries and salary histories of employees of state-related institutions (which is not obtainable from the state institution) is obtainable from those employees who participate in the public employees’ retirement fund, because the employees’ salary information is closely related to “accounts” and “contracts” and is therefore subject to the Law. The Pa. State Univ. v. State Emps.’ Ret. Bd., 880 A.2d 757 (Pa. Commw. Ct. 2005).
Under the new Law, the legislature included substantially similar “accounts, vouchers or contracts” language in its definition of “financial records” under 65 Pa. Stat. Ann. § 67.102. See, e.g., Dep’t of Conservation and Natural Res. v. Office of Open Records, 1 A.3d 929, 940-41 (Pa. Commw. Ct. 2010) (citing North Hills, 722 A.2d at 1038-39; Sapp Roofing, 713 A.2d at 628). Thus, prior case law construing the “accounts, vouchers or contracts” language in the old Act has been cited as binding precedent under the new Law. Id. So, just as a roofing contractor’s payroll records were public records in Sapp, private contractors’ payroll records are accessible “financial records” under the new Law. Id. at 940-41.
Chemical disbursement sheets, which record the use of chemicals at a state prison, are not public records because they are unrelated to the fiscal governance of the Department of Corrections and are therefore not “accounts.” Heffran v. Dep’t. of Corr., 878 A.2d 985, 991 (Pa. Commw. Ct. 2005).
Not addressed in the case law is whether a contract that deals with an agency’s “acquisition, use or disposal of services or of supplies, materials, equipment or other property” is a public record even where the agency pays or receives no funds. A strict reading of the Law suggests that such contracts are public records, but agencies have argued to the contrary.
Legislative Records: This includes:
“Any of the following relating to a legislative agency or a standing committee, subcommittee or conference committee of a legislative agency: (1) A financial record. (2) A bill or resolution that has been introduced and amendments offered thereto in committee or in legislative session, including resolutions to adopt or amend the rules of a chamber. (3) Fiscal notes. (4) A cosponsorship memorandum. (5) The journal of a chamber. (6) The minutes of, record of attendance of members at a public hearing or a public committee meeting and all recorded votes taken in a public committee meeting. (7) The transcript of a public hearing when available. (8) Executive nomination calendars. (9) The rules of a chamber. (10) A record of all recorded votes taken in a legislative session. (11) Any administrative staff manuals or written policies. (12) An audit report prepared pursuant to the act of June 30, 1970 (P.L.442, No.151) entitled, ‘An act implementing the provisions of Article VIII, section 10 of the Constitution of Pennsylvania, by designating the Commonwealth officers who shall be charged with the function of auditing the financial transactions after the occurrence thereof of the Legislative and Judicial branches of the government of the Commonwealth, establishing a Legislative Audit Advisory Commission, and imposing certain powers and duties on such commission.’ (13) Final or annual reports required by law to be submitted to the General Assembly. (14) Legislative Budget and Finance Committee reports. (15) Daily legislative session calendars and marked calendars. (16) A record communicating to an agency the official appointment of a legislative appointee. (17) A record communicating to the appointing authority the resignation of a legislative appointee. (18) Proposed regulations, final-form regulations and final-omitted regulations submitted to a legislative agency. (19) The results of public opinion surveys, polls, focus groups, marketing research or similar efforts designed to measure public opinion funded by a legislative agency.”
65 Pa. Stat. Ann. § 67.102.
Reports filed by State-related Institutions: The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library, a report containing certain information. 65 Pa. Stat. Ann. § 67.1502. The report “shall include” the following information: (1) “all information required by a Form 990 or equivalent form; regardless of whether the State-related institution is required to file the form;” (2) “the salaries of all officers and directors of the State-related institution;” (3) “the highest 25 salaries paid to employees of the institution that are not included under paragraph 2.” 65 Pa. Stat. Ann. § 67.1503(1)-(3). The report “shall not include information relating to individual donors.” Section 1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Stat. Ann. § 67.1504.
State Contract Information: The Law requires that when any commonwealth, legislative or judicial agency (this excludes local agencies) enter into any “contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more, a copy of the contract shall be filed with the Treasury Department within ten days after the contract is fully executed on behalf of the Commonwealth agency, legislative agency or judicial agency or otherwise becomes an obligation of the Commonwealth agency, legislative agency or judicial agency.” 65 Pa. Stat. Ann. § 67. 65 Pa. Stat. Ann. § 67.1701(a).
This obligation does not apply to “contracts for services protected by a privilege,” referring, inter alia, to the attorney-client privilege, attorney work product doctrine, the doctor-patient privilege and the speech and debate privilege. Section 1701(a); 102 (definition of “privilege”). It also does not apply to “a purchase order evidencing fulfillment of an existing contract but shall apply to a purchase order evidencing new [contractual] obligations.” Section 1701(a). And it does not apply to contracts “submitted to the Treasury Department, the Office of Auditor General or other agency for purposes of audits and warrants for disbursements” under the Fiscal Code.
When an open records officer discloses records protected by the attorney-client privilege without prior consent from the municipality’s solicitor, the agency has not waived its attorney-client privilege. See Bd. of Supervisors v. McGogney, 13 A.3d 569, 573 (Pa. Commw. Ct. 2011). The majority in McGogney analyzed inadvertent disclosures through the five factor test articulated in Carbis Walker, LLP v. Hill, Barth & King, LLC, 930 A.2d 573 (Pa. Super. 2007). The court found that open records officers have “ministerial and administrative” duties. McGogney, 13 A.3d at 573. Therefore, they have no power either as client or attorney to waive the attorney-client privilege. Id.
However, the dissent cited 65 Pa. Stat. Ann. § 67.902’s notice provisions for delay in responding to a request. Id. at 574–75. 65 Pa. Stat. Ann. § 67.902 permits an agency to extend the time for response under 65 Pa. Stat. Ann. § 67.901 if a “legal review is necessary to determine whether the record is a record subject to access under this act.” 65 Pa. Stat. Ann. § 67.902(a)(4). Thus, the dissent reasoned that the open records officer had the power to and did waive the attorney-client privilege by disclosing documents without waiting for a legal review. See McGogney, 13 A.3d at 573.
The contract must be “in a form and structure mutually agreed upon” by the agency and State Treasurer. The Treasury Department may require the agency to “provide a summary with each contract” that “shall include” the date of execution, amount of the contract, beginning and end date of the contract, name of agency and all parties and subject matter. Every contract filed shall remain on file with the Treasury Department “for a period of not less than four years after the end date of the contract.” The agency is “responsible for verifying the accuracy and completeness of the information” submitted to the State Treasurer. The contract “shall be redacted” in accordance with the Law by the agency filing it. 65 Pa. Stat. Ann. §§ 67.1701(a)(1), (2)(a)–(c).
The Treasury Department shall make each filed contract available for public inspection in one of two ways: (1) “by posting a copy of the contract on the Treasury Department’s publicly accessible Internet website,” or (2) “by posting a contract summary on the department’s publicly accessible Internet website.” 65 Pa. Stat. Ann. § 67.1702(a). The posted information must allow the public to “search contracts or contract summaries by the categories of information that must be contained in summaries.” 65 Pa. Stat. Ann. § 67.1702(b).
A requester may obtain a “paper copy” of the contract from the agency that executed the contract. 65 Pa. Stat. Ann. § 67.1702(d).
The Law’s definition of “record” includes records in any form, including records containing “information stored or maintained electronically and a data-processed or image-processed document.” 65 Pa. Stat. Ann. § 67.102. Moreover, it states: “A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists.” 65 Pa. Stat. Ann. § 67.701(a). But the Law cautions that “[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.” 65 Pa. Stat. Ann. § 67.701(b).
“Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication.” 65 Pa. Con. Stat § 67.701. This is consistent with prior case law. See City of Phila. v. Ruczynski, 24 Pa. D. & C.2d 478 (Phila. Cty. C.P. 1961) (interpreting old act).
Round-the-clock access is not required: “Public records, legislative records or financial records shall be available for access during the regular business hours of an agency.” 65 Pa. Stat. Ann. § 67.701(a).
Although the Law is silent, it is unlikely that an agency has any obligation to send a copy to a requester. Applying the old act, Pennsylvania courts held that an agency is not required to do so. See Owens v. Horn, 684 A.2d 208, 210 (Pa. Commw. Ct. 1996) (Department of Corrections not required to make copy of record for inmate or to transport record to inmate); see also Carter v. Pa. Dep’t. of Corr., 962 A.2d 21, 23 (Pa. Cmmw. 2008) (finding the Department had “done all that it is required to do” under the law in making records available for inspection and copying). Likewise, under the old act, the requester must make his or her own copies and could not compel the agency to do so. See Twp. of Shenango v. W. Middlesex Area Sch. Dist., 33 Pa. D. & C.3d 515 (Mercer Cty. C.P. 1984).
Mobile phone number logs – where the phone is paid with tax dollars – are accessible. See PG Pub. Co. v. Cty. of Washington, 638 A.2d 422, 432 (Pa. Cmmw. 1994), see also Grine v. Cty. of Centre, 138 A.3d 88, 96 (Pa. Cmmw. 2016)
Yes. The Law’s definition of “record” includes records in any form, including records containing “information stored or maintained electronically and a data-processed or image-processed document.” 65 Pa. Stat. Ann. § 67.102. Moreover, it states: “A public record being provided to a requester shall be provided in the medium requested if the record exists in that medium; otherwise, it shall be provided in the medium in which it exists.” 65 Pa. Stat. Ann. § 67.701(a).
The agency has the option of making its records available through “any publicly accessible electronic means” and may respond to a requester by stating that “the record is available through publicly accessible electronic means or that the agency will provide access to inspect the record electronically.” If the requester is “unwilling or unable to access the record electronically,” the requester may submit, within 30 days of the agency’s notification, a written request “to the agency to have the record converted to paper,” and the agency “shall provide access to the record in printed form within five days or the receipt of the written request for conversion to paper.” 65 Pa. Stat. Ann. § 67.704.
The Law cautions that “[n]othing in this act shall be construed to require access to any computer either of an agency or individual employee of an agency.” 65 Pa. Stat. Ann. § 67.701(b).
No. In responding to a request under the Law, an agency is not required to create a document that does not exist. See 65 Pa. Stat. Ann. § 67.705 (“[A]n agency shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.”).
Nonetheless, some agencies have allowed such requests.
Many agencies make some of their records publicly available online in their own discretion and by statute. However, the Law does not require online dissemination of public records.
Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.”
“Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record . . . and to respond as promptly as possible under the circumstances existing at the time of the request.” 65 Pa. Stat. Ann. § 67.901; In re Silberstein, 11 A.3d 629, 633 (Pa. Commw. Ct. 2011) (the open records officer is required to direct relevant requests to appropriate public officials and determine whether that official is in possession, custody or control of a “public record”).
So long as an e-mail satisfies the Law’s requirements, the Law requires access. See, e.g., In re Silberstein, 11 A.3d 629. Silberstein suggests that a public official who “possesses, controls or has custody” of a public record, no matter where it exists, must disclose that information to a requester. Id. However, emails located on an agency-owned computer are not presumptively records of the agency simply by virtue of their location.” Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259, 1264 (Pa. Cmmw. 2012). Rather, it is those emails that document the agency's transactions or activities that are “records.” Id. Therefore, personal emails sent or received using a school district e-mail address or by virtue of their location on a district-owned computer – even though the district had a policy limiting use of computers to official business and stating users had no expectation of privacy – may be exempt from disclosure. See Baxter, 35 A.3d 1259; see also In re Silberstein, 11 A.3d 629 (a public official’s electronic communications do not fall within the definition of a “record” under Pennsylvania’s Right to Know Law when the official has no authority to act on behalf of a governmental agency without its authorization).
An open records officer must make a good faith determination as to the existence of public records on private hardware. See, e.g., In re Silberstein, 11 A.3d 629, 633 (Pa. Cmmw. 2011).
Text messages and instant messages are presumptively accessible unless the governmental agency proves some exemption from disclosure applies. Under 65 Pa. Stat. Ann. § 67.102, “record” is defined as “information stored or maintained electronically.” 65 Pa. Stat. Ann. § 67.102.
Given that emails have been held to be accessible to the public no matter where they exist, instant messages and text messages must also likely be made publicly available upon proper request. See In re Silberstein, 11 A.3d at 633; see also Hassler v. Tulpehocken Area Sch. Dist., OOR Dkt. No. AP 2019-0455 (July 18, 2019) (requiring the disclosure of text messages exchanged during a school board meeting between the superintendent and a board member).
Private matter messages on private hardware likely need not be disclosed. See In re Silberstein; see also Easton Area Sch. Dist. v. Baxter, 35 A.3d 1259 (Pa. Cmmw. 2012)
Social media postings and messages are presumptively accessible.
Under 65 Pa. Stat. Ann. § 67.708(b)(4), software is presumptively accessible unless it “would be reasonably likely to jeopardize [the agency’s] computer security.” Software and metadata are public so long as they “would [not] be reasonably likely to jeopardize [the agency’s] computer security.”
The Law spells out what fees agencies may and may not charge. 65 Pa. Stat. Ann. § 67.1307. Other statutory law may supersede the fees required by the Right-to-Know Law. See, e.g., 42 P.S. § 21051 (permits Recorder of Deeds to charge a copy fee of 50 cents per uncertified page and $1.50 per certified page); 75 Pa.C.S. §3751 (b)(2) (permits police departments to charge up to $15 per report for providing a copy of a vehicle accident report).
In general, the Law permits fees to cover the costs of duplication and postage costs. No other fees may be charged “unless the agency necessarily incurs costs for complying with the request.” In such case, “such fees must be reasonable.” 65 Pa. Stat. Ann. § 67.1307(g). This requirement prevents an agency from charging for overhead costs (staff payroll, utilities, etc.), which are not “necessarily” incurred as a result of a request. 65 Pa. Stat. Ann. § 67.1307(g).
A fee to review a document is not permissible. No fee may be charged for “an agency’s review of a record to determine whether the record is a public record, legislative record or financial record subject to access in accordance with this act.” 65 Pa. Stat. Ann. § 67.1307(g).
The Law requires that the fees “shall be established” by the Office of Open Records for Commonwealth and local agencies, by each judicial agency and by each legislative agency. 65 Pa. Stat. Ann. § 67.1307(b)(1).
Fees for duplication – whether by “photocopying, printing from electronic media or microfilm, copying onto electronic media, transmission by facsimile or other electronic means and other means of duplication” – “must be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.” 65 Pa. Stat. Ann. § 67.1307(b)(2). “Fees for local agencies may reflect regional price differences.” 65 Pa. Stat. Ann. § 67.1307(b)(3).
A retrieval and copying fee of 25 cents per page was held reasonable. Weiss v. Williamsport Area Sch. Dist., 872 A.2d 269 (Pa. Commw. Ct. 2005) (interpreting the old act). In so holding, the court permitted the school district to rely on comparable charges levied by other local colleges and banks and rejected the requester’s evidence of lower fees charged by such local businesses as Staples. Id.
If the public record is only maintained electronically or in non-paper form, the agency may charge only the lesser of the fee for duplication on paper or the fee for duplication in the original medium, unless the request is specifically for duplication in the more expensive medium. 65 Pa. Stat. Ann. § 67.1307(d); see, e.g., State Emps.’ Ret. Sys. v. Office of Open Records, 10 A.3d 358 (Pa. Commw. Ct. 2010) (limiting fees to the cost of duplication at 25 cents per page rather than the more expensive labor costs of compiling data electronically because the state agency had no duty to produce non-paper copies).
Postage: “Fees for postage may not exceed the actual cost of mailing.” 65 Pa. Stat. Ann. § 67.1307(a).
Agencies may offer “enhanced electronic access” to public records using a different rate structure – e.g., flat rate, subscription fee, per transaction fee, etc. – so long as the enhanced electronic access is “in addition to making the records accessible for inspection and duplication” as required by the Law. “The user fees for enhanced electronic access must be reasonable, must be approved by the Office of Open Records, and may not be established with the intent or effect of excluding persons from access to records or duplicates thereof or of creating profit for the agency.” 65 Pa. Stat. Ann. § 67.1307(e).
Big Data: The Law has special rules for “complex and extensive data sets, including geographic information systems or integrated property assessment lists.” In such situations, “[f]ees for copying may be based on the reasonable market value of the same or closely related data sets.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(i). Such fees, however, “shall not apply” to requests by (1) newspapers, magazines, broadcast stations, weekly publications and press associations “for the purpose of obtaining information for publication or broadcast” or (2) “nonprofit organizations for the conduct of educational research.” 65 Pa. Stat. Ann. § 67.1307(b)(4)(ii).
Certified copies: The Law allows agencies to “impose reasonable fees for the official certification of copies if the certification is sought by the requester and for the purpose of legally verifying the public record.” 65 Pa. Stat. Ann. § 67.1307(c). Once an agency grants a request for access, the Act obligates an agency to provide a certified copy if the requester pays the applicable fees. 65 Pa. Stat. Ann. § 67.904.
Transcripts: The Law permits different fees for transcripts depending on whether the adjudication is final. Prior to an adjudication becoming “final, binding and nonappealable,” transcripts of an administrative proceeding are available from the agency stenographer or court reporter “in accordance with agency procedure or an applicable contract.” 65 Pa. Stat. Ann. § 67.707(c)(1). But where the adjudication is final, the “duplication rate” may not exceed that established by 65 Pa. Stat. Ann. § 67.1307(b), i.e., they must be “reasonable and based on prevailing fees for comparable duplication services provided by local business entities.” 65 Pa. Stat. Ann. § 67.707(c)(2). In other words, until an adjudication is final, fees may be a much higher charge consistent with per page rates set by court reporters and stenographers.
An agency may – but is not legally required to – waive fees for duplication where, for example, the “requester duplicates the record” or “the agency deems it is in the public interest to do so.” 65 Pa. Stat. Ann. § 67.1307(f).
Before granting a request for access, an agency may require a requester to “prepay an estimate of the fees authorized under this section if the fees required to fulfill the request are expected to exceed $100.” 65 Pa. Stat. Ann. § 67.1307(h).
Under the old act, some agencies tried to charge fees that sought to make profit on Right to Know Act requests, even though prior case law and the 2002 amendments have generally prohibited such efforts.
Pursuant to 65 Pa. Stat. Ann. § 67.1307(e), agencies may impose a flat rate, a subscription fee for a period of time, a per-transaction fee, a fee based on the cumulative time of system access, or any other reasonable method for “enhanced electronic access.” The user fees for enhanced electronic access must be reasonable, pre-approved by the Office of Open Records, and absent an intent or effect of excluding persons or creating profit for the agency. 65 Pa. Stat. Ann. § 67.1307(e).
The Law mandates the creation of an Office of Open Records in the Department of Community and Economic Development. Section 1310(a). The Office is led by an executive director who is appointed by the governor for a term of six years (with a maximum of two terms) and who may appoint attorneys to act as appeals officers as well as other staff as appropriate. 65 Pa. Stat. Ann. § 67.1310(b).
The Office of Open Records has the following responsibilities:
• Provide information relating to the implementation and enforcement of the act.
• Issue advisory opinions to agencies and requesters.
• Provide annual training to agencies, public officials and public employees.
• Provide annual, regional training courses to local agencies, public officials and public employees.
• Assign appeals officers to review appeals of decisions by commonwealth and local agencies, and issue orders and opinions. The Office must retain attorneys to serve as appeals officers and review appeals and, if necessary, hold hearings on a regional basis.
• Establish an informal mediation program to resolve disputes under the act.
• Establish an Internet website with information relating to the act, including information on fees, advisory opinions and the name and address of all open records officers in the Commonwealth.
• Conduct a biannual review of fees charged under the act.
• Annually report on “its activities and findings” to the Governor and General Assembly. This report shall be “posted and maintained” on the Office’s website.
65 Pa. Stat. Ann. § 67.1310(a)(1)-(9).
See Section III(D)(8)-(10) which discusses judicial remedies and fines.
“A written request should identify or describe the records sought with sufficient specificity to enable the agency to ascertain which records are being requested.” 65 Pa. Con. Stat. § 67.703. The requester must identify a “discrete” group of documents either by type or recipient. See Office of the D.A. v. Bagwell, 155 A.3d 1119, 1143 (Pa. Cmmw. 2017), reconsideration denied (Apr. 12, 2017), appeal denied sub nom. Office of D.A. v. Bagwell, 174 A.3d 560 (Pa. 2017) (finding that a request for “all e-mails, memos and letters” exchanged between a district attorney and city office during a 15-month period was sufficiently specific).
“Any Commonwealth agency, legislative agency or judicial agency [that] enter[s] into any contract involving any property, real, personal or mixed of any kind or description or any contract for personal services where the consideration involved in the contract is $5,000 or more” shall file said contract with the Treasury Department. 65 Pa. Con. Stat. § 67.1701.
The Law states that state-related institutions (Penn State, University of Pittsburgh, Temple, and Lincoln) must, no later than May 30 of each year, file with the Governor’s Office, the General Assembly, the Auditor General and the State Library a report containing certain information. 65 Pa. Con. Stat § 1502. The report “shall include” the following information: (1) “all information required by Form 990 or an equivalent form . . . regardless of whether the State-related institution is required to file the form . . .;” (2) “[t]he salaries of all officers and directors of the State-related institution;” (3) “[t]he highest 25 salaries paid to employees of the institution that are not included under paragraph (2).” 65 Pa. Con. Stat §1503(1)-(3). The report “shall not include information relating to individual donors.” 65 Pa. Con. Stat §1503(4). The Law requires that state-related institutions “shall maintain, for at least seven years, a copy of the report in the institution’s library and shall provide free access to the report on the institution’s Internet website.” 65 Pa. Con. Stat § 1504.
Though, “certain records of a coroner, such as autopsy reports, are exempt under Section 708(b)(20) of the RTKL, these records are available pursuant to the Coroner's Act, 16 P.S. §§ 1231-1253.” See In re Miller v. Lancaster Cty., 2018 WL 1542110 (Pa. Off. Open Rec. 2018) (citing 65 P.S. § 67.3101.1: “If the provisions of this act regarding access to records conflict with any other . . . state law, the provisions of this act shall not apply.”). Section 1251 of the Coroner's Act states that “[e]very coroner, within thirty (30) days after the end of each year, shall deposit all of his official records and papers for the preceding year in the office of the prothonotary for the inspection of all persons interested therein.” 16 P.S. § 1251. The Pennsylvania Supreme Court has found that records pertaining “to a duty of a coroner in his or her official capacity,” including autopsy reports, are ““official records and papers” of a coroner that are required to be deposited with the county prothonotary. See Penn Jersey Advance, Inc. v. Grim, 962 A.2d 632, 636 (Pa. 2009) (“It is clear . . . that conducting autopsies is one of the official duties of a coroner. It follows logically that a coroner's resulting autopsy reports constitute ‘official records and papers' within the meaning of Section 1251.”).
The OOR does not have jurisdiction over record retention. The Pennsylvania Historical & Museum Commission (“PHMC”) provides guidelines for record retention. Retention is based on media type and agency. The PHMC’s retention schedule can be found here: https://www.phmc.pa.gov/Archives/Records-Management/Documents/20190520_GeneralRRDS.pdf
Section 708 of the Law, which is not patterned on the federal Freedom of Information Act, contains numerous exceptions. The individual exceptions will be discussed in the next subsection. For purposes of this subsection, concerning the characteristics of the exceptions in the Law:
• All of the exceptions apply to public and judicial records.
• Only a few of the exceptions apply to financial records. 65 Pa. Stat. Ann. § 67.708(c), moreover, expressly provides that “an agency may redact that portion of a financial record protected under [Section 708](b)(1)-(6), (16–17).”
• 65 Pa. Stat. Ann. § 67.708(d) provides that the exceptions do not apply to “aggregated data maintained or received by an agency, except for data protected under” 65 Pa. Stat. Ann. § 67.708(b)(1)-(5).
• 65 Pa. Stat. Ann. § 67.708(c) prohibits agencies from disclosing “the identity of an individual performing an undercover or covert law enforcement activity.”
In terms of burdens of proof, the agency receiving a records request bears the burden of proving by a preponderance of the evidence that a requested record is exempt from disclosure. 65 Pa. Stat. Ann. § 67.708(a)(1)-(3); see also Mission Pa., LLC v. McKelvey, --- A.3d ----, 2019 WL 2345090, at *6 (Pa. Commw. Ct. 2019) (explaining that “decisional law allows third parties to raise and defend exemptions to protect their information,” but agencies are not relieved from considering the validity or consistent application of the asserted exceptions) (citations omitted). Furthermore, the agency must separately and independently assess each exemption believed to apply to a requested record. 65 Pa. Stat. Ann. § 67.708(e). Courts will narrowly construe the exceptions when they are asserted to preclude disclosure of a requested record. Office of the Governor v. Davis, 122 A.3d 1185, 1191 (Pa. Commw. Ct. 2015).
As it relates to the Section 708 exceptions, it is also important to recognize that agencies are not required to withhold records that fall within one of the listed exceptions. 65 Pa. Stat. Ann. § 67.506(c) provides agencies with “discretion” to make an “otherwise exempt” record accessible for inspection and copying if: (1) “disclosure is not prohibited” by a “[f]ederal or [s]tate law or regulation,” or a “[j]udicial order or decree;” (2) the “record is not protected by a privilege;” and (3) “[t]he agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.” See also Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711 (Pa. Commw. Ct. 1999) (explaining in the context of the old Act that “there are three types of records kept by government agencies: 1) records that must be made public because they are subject to the Act; 2) records that may be made public because they fall within the discretion of the public official to make them public because they either fall within an exception under the Act or are otherwise not prohibited from being released; and 3) those records that cannot be released because there is an express statutory prohibition against their release . . .”); Bangor Area Educ. Ass’n v. Angle, 720 A.2d 198, 202 (Pa. Commw. Ct. 1998), aff’d, 750 A.2d 282 (Pa. 1998) (concluding that the old Act “prohibited” the agency from providing access to teacher personnel files protected by the constitutional right of privacy). Thus, it is possible that a requesting party may still be in a position to obtain an otherwise exempted record. But the ultimate disclosure decision for exempted records is within an agency’s discretion.
65 Pa. Stat. Ann. § 67.708, which is divided into 30 subparts, consists of general and specific records exceptions. The exceptions follow below.
(1) “A record the disclosure of which: (i) would result in the loss of Federal or State funds by an agency or the Commonwealth; or (ii) would be reasonably likely to result in a substantial and demonstrable risk of physical harm to or the personal security of an individual.”
The old Act included nearly identical records exceptions.
First, the old act provided an exemption for records that “if disclosed would result in loss by the Commonwealth or any subdivision or authority of federal [but not state] funds, except records of criminal convictions.” (emphasis added). The old exemption was rarely invoked. Moreover, it was understood to apply only when federal law mandated the loss of federal funds for records disclosures. See Envirotest Partners v. Commonwealth Dep’t of Transp., 664 A.2d 208 (Pa. Commw. Ct. 1995) (explaining that “the possibility that an agency would lose [f]ederal funds is insufficient to trigger an exemption from inspection under the Act”) (emphasis added) (citing Ryan v. Pa. Higher Educ. Assistance Agency, 448 A.2d 669 (Pa. Commw. Ct. 1982) (determining that contracts not exempt from disclosure when no federal law or regulation mandated that federal funds be cut off if public access to the contracts was allowed). In a more recent decision, the Commonwealth Court recognized that the same standard applies when an agency invokes this exemption. Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1016 (Pa. Commw. Ct. 2018).
Second, the old Act also contained an exemption for records “which if disclosed would operate to prejudice or impair a person’s reputation or personal security.” Originally, in decisions applying that exception, Pennsylvania courts interpreted “personal security” solely as “freedom from harm, danger, fear or anxiety.” See Times Publ’g Co., Inc. v. Michel, 633 A.2d 1233 (Pa. Commw. Ct. 1993). The cases required disclosure of information to be “‘intrinsically harmful’ to fall within the personal security exception to the Act.” Id. (quoting Moak v. Phila. Newspapers, Inc., 336 A.2d 920 (Pa. Commw. Ct. 1975)).
In Times Publishing, the Commonwealth Court expanded upon the exception, applying it to “personal security” information (i.e., addresses, telephone numbers, and social security numbers of firearm applicants). The court “decided that deference to personal privacy rights must be accommodated pursuant to the ‘personal security’ exception in the [former Act].” Pa. State Edu. Ass’n v. Pa. Dep’t of Cmty. and Econ. Dev., 148 A.3d 142, 153 (Pa. 2016) (PSEA) (citing Times Publ’g, 633 A.2d at 1239). The court also “found that when evaluating claims involving constitutional privacy interests related to . . . requests for personal information [under the old Act], courts must ‘apply a balancing test, weighing privacy interests and the extent to which they may be invaded, against the public benefit which would result from disclosure.’” Id. (quoting Times Publ’g, 633 A.2d at 1239).
Following Times Publishing, the Supreme Court of Pennsylvania adopted the Commonwealth Court’s analysis in a trilogy of cases. See Sapp Roofing Co. v. Sheet Metal Workers' Int'l Ass'n, Local Union No. 12, 713 A.2d 627 (Pa. 1998) (plurality); Pa. State Univ. v. State Emps.’ Ret. Bd., 935 A.2d 530 (Pa. 2007); Tribune–Review Publ’g Co. v. Bodack, 961 A.2d 110 (Pa. 2008). According to the Supreme Court of Pennsylvania, “the determination of whether personal information [could] be disclosed [under the old law] require[d] a balancing to assess whether the privacy interests outweigh[ed] the public’s interest in the dissemination of the information.” PSEA, 148 A.3d at 153-54.
In the current Law, the Legislature clearly retained the personal-security exemption. And in 2016, the Pennsylvania Supreme Court reversed a Commonwealth Court decision that ruled there is no constitutional right to privacy in one’s home address, in connection with requests under the current Law. PSEA, 148 A.3d at 158. According to the Supreme Court, the “right to informational privacy is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure.” Id. Accordingly, the Supreme Court ruled that the prior analysis under the old Act applies to personal-security information that agencies attempt to shield from disclosure under the personal-security exemption in the current Law. Applying the balancing test, the court concluded that the public school employees’ strong privacy interest in their home addresses outweighed any public interest in disclosure of that information. Id.
In terms of the “physical harm” aspect of this exemption, agencies cannot satisfy the “reasonably likely” burden by relying on speculation or conjecture. See, e.g., Cal. Borough v. Rothey, 185 A.3d 456, 468 (Pa. Commw. Ct. 2018) (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, 65 Pa. Stat. Ann. § 67.708(b)(2), the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).
An agency must present sufficient evidence supporting the proposition that disclosure would be more likely than not to cause physical harm to an individual. Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435 (Pa. Commw. Ct. 2011); but see id. at 443 (J. McCullough, concurring) (stating that the test under Section 708 is clearly a reasonable likelihood of physical harm).
(2) “A record maintained by an agency in connection with the military, homeland security, national defense, law enforcement or other public safety activity that if disclosed would be reasonably likely to jeopardize or threaten public safety or preparedness or public protection activity, or a record that is designated classified by an appropriate Federal or State military authority.”
As with all of the “reasonably likely” thresholds contained within certain exceptions, agencies asserting this exception cannot satisfy their burden by relying on speculation or conjecture. See, e.g., Rothey, 185 A.3d at 468 (holding that where the agency’s evidence solely consisted of speculation or conjecture about security-related exceptions under the RTKL, the trial court did not err in ruling that public-safety exception did not apply to video recording of a holding cell at the Borough Police Department).
65 Pa. Stat. Ann. § 67.102 also supplies definitions pertinent to this exemption:
“Homeland security” is defined by the Law to mean: “Governmental actions designed to prevent, detect, respond to and recover from acts of terrorism, major disasters and other emergencies, whether natural or manmade.” The term includes activities relating to the following: (1) emergency preparedness and response, including preparedness and response activities by volunteer medical, police, emergency management, hazardous materials and fire personnel; (2) intelligence activities; (3) critical infrastructure protection; (4) border security; (5) ground, aviation and maritime transportation security; (6) biodefense; (7) detection of nuclear and radiological materials; and (8) research on next-generation securities technologies. 65 Pa. Stat. Ann. § 67.102.
“Terrorist act” is defined as a “violent or life-threatening act that violates the criminal laws of the United States or any state and appears to be intended to: (1) intimidate or coerce a civilian population; (2) influence the policy of a government; or (3) affect the conduct of a government by mass destruction, assassination or kidnapping.” Id.
In addition, “Supervision Strategies” employed by Board of Probation and Parole (the “Board”) employees to monitor sex offenders also fall within this exemption. Woods v. Office of Open Records, 998 A.2d 665 (Pa. Commw. Ct. 2010). The Commonwealth Court reasoned that releasing “Supervision Strategies” might aid sex offenders wishing to avoid Board supervision and monitoring, and thus facilitate recidivism. Id. “The critical factor in th[e] [c]ourt’s decision was the detail which the affiant provided regarding the substance of the records and the ways in which a sex offender might use the information to evade or avoid detection.” Pa. State Police v. ACLU, 2018 WL 2272597, at *3 (Pa. Commw. May 18, 2018) (internal citations omitted).
(3) “A record, the disclosure of which creates a reasonable likelihood of endangering the safety or the physical security of a building, public utility, resource, infrastructure, facility or information storage system, which may include: (i) documents or data relating to computer hardware, source files, software and system networks that could jeopardize computer security by exposing a vulnerability in preventing, protecting against, mitigating or responding to a terrorist act; (ii) lists of infrastructure, resources and significant special events, including those defined by the Federal Government in the National Infrastructure Protections, which are deemed critical due to their nature and which result from risk analysis; threat assessments; consequence assessments; antiterrorism protective measures and plans; counterterrorism measures and plans; and security and response needs assessments; and (iii) building plans or infrastructure records that expose or create vulnerability through disclosure of the location, configuration or security of critical systems, including public utility systems, structural elements, technology, communication, electrical, fire suppression, ventilation, water, wastewater, sewage and gas systems.”
Relevant to this exemption, the Pennsylvania Emergency Management Agency (PEMA) must disclose records of goods and services purchased with Department of Homeland Security grant funds unless disclosure is “reasonably likely” to endanger public infrastructure. See Bowling v. Office of Open Records, 990 A.2d 813 (Pa. Commw. Ct. 2010). Although the court recognized “the enormity of the task before PEMA,” it held that PEMA cannot redact the names of all recipients of goods or services purchased with such funds. Id. at 826. Instead, the court held that PEMA must analyze its documents to determine the “reasonable likelihood” of a threat to the Commonwealth’s infrastructure resulting from disclosure. Id. at 825-26.
Additionally, in Mission Pennsylvania, LLC v. McKelvey, the Commonwealth Court reversed the OOR’s final determination that the objecting parties did not meet their evidentiary burden to prove that the exemption applied to “minimal redactions” made to applications under the Medical Marijuana Act. --- A.3d ----, 2019 WL 2345090 (Pa. Commw. Ct. 2019). The redactions related to physical features and security measures of permitted medical-marijuana facilities. The court held that the record supported the redactions under the exemption. To that end, the court concluded that the objecting parties satisfied the “reasonable likelihood” threshold. Moreover, the court noted that the medical marijuana industry (a “cash-based industry”) involves “inherent risk” such that “disclosure of security measures and locations of surveillance systems presents a credible threat to physical security of facilities that amounts to more than mere speculation.” Id. at *10.
(4) “A record regarding computer hardware, software and networks, including administrative or technical records, which, if disclosed, would be reasonably likely to jeopardize computer security.”
(5) “A record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or other program designed for participation by persons with disabilities, including vocation rehabilitation, workers' compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”
In Department of Corrections v. St. Hilaire, a news reporter requested from the DOC, among other items, all records “that document inmate injuries.” 128 A.3d 859, 860 (Pa. Commw. 2015). The DOC objected to the request on the basis of this exception. The OOR, however, granted the reporter’s appeal “noting that the medical incident / injury reports maintained by the DOC could be de-identified and, hence, were not subject to the protections of Section 708(b)(5) . . . or HIPAA.” Id. at 862. On petition to the Commonwealth Court, the DOC argued that the OOR erred by failing to conclude that this exception did not cover the requested inmate records. The Commonwealth Court disagreed, holding that the exception does not apply to medical incident or injury reports. Id. at 866. The court rejected the notion that medical incident / injury reports may be transformed into an exempt medical record simply because those records might possibly contain medical information. What is more, in this particular case, the evidence demonstrated that the DOC maintained incident / injury reports separate from an inmate’s medical file. Furthermore, the requestor did not request reports that contained identifiable information. Even so, the court noted that such information could be redacted from disclosed records. Cf.Uniontown Newspapers, Inc. v. Dep’t of Corr., 151 A.3d 1196, 1206 (Pa. Commw. Ct. 2016) (recognizing that although the “DOC may be required to redact information from reports . . . [a]n inmate’s medical file is exempt, and not subject to redaction”) (citation omitted).
(6) “(i) The following personal identification information: (A) A record containing all or part of a person's Social Security number; driver's license number; personal financial information; home, cellular or personal telephone numbers; personal e-mail addresses; employee number or other confidential personal identification number. (B) A spouse's name; marital status, beneficiary or dependent information. (C) The home address of a law enforcement officer or judge. (ii) Nothing in this paragraph shall preclude the release of the name, position, salary, actual compensation or other payments or expenses, employment contract, employment-related contract or agreement and length of service of a public official or an agency employee. (iii) An agency may redact the name or other identifying information relating to an individual performing an undercover or covert law enforcement activity from a record.”
Although the Law provides examples of what type of information may qualify as “personal identification information,” the Law does not define the phrase. Nevertheless, the Commonwealth Court has defined it as information “unique to a particular individual or which may be used to identify or isolate an individual from the general population.” Office of Lieutenant Governor v. Mohn, 67 A.3d 123, 133 (Pa. Commw. Ct. 2013) (holding that the government-issued “personal” e-mail address for the Lieutenant Governor fell within the personal identification information exemption); see also Office of the Governor v. Raffle, 65 A.3d 1105 (Pa. Commw. Ct. 2013) (en banc) (holding that government-issued cellular telephone numbers of agency employees are “personal identification information”).
With respect to “personal identification information,” 65 Pa. Stat. Ann. § 67.708(b)(6)(iii) gives law enforcement agencies the discretion to redact that information, including the name of undercover officers from records. See, e.g., Scolforo, 18 A.3d at 442.
Additionally, the Law defines “personal financial information” as: “An individual’s personal credit, charge or debit card information; bank account information; bank, credit or financial statements; account or PIN numbers and other information relating to an individual’s personal finances.” 65 Pa. Stat. Ann. § 67.102. Under the Law’s definition, the number of hours an employee works at a third-party entity is not “personal financial information.” Scolforo, 18 A.3d at 442.
(7) “The following records relating to an agency employee: (i) A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation. (ii) A performance rating or review. (iii) The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed. (iv) The employment application of an individual who is not hired by the agency. (v) Workplace support services program information. (vi) Written criticisms of an employee. (vii) Grievance material, including documents related to discrimination or sexual harassment. (viii) Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge. (ix) An academic transcript.”
(8) “(i) A record pertaining to strategy or negotiations relating to labor relations or collective bargaining and related arbitration proceedings. This subparagraph shall not apply to a final or executed contract or agreement between the parties in a collective bargaining procedure. (ii) In the case of the arbitration of a dispute or grievance under a collective bargaining agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of the arbitration or the opinion. This subparagraph shall not apply to the award or order of the arbitrator in a dispute or grievance procedure.”
(9) “The draft of a bill, resolution, regulation, statement of policy, management directive, ordinance or amendment thereto prepared by or for an agency.”
In Philadelphia Public School Notebook v. School District of Philadelphia, the School District appealed the Court of Common Pleas’ holding that the requested full texts of resolutions presented during a public meeting of the School Reform Commission were not “drafts.” 49 A.3d 445 (Pa. Commw. Ct. 2012). In the School District’s view, the summaries provided to the public of the resolutions were sufficient and the full texts were “drafts” that were not required to be disclosed. To the latter point, the School District contended that “the nature of the [r]esolutions as ‘drafts’ was underscored . . . by the fact that the [School District’s] staff not only could, but actually did, withdraw the [r]esolutions before the [Commission’s] voting meeting.” Id. at 451. The Commonwealth Court rejected the School District’s contentions and affirmed the Court of Common Pleas’ holding that the texts of the resolutions were no longer “drafts” “once the School District presented them publicly for discussion among commissioners in a public venue where they were subject to questions from the public at the [Commission’s] public ‘planning’ meeting.” Id. at 452. The Commonwealth Court also observed that the failure to provide the full texts of resolutions to the public, for anticipated public comment and questioning, “potentially obfuscated public awareness and understanding of what the [Commission] was actually discussing and considering.” Id. at 451-52. In other words, without the full texts of the resolutions, the very reason for holding the public meeting in the first place was potentially undermined. Id. at 452.
(10) “(i) A record that reflects: (A) The internal, pre-decisional deliberations of an agency, its members, employees or officials or pre-decisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including pre-decisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the pre-decisional deliberations. (B) The strategy to be used to develop or achieve the successful adoption of a budget, legislative proposal or regulation. (ii) Subparagraph (i)(A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to open meetings) in a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not otherwise exempt from access under this act and which is presented to a quorum for deliberation in accordance with 65 Pa.C.S. Ch. 7 shall be a public record. (iii) This paragraph shall not apply to a written or Internet application or other document that has been submitted to request Commonwealth funds. (iv) This paragraph shall not apply to the results of public opinion surveys, polls, focus groups, marketing research or similar effort designed to measure public opinion.”
This exemption, which codifies the deliberative-process privilege, flows from cases interpreting the old Act’s definition of public record. See Office of Governor v. Scolforo, 65 A.3d 1095, 1102 (Pa. Commw. Ct. 2012); see also LaValle v. Office of Gen. Counsel, 769 A.2d 449, 458 (Pa. 2001) (holding that “public record” under the old Act did not encompass records reflecting internal deliberative aspects of agency decision making).
Generally, agencies must demonstrate the records are (1) internal to the agency; (2) pre-decisional; and (3) deliberative. Indeed that is the test commonly used by the OOR. See, e.g., Kaplin v. Lower Merion Twp., 19 A.3d 1209, 1212 (Pa. Commw. Ct. 2011).
In Philadelphia Public School Notebook, the Commonwealth Court affirmed the Court of Common Pleas’ holding that the text of resolutions presented to the School Reform Commission at a public meeting were not exempt from disclosure under this exception. The Commonwealth Court explained that the text of the resolutions “were no longer ‘internal’ deliberations once the [resolutions] were presented . . . for public consideration and comment.” 49 A.3d at 453.
With respect to agencies subject to the Sunshine Act, the pre-decisional deliberation exception applies only if: (1) the requested information constitutes records that reflect pre-decisional deliberations; and (2) the requested records were not presented to a quorum for deliberation, in accordance with the Sunshine Act. Phila. Public Sch. Notebook, 49 A.3d at 453.
(11) “A record that constitutes or reveals a trade secret or confidential proprietary information.”
The Law defines “trade secret” as:
“Information, including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. The term includes data processing software obtained by an agency under a licensing agreement prohibiting disclosure.”
65 Pa. Stat. Ann. § 67.102; see, e.g., Dep’t of Pub. Welfare v. Eiseman, 125 A.3d 19, 32 (Pa. 2015) (observing that, under this definition, contractual payment rates “are not a close fit with the concept of a ‘trade secret’”).
Courts recognize that this definition of “trade secret” is identical to the one contained in the Uniform Trade Secrets Act. Courts, therefore, have adopted the Uniform Trade Secret Act’s six-factor test to determine whether information should be considered a “trade secret.” See, e.g., Smith ex rel. Butz, LLC v. Pa. Dep’t of Envtl. Prot., 161 A.3d 1049, 1064 (Pa. Commw. Ct. 2017) (citing 12 Pa. C.S.A. §§ 5302, 5308). Notably, however, in light of the language of 65 Pa. Stat. Ann. § 67.708(c), the Uniform Trade Secrets Act does not exempt from disclosure financial records that may qualify thereunder as a “trade secret.” Eiseman, 125 A.3d at 32.
The Law also defines “confidential proprietary information” as “[c]ommercial or financial information received by an agency: (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.” 65 Pa. Stat. Ann. § 67.102.
“In determining whether certain information is ‘confidential,’ . . . ‘the efforts the parties undertook to maintain their [sic] secrecy’” must be considered. Butz, 161 A.3d at 1064 (citation omitted). And to determine “whether disclosure of confidential information will cause ‘substantial harm to the competitive position’ of the person from whom the information was obtained, an [agency or] entity needs to show: (1) actual competition in the relevant market; and, (2) a likelihood of substantial injury if the information were released.” Id. (citation omitted). This “[c]ompetitive harm analysis is limited to harm flowing from the affirmative use of proprietary information by competitors.” Id. (internal quotation marks and citations omitted); see also Crouthamel v. Dep’t of Transp., 207 A.3d 432, 441 (Pa. Commw. Ct. 2019) (affirming the OOR’s final determination that information relating to a specific construction project, i.e., mix formulas for asphalt and production quantities, was exempt from disclosure as “confidential proprietary information”).
In addition to the above, 65 Pa. Stat. Ann. § 67.707(b) provides that an “agency shall notify a third party of a request for a record if the third party provided the record and included a written statement signed by a representative of the third party that the record contains a trade secret or confidential proprietary information.” Under the same Section, the agency shall provide the notification to the third party “within five business days of receipt of the request for the record.” Id. Thereafter, the “third party shall have five business days from receipt of notification from the agency to provide input on the release of the record.” Id. In total, the agency has 10 days from the “provision of notice to the third party” to release the records or deny the request and also provide notification to the third party of the agency’s decision. Id.
(12) “Notes and working papers prepared by or for a public official or agency employee used solely for that official's or employee's own personal use, including telephone message slips, routing slips and other materials that do not have an official purpose.”
In City of Philadelphia v. Philadelphia Inquirer, the Commonwealth Court held that the mayor’s and city council members’ calendars were exempt from disclosure because the requested documents were created solely for the convenience of the mayor and city council members’ personal use in scheduling daily activities and were not circulated outside of the officials’ offices. 52 A.3d 456, 461-62 (Pa. Commw. Ct. 2012). The court explained that the term “personal” in this exemption “covers those documents necessary for that official that are ‘personal’ to that official in carrying out his public responsibilities.” Id. at 461. In other words, the documents do not need to involve a public official’s personal affairs. Id.; see also Butz, 161 A.3d at 1067 (holding that the agency met its burden of demonstrating that handwritten personal notes prepared by department staff and used solely for the note taker’s own personal use were exempt from disclosure under this exemption).
(13) “Records that would disclose the identity of an individual who lawfully makes a donation to an agency unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official or employee of the agency, including lists of potential donors compiled by an agency to pursue donations, donor profile information or personal identifying information relating to a donor.”
This exemption “protects the identity of individuals acting as private citizens to make contributions to their government.” Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 730 (Pa. Commw. Ct. 2016).
For purposes of this exemption, “individual” means a natural person, as set forth in the Statutory Construction Act, 1 Pa. C.S.A. § 1991. Cal. Univ. of Pa. v. Bradshaw, 210 A.3d 1134 (Pa. Commw. Ct. 2019). Moreover, the term “donation” is not limited to monetary contributions. Rather, the term here also applies to the volunteering of property and services. Gillen, 151 A.3d at 729.
(14) “Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative works in progress, research-related material and scholarly correspondence of a community college or an institution of the State System of Higher Education or a faculty member, staff employee, guest speaker or student thereof.”
(15) “(i) Academic Transcripts. (ii) Examinations, examination questions, scoring keys or answers to examinations. This subparagraph shall include licensing and other examinations relating to the qualifications of an individual and to examinations given in primary and secondary schools and institutions of higher education.”
(16) “A record of an agency relating to or resulting in a criminal investigation, including: (i) Complaints of potential criminal conduct other than a private criminal complaint. (ii) Investigative materials, notes, correspondence, videos and reports. (iii) A record that includes the identity of a confidential source or the identity of a suspect who has not been charged with an offense to whom confidentiality has been promised. (iv) A record that includes information made confidential by law or court order. (v) Victim information, including any information that would jeopardize the safety of the victim. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of a criminal investigation, except the filing of criminal charges. (B) Deprive a person of the right to a fair trial or an impartial adjudication. (C) Impair the ability to locate a defendant or codefendant. (D) Hinder an agency's ability to secure an arrest, prosecution or conviction. (E) Endanger the life or physical safety of an individual. This paragraph shall not apply to information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to definitions) and utilized or maintained by the Pennsylvania State Police, local, campus, transit or port authority police department or other law enforcement agency or in a traffic report except as provided under 75 Pa.C.S. § 3754(b) (relating to accident prevention investigations).”
This exemption is consistent with yet broader than the old Act’s “investigation” exemption which precluded from disclosure “information related to police investigations.” Tapco, Inc. v. Twp. of Neville, 695 A.2d 460, 464 (Pa. Commw. Ct. 1997) (citing Sullivan v. City of Pittsburgh, 561 A.2d 863, 865 (Pa. Commw. Ct. 1989), pet. denied, 575 A.2d 120 (Pa. 1990)); see also Commonwealth v. Mines, 680 A.2d 1227, 1229 (Pa. Commw. Ct. 1996) (“[I]nformation relating to police investigations . . . is excluded from the definition of public records, and therefore, its disclosure is not mandatory under the Act.”).
In determining whether a record is exempt under the current exemption, as relating to a criminal investigation, each record must be reviewed on a case-by-case basis. Pa. State Police v. Grove, 161 A.3d 877, 894 (Pa. 2017) (“Grove II”). The “mere fact that that a record has some connection to an investigation does not automatically exempt it.” Cent. Dauphin Sch. Dist. v. Hawkins, 199 A.3d 1005, 1020 (Pa. Commw. Ct. 2018) (citing Grove II, 161 A.3d at 894). The record must “relate to” an agency’s criminal investigation, i.e., its “systematic inquiry of examination into a potential crime.” Grove II, 161 A.3d at 893.
A record may relate to an investigation even if it was created before an investigation begins. Rothey, 185 A.3d 456; see also Port Auth. of Allegheny Cty. v. Towne, 174 A.3d 1167, 1171 (Pa. Commw. Ct. 2017) (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”). When records involve “nothing more than what a bystander would observe,” the records are not exempt. Grove II, 161 A.3d at 894.
This exemption has been applied to exempt from disclosure a video that recorded an assault by a police officer on a detainee, a video that recorded witness interviews, a record containing facts of the execution of a search warrant by Pennsylvania State Police troopers, and notes of police interviews. See Rothey, 185 A.3d at 466 (record of officer assault), Pa. State Police v. Grove, 119 A.3d 1102 (Pa. Commw. Ct. 2015) (“Grove I”) (record of witness interviews), Mitchell v. Office of Open Records, 997 A.2d 1262, 1263 (Pa. Commw. Ct. 2010) (record of search warrant execution); Pa. State Police v. Office of Open Records, 5 A.3d 473, 479 (Pa. Commw. Ct. 2010) (record of interview notes).
(17) “A record of an agency relating to a non-criminal investigation, including: (i) Complaints submitted to an agency. (ii) Investigative materials, notes, correspondence and reports. (iii) A record that includes the identity of a confidential source, including individuals subject to the act of December 12, 1986 (P.L. 1559, No. 169), known as the Whistleblower Law. (iv) A record that includes information made confidential by law. (v) Work papers underlying an audit. (vi) A record that, if disclosed, would do any of the following: (A) Reveal the institution, progress or result of an agency investigation, except the imposition of a fine or civil penalty, the suspension, modification or revocation of a license, permit, registration, certification or similar authorization issued by an agency or an executed settlement agreement unless the agreement is determined to be confidential by a court. (B) Deprive a person of the right to an impartial adjudication. (C) Constitute an unwarranted invasion of privacy. (D) Hinder an agency's ability to secure an administrative or civil sanction. (E) Endanger the life or physical safety of an individual.”
To a degree, this exemption overlaps with the exemption under 65 Pa. Stat. Ann. § 67.708(16). See Cent. Dauphin Sch. Dist., 199 A.3d at 1017 (observing that Grove II was relevant to the court’s review of the trial court’s holding that a school bus video did not “relate to” a school district’s non-criminal investigation); see also Borough of Pottstown v. Suber-Aponte, 202 A.3d 173, 185 (Pa. Commw. Ct. 2019) (referring to Grove II in reversing trial court’s holding that footage of public area of police department was related to a non-criminal investigation); Towne, 174 A.3d at 1171 (“[R]ecords created before investigations and accessed only when necessary can constitute investigative records, especially when the agency asserts that their only purpose is for use in investigations.”). Of course, unlike the 65 Pa. Stat. Ann. § 67.708(16) exemption, this exemption concerns records that “relate to” a “noncriminal investigation.”
A “noncriminal investigation” is “one not undertaken for a criminal prosecution and denotes ‘a systematic or searching inquiry, a detailed examination, or an official probe.’” Hawkins, 199 A.3d at 1017 (quoting Dep’t of Health v. Office of Open Records, 4 A.3d 803, 811 (Pa. Commw. Ct. 2010)). The “inquiry, examination, or probe must be conducted as ‘part of the agency’s official duties.’” Id. (quoting Dep’t of Health, 4 A.3d at 814).
In Department of Health, the requestor sought documents relating to inspections and surveys conducted by the Department at a nursing home. Dep’t of Health, 4 A.3d at 804. The inspections and surveys were authorized and mandated by statute. See id. at 804, 805-06. In relevant part, the Department rejected the request on grounds that the documents were exempt because they related to a noncriminal investigation. The OOR disagreed, concluding that the documents, at most, related to an inspection, but not an investigation. Accordingly, the OOR ruled in the requestor’s favor. On appeal, the Commonwealth Court reversed the OOR’s conclusion that the requested documents were not exempt under 65 Pa. Stat. Ann. § 67.708(b)(17). Id. at 815-16. The Commonwealth Court rejected the idea that for an agency’s activities to qualify as an “investigation” a triggering event such as the filing of a complaint was necessary. See id. at 812-14. Rather, the focus is to be on the agency’s official duties. Id. at 814. Because the inspections and surveys performed by the Department were within the Department’s official duties, the documents related to those activities were exempt from disclosure under 65 Pa. Stat. Ann. § 67.708(b)(17).
(18) “(i) Records or parts of records, except time response logs, pertaining to audio recordings, telephone or radio transmissions received by emergency dispatch personnel, including 911 recordings. (ii) This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure.”
Under Section 708(b)(18), it is clear that “time response logs” are not exempt from disclosure. Furthermore, to permit the citizenry to scrutinize the actions of public officials by evaluating the efficiency of emergency responses and to permit agencies to monitor their own performances, “time response logs” must contain the time of a request for service, the address or cross-street information, and the time when the responder arrived at the scene. Cty. of York v. Office of Open Records, 13 A.3d 594, 602 (Pa. Commw. Ct. 2011).
(19) “DNA and RNA records.”
(20) “An autopsy record of a coroner or medical examiner and any audiotape of a postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy report, a photograph, negative or print, including a photograph or videotape of the body or any portion of the body of a deceased person at the scene of death or in the course of a postmortem examination or autopsy taken or made by or caused to be taken or made by the coroner or medical examiner. This exception shall not limit the reporting of the name of the deceased individual and the cause and manner of death.”
(21) “(i) Draft minutes of any meeting of an agency until the next regularly scheduled meeting of the agency. (ii) Minutes of an executive session and any record of discussions held in executive session.”
(22) “(i) The contents of real estate appraisals, engineering or feasibility estimates, environmental reviews, audits or evaluations made for or by an agency relative to the following: (A) The leasing, acquiring or disposing of real property or an interest in real property. (B) The purchase of public supplies or equipment included in the real estate transaction. (C) Construction projects. (ii) This paragraph shall not apply once the decision is made to proceed with the lease, acquisition or disposal of real property or an interest in real property or the purchase of public supply or construction project.”
(23) “Library and archive circulation and order records of an identifiable individual or groups of individuals.”
(24) “Library archived and museum materials, or valuable or rare book collections or documents contributed by gift, grant, bequest or devise, to the extent of any limitations imposed by the donor as a condition of the contribution.”
(25) “A record identifying the location of an archeological site or an endangered or threatened plant or animal species if not already known to the general public.”
(26) “A proposal pertaining to agency procurement or disposal of supplies, services or construction prior to the award of the contract or prior to the opening and rejection of all bids; financial information of a bidder or offeror requested in an invitation for bid or request for proposals to demonstrate the bidder's or offeror's economic capability; or the identity of members, notes and other records of agency proposal evaluation committees established under 62 Pa.C.S. § 513 (relating to competitive sealed proposals).”
As used here, an “award of the contract” means the point of time at the execution of the contract, not the selection of successful offerors. United Healthcare of Pa., Inc. v. Pa. Dep’t of Human Servs., 187 A.3d 1046, 1058 (Pa. Commw. Ct. 2018).
(27) “A record or information relating to a communication between an agency and its insurance carrier, administrative service organization or risk management office. This paragraph shall not apply to a contract with an insurance carrier, administrative service organization or risk management office or to financial records relating to the provision of insurance.”
(28) “A record or information: (i) identifying an individual who applies for or receives social services; or (ii) relating to the following: (A) the type of social services received by an individual; (B) an individual's application to receive social services, including a record or information related to an agency decision to grant, deny, reduce or restrict benefits, including a quasi-judicial decision of the agency and the identity of a caregiver or others who provide services to the individual; or (C) eligibility to receive social services, including the individual's income, assets, physical or mental health, age, disability, family circumstances or record of abuse.”
The Law defines “social services” as:
“Cash assistance and other welfare benefits, medical, mental and other health care services, drug and alcohol treatment, adoption services, vocational services and training, occupational training, education services, counseling services, workers' compensation services and unemployment compensation services, foster care services, services for the elderly, services for individuals with disabilities, and services for victims of crimes and domestic violence.”
65 Pa. Stat. Ann. § 67.102.
(29) “Correspondence between a person and a member of the General Assembly and records accompanying the correspondence which would identify a person that requests assistance or constituent services. This paragraph shall not apply to correspondence between a member of the General Assembly and a principal or lobbyist under 65 Pa.C.S. Ch. 13A (relating to lobbyist disclosure).”
(30) “A record identifying the name, home address or date of birth of a child 17 years of age or younger.”
In addition to the Section 708 exceptions, the Law permits an agency to deny a requester access:
• “when timely access is not possible due to fire, flood or other disaster”; or
• “to historical, ancient or rare documents, records, archives and manuscripts when access may, in the professional judgment of the curator or custodian of records, cause physical damage or irreparable harm to the record.”
65 Pa. Stat. Ann. § 67.506(b)(1)(i), (ii). Of course, to “the extent possible, the contents of a record under this subsection shall be made accessible to a requester even when the record is physically unavailable.” 65 Pa. Stat. Ann. § 67.506(b)(2).
Other Pennsylvania statutes, administrative code provisions, and policies either specifically grant or deny access to information from the government. Some important examples are:
Under the current version of Pennsylvania’s abortion control statute, absent a medical emergency, a pregnant woman who is less than 18 years old and not emancipated, or who has been adjudged an incapacitated person, must obtain the consent of a parent, a guardian, or the courts before she can have an abortion. 18 Pa. C.S.A. § 3206. Court proceedings under the Law are confidential, all records of such proceedings are to be sealed, and the name of the person seeking court consent for an abortion may not be entered on a docket. Id.
Every facility that performs abortions in Pennsylvania must file a quarterly report showing the number of abortions performed for the quarter year, as well as the total abortions performed in each trimester of pregnancy. If the facility has received state-appropriated funds within the twelve months before the filing, the reports are to be available to the public. 18 Pa. C.S.A. § 3214. The public also has access to an annual statistical report regarding maternal death rates arising from pregnancy, childbirth or intentional abortion. Id.
Information relating to the relationship of an adoptee to his or her birth parents is confidential. 23 Pa. C.S.A. § 2935.
Records of AIDS-related testing, treatment and counseling are confidential and may not be released except as specified by the Pennsylvania Confidentiality of HIV-Related Information Act. See 35 P. S. §§ 7607-7608. The person who is the subject of such records may give his or her written consent to disclose HIV-related information, but the form, content, and expiration dates of such consensual disclosures are strictly regulated by law. Id. § 7607. Courts may also release AIDS records when the person seeking the information or the person seeking to disclose the information establishes a “compelling need” for the information. Id. § 7608. This is a very high standard of proof that rarely will be met.
All records relating to registration and numbering of boats shall be public records. 30 Pa. C.S.A. § 5313.
The campus police or campus security officers of each institution of higher education must maintain a daily log as a public record. 18 P.S. § 20.303. These logs will include all complaints and crime reports, the disposition of any charges filed, the names and addresses of only those adult persons arrested and charged, and the charges filed against those persons. Id.
Under the Solicitation of Funds for Charitable Purposes Act, registration statements and applications, reports, notices, contracts or agreements between charitable organizations and professional fundraising counsels, professional solicitors and commercial co-venturers, and other similar documents are generally available to the public for review. 10 P.S. § 162.11. In addition, these charitable organizations, professional fundraising counsels and professional solicitors are required to keep accurate fiscal records of their activities in Pennsylvania, which will be made available to the public after removing any information that could identify specific contributors. Id. § 162.12.
While Pennsylvania’s Criminal History Record Information Act classifies records maintained in a central repository as confidential, it expressly reserves the public’s right to access certain other information. See 18 Pa. C.S.A. §§ 9101-9183. For example, a criminal justice agency can disclose any information that can be found in police blotters, documents prepared or maintained by or filed in any court in Pennsylvania, posters, announcements, or lists for identifying or apprehending fugitives or wanted persons, or announcements of executive clemency. Id. § 9104. Under Pennsylvania’s Megan’s Law (42 Pa. C.S.A. § 9799.10, et seq.) certain information regarding sexually violent offenders is public information, including name, alias, year of birth, address of home and employer and description of the underlying offense. See 42 Pa. C.S.A. §§ 9799.28, 9799.63. Information regarding non-sexually violent predators (i.e., persons not likely to engage in predatory sexually violent offenses upon release from custody) is “investigative information” and not accessible. Dep’t of Auditor Gen. v. Pa. State Police, 844 A.2d 78, 80 (Pa. Commw. Ct. 2004).
The general policy of the Administrative Office of Pennsylvania Courts is to make case indexes, dockets, and files for all matters originating in a District Justice office available to the public for inspection and photocopying. Pub. Access Policy of the Unified Judicial Sys. of Pa.: Dist. Justice Records (Admin. Office of Pa. Courts 1997). Access to certain information may be limited due to personal privacy and security concerns, such as the protection of the identities of child victims of sexual or physical abuse. Id.
Most records, reports or other information obtained under the Hazardous Sites Cleanup Act that relate to health or safety effects of a hazardous substance or contaminant can be obtained from the Department of Health. 35 P S. § 6020.503.
According to the Worker and Community Right-to-Know Act, any person living in Pennsylvania who is not a competitor may request from the Department of Health a copy of any Material Safety Data Sheet or Hazardous Substance Fact Sheet on file for a particular workplace. 35 P.S. § 7305.
The Health Care Cost Containment Act requires the council to provide the general public with reports, which include information regarding health care providers and services available in the area, such as comparisons among providers of provider service effectiveness, differences in mortality rates, differences in length of stay, ancillary services provided, and incidence rates of selected procedures. 35 P.S. § 449.7. The council may also, at its discretion, provide the public with access to special reports derived from its raw data for a reasonable fee. Id.
According to the Higher Education Gift Disclosure Act, every college and university must disclose, and make available to the public for review and copying, information regarding gifts of at least $100,000, in which a foreign government, foreign legal entity or foreign person contributed more than 50% of the total gift. 24 P.S. §§ 6303, 6305.
A central personnel file for all House of Representatives employees, containing the employees’ job titles, duties, and compensation, must be maintained and kept available for public inspection. 46 P. S. § 42.121g. In addition, all vouchers submitted for reimbursement from any House Appropriation Account are available for public inspection. Id. § 42.121h.
All papers, records, and documents of the Department of Environmental Protection, and applications for permits pending before the department that relate to the disposal of refuse from mines, except for information pertaining only to the chemical and physical properties of coal, are available to the public for inspection. 52 P.S. § 30.55.
Working papers, recorded information, and documents produced or obtained by the Insurance Department or any other person in the course of an insurance examination are generally treated as confidential. 40 P.S. § 323.5. The only exception to this rule is that thirty days after an examination report is adopted, it may be treated as a public record if no court has stayed its publication. Id.
The names and addresses of all persons who have a pecuniary interest in the conduct of business on premises that are licensed for the sale of liquor, alcohol, and malt and brewed beverages are available to the public. 47 P.S. § 4-473.
Any business entity which has received any non-bid contracts from the Commonwealth or its political subdivisions during the previous year must submit to the Secretary of the Commonwealth (1) an itemized list of all political contributions made by any officer, director, associate, owner or member of their immediate family when the contributions exceed an aggregate of $1,000; and (2) all political contributions made by any employee or members of his immediate family when contributions exceed $1,000. 25 P. S. § 3260a. It is the responsibility of the Secretary of the Commonwealth to publish and make available to the public a complete list of all contributions for inspection and copying. Id.
In general, mental health treatment records are confidential. 50 P.S. § 7111.
All documents of the Department of Environmental Protection, and applications for permits pending before the department that relate to non-coal surface mining, except for information pertaining only to the chemical and physical properties of the mineral or elemental content that is potentially toxic to the environment, are available to the public. 52 P.S. § 3310.
All rules, regulations, and orders issued by the Oil and Gas Conservation Commission must be kept in writing, and they must be made available to the public. 58 P S. § 410.
Absent a court order stating that disclosure of such information would unreasonably put a child or party’s health, liberty or safety at risk, the identity of and the amount of overdue support owed by any person who has failed to pay his or her support obligation will be made available to the public either by a paper listing, diskette or any other electronic means, and it will be updated at least monthly. See 23 Pa. C.S.A. § 4352.
Information contained in state motor vehicle records is generally considered confidential, absent the express consent of the person who is the subject of the record. 75 Pa. C.S.A. § 6114. Under federal law, however, personal information found in a motor vehicle record may be disclosed for a variety of reasons, including for use in research activities (i.e., the production of statistical reports), “so long as the personal information is not published, redisclosed, or used to contact individuals.” 18 U.S.C. § 2721.
Applications for licenses to become a dealer in precious metals are public records. 73 P.S. § 1932.
All reports and analyses compiled by or filed with the Public Employee Retirement Commission shall be available for public inspection at the offices of the commission. 43 P.S. § 1409.
The Public Utility Commission must make the following information available to the public: (i) records of the names of each consultant hired, the services performed for the commission, and the amounts expended for these services, (ii) copies of reports regarding increased rates charged by public utilities due to fluctuations in fuel costs, and (iii) copies of similar reports regarding tariffs filed by natural gas companies due to fluctuations in natural gas costs. 66 Pa. C.S.A. §§ 305, 1307.
The Department of Human Services will only furnish the identities of and other personal or confidential information regarding welfare recipients to adult residents of the Commonwealth of Pennsylvania who will not use the information for commercial or political purposes. Information regarding any person’s application or receipt of medical assistance is not public. 62 P.S. § 404.
According to each commission’s respective River Basin Compact, both the Delaware River Basin Commission and the Susquehanna River Basin Commission must make annual reports discussing their programs, operations and finances, and annual audits of their financial accounts available to the public. 32 P.S. § 815.101 (regarding the Delaware River Basin Compact); 32 P.S. § 820.1 (regarding the Susquehanna River Basin Compact).
The following information regarding Senate employees must be made available to the public: employees’ names, addresses, job titles, duties, and compensation. 46 P.S. § 42.102d. The public also has access to all vouchers submitted for reimbursement or payment for any appropriation made to the Senate. Id.
The Pennsylvania Commission on Sentencing, through the Inter-University Consortium for Political and Social Research, releases sentencing data sets for each year, as well as a variety of standard reports which include specific types of information. Sentencing in Pennsylvania, 2017 Annual Report (available at http://pcs.la.psu.edu/publications-and-research/annual-reports). The names and social security numbers of the offenders, as well as the names of the sentencing judges, will be removed from any data sets made available to the public. Id.
The State Ethics Commission is authorized to investigate potential violations of the Law, to make findings of fact regarding violations, and to hold hearings to determine whether a violation of the Law has in fact occurred. 65 Pa. C.S.A. § 1107. While the Commission is required to keep confidential its investigative records, including records of its proceedings, the commission’s final orders and findings of fact entered after the conclusion of an investigation are public records. Id. § 1108; see also Stilp v. Contino, 743 F.Supp.2d 460 (M.D. Pa. 2010) (holding that to the extent § 1108(k) prohibits the disclosure of the fact of filing a complaint with the commission, the statute is an unconstitutional infringement on the First Amendment freedom of speech).
Information gained by the Department of Revenue or any administrative department, board or commission, as a result of a tax return or investigation required or authorized under Pennsylvania statutes that impose taxes or provide for the collection of taxes, is confidential. 72 P.S. § 7274; see also id. § 731. Similarly, local taxing authorities such as school districts are statutorily prohibited from disclosing tax information. See 53 Pa. C.S.A. § 8437; see, e.g., Juniata Valley Sch. Dist. v. Wargo, 797 A.2d 428, 430-31 (Pa. Commw. Ct. 2002); Scranton Times, L.P. v. Scranton Single Tax Office, 736 A.2d 711, 713-15 (Pa. Commw. Ct. 1999).
The mayor of first-class cities must maintain a public record of all tenement-house licenses issued, and the original applications must be preserved for one year. 53 P.S. § 15093; see also id. § 15074 (defining “tenement house” as a “building which, or a portion of which, is occupied, or is to be occupied, as a residence of three or more families, living independently of each other, and doing their cooking upon the premises”).
The county commissioners of each county shall compile a list, known as the Veterans’ Grave Registration Record, of the burial places within such county of servicepersons and all veterans. 16 P.S. §§ 1923-A, 5123, 8041, 8069. The lists are available for public inspection, and they should include the service in which the person was engaged, the number of the regiment, company or command, the rank and period of service, the name and location of the cemetery or other place in which the person's body is interred, the location of the grave in a cemetery or other place, and the character of headstone or other marker, if any, at the grave. Id.
Vital Statistics
Vital statistics records, such as birth and death certificates, are generally not available to the public. 35 P.S. § 450.801. Certain vital statistics records, however, can be made available to applicants who show a direct interest in the content of the vital statistics record and that the information in the record is necessary for the determination of personal or property rights. Id. § 450.804
The following documents are generally open to public inspection: records of registration commissions and district registers, street lists, official voter registration applications, petitions and appeals, witness lists, accounts and contracts, and reports. 25 Pa. C.S.A. § 1207.
Street lists include the names and addresses of all registered electors residing in the district. 25 Pa. C.S.A. § 1403. And the commission may, for a reasonable fee, distribute the list to “organized bodies of citizens.” Id.
Public information lists contain the name, address, date of birth and voting history of each registered voter in the county, and they may also contain information on voting districts. 25 Pa. C.S.A. § 1404. Any individual who inspects the list, or who acquires names of registered voters from the list, must state in writing that any information obtained from the list will not be used for purposes unrelated to elections, political activities or law enforcement. Id.
Each commission must preserve computer lists used as district registers for five years. 25 Pa. C.S.A. § 1405. The department and each commission must preserve for two years and make available to the public all records pertaining to the implementation of programs and activities conducted for the purposes of ensuring the accuracy and currency of official lists of registered electors, except to the extent that the records relate to a declination to register to vote or to the identity of a voter registration agency through which any qualified elector is registered. Id.
An up-to-date Water Acquisition Record, containing information on all confirmed water right acquisitions and all permits for the acquisition of water rights, must be made available for public inspection. 32 P.S. § 634.
FERPA is a federal law that provides privacy protections to students and parents concerning a student’s educational records. See 20 U.S.C. § 1232g.
The scope of records covered by the Law does not “supersede or modify the public or nonpublic nature of a record or document established in [f]ederal or [s]tate law, regulation or judicial order or decree.” 65 Pa. Stat. Ann. § 67.306; see also 65 Pa. Stat. Ann. § 67.3101.1 (“If the provisions of this act regarding access to records conflict with any other [f]ederal or [s]tate law, the provisions of this act shall not apply.”). In other words, if some other Pennsylvania or federal statute, regulation or order requires or prohibits access, the Law does not change that.
Note: In McMullan v. Wohlgemuth, the Pennsylvania Supreme Court reversed a decision ordering the Department of Public Welfare to grant reporters access to requested public-assistance information. 308 A.2d 888 (Pa. 1973). The court explained that the First Amendment to the United States Constitution does not guarantee to the press the right to gather information for news reporting that is statutorily protected from disclosure. Id. at 896-98. Further, in Capital Cities Media, Inc. v. Chester, the United States Court of Appeals for the Third Circuit (which includes Pennsylvania’s federal courts) rejected the contention that the First Amendment afforded the public a broad right of access to documents and records held by a Pennsylvania administrative agency. 797 F.2d 1164, 1175-76 (3d Cir. 1986) (en banc); see also First Amendment Coal. v. Judicial Inquiry and Review Bd., 784 F.2d 467 (3d Cir. 1986) (vacating decision finding a First Amendment violation for the non-disclosure of records relating to all judicial disciplinary proceedings, at all stages).