Pennsylvania’s New Right To Know Law: A Powerful Tool in the Discovery Process
On January 1, 2009, Pennsylvania’s new Right To Know Law (“RTKL”) took effect. The new RTKL, which replaces a since-repealed law of the same name, makes it easier for a person or entity to obtain records from Pennsylvania state and local agencies. Under the the new RTKL, codified at 65 P.S. § 65.101 et seq., a party requesting records from a state or local agency no longer bears the burden of establishing why a record should be produced. Under the new law, the agency to which a RTKL request is directed now bears the burden of establishing why a record should be withheld from production.
The RTKL applies to “all agencies,” which the Act defines as “[a] Commonwealth agency, a local agency, a judicial agency or a legislative agency.” The RTKL also provides a broad definition of the term “record,” which includes “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 “record” is further defined to include documents, papers, letters, maps, books, tapes, photographs, films or sound recordings, and electronically stored information.
Section 67.305 of the RTKL provides for a presumption that all records maintained by a Pennsylvania state or local agency are presumed to be public records, and hence subject to disclosure, unless the agency can establish one or more of the following factors: (1) disclosure is barred by state or federal law or regulation, or court order; (2) the requested record is privileged; or (3) one of the exceptions to the RTKL applies. In regard to the third factor, the RTKL contains thirty (30) exceptions, which permit a state or local agency to withhold information under certain circumstances. These exceptions include, but are not limited to, records that pertain to confidential personal information or public safety issues, such as Social Security numbers; driver’s license numbers; medical records; performance evaluations; criminal investigations; and internal agency deliberations. Where possible and appropriate, requested records may be redacted to exclude any information subject to the RTKL exceptions.
The RTKL requires that state and local agencies appoint an “Open Records Officer,” who is responsible for responding to RTKL requests. In most instances, the Open Records Officer must respond to a RTKL request within five (5) business days. The RTKL also requires agencies to publish certain information on their Websites, including contact information for an agency’s Open Records Officer; a form that may be used to submit a request; and the agency’s policies and procedures relating to RTKL requests.
Although an agency may honor a verbal RTKL request, a person or entity seeking records should submit the RTKL request in writing, directed to the agency’s Open Records Officer. The written request must identify and describe the records sought with sufficient specificity to allow the agency to respond appropriately, and must include the contact information of the requesting person or entity. Once a written RTKL request is submitted, the agency must respond, within five business days, by either: (1) granting the request; (2) denying the request, citing the reason for such denial; or (3) in cases where a legal review or redaction of records is required, invoke a thirty (30) day extension provided for by the Act. If an agency does not respond to a RTKL request within five business days of receipt of such request, the request is deemed to have been denied.
If a requesting party does not agree with the agency’s decision to withhold disclosure of requested records, the requesting party may file a written appeal with the Pennsylvania Office of Open Records within fifteen (15) business days of the mailing of the agency’s response. The appeal must state the grounds on which the requesting party believes it is entitled to the requested records, and should include a copy of the correspondence received from the agency. The Office of Open Records shall then issue a “Final Determination” within thirty (30) days of the filing of the appeal, which is binding upon the agency to which the request was directed. However, a requesting party may appeal a Final Determination to the appropriate court within thirty (30) days of the date of mailing of the Final Determination.
The RTKL also provides civil penalties for agencies up to $1,500.00 if an agency denies access to records in bad faith, and up to $500.00 per day where the agency fails to comply with a court order requiring disclosure of records. The RTKL also provides for awards of attorneys’ fees where an agency denies a request for records based on an unreasonable interpretation of the law or in bad faith. Similarly, an agency may seek attorneys’ fees from a requesting party where the requesting party pursues a frivolous RTKL request.
Clearly, Pennsylvania’s Right-To-Know Law serves as a powerful tool to litigants seeking to obtain records that may be critical to a cause of action they are pursuing or defending. Moreover, RTKL requests can be of great help to litigating attorneys in testing the completeness and veracity of document productions and discovery responses received from other parties to a lawsuit. Information concerning the Right-To-Know Law, including guidelines and sample forms, may be found on the Website for the Pennsylvania Office of Open Records at http://openrecords.state.pa.us.