Photographing Public Records

On Aug. 14, the Office of Open Records issued a decision — Muenz v. Township of Reserve — which holds that requesters can photograph public records which they asked to inspect.

Following is the entire relevant section of the Muenz Final Determination (FD):

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The Requester argues that the Township did not permit photographs of responsive records to be taken. Specifically, the Requester asserts that while inspecting the requested records, upon attempting to photograph documents, he was informed by the Township police chief that he would be permitted to pay for copies of the records but that he would not be able to take photographs. The Township does not dispute these facts and argues that there is no provision in the RTKL that requires the Township to permit the Requester to photograph of records.

Section 701(a) of the RTKL requires that public records be accessible for inspection and duplication. 65 P.S. § 67.701(a). Agencies, under the RTKL, may adopt “regulations and policies necessary for … [agencies] to implement” the RTKL. See 65 P.S. § 67.504(a). In Gries v. Philadelphia City License Marriage Bureau, the OOR upheld an agency’s policy of prohibiting requesters from photographing copies of records where the agency’s fee policy was governed by a statute other than the RTKL. OOR Dkt. AP 2009-0552, 2009 PA O.O.R.D. LEXIS 660. In Wright v. Department of Corrections, the OOR held that, pursuant to an agreement between a requester and an agency, the agency was required to allow the requester “to bring his own copier or scanner.” OOR Dkt. AP 2009-0174, 2009 PA O.O.R.D. LEXIS 608.

This matter is distinguishable from Gries in that here there is no evidence that the Township is permitted by statute to impose a fee schedule separate than that set by the OOR. See 65 P.S. § 67.1307(g) (“Except as otherwise provided by statute, no other fees may be imposed unless the agency necessarily incurs costs for complying with the request, and such fees must be reasonable.”) In Gries, a separate statute set the fee schedule for the agency, in addition to authorizing the agency to set fees not expressly provided for by statute. As part of its statutory obligations, the agency adopted a policy prohibiting the use of photography.

Section 1307 of the RTKL addresses duplication, providing that “[a]n agency may waive fees for duplication of a record, including, but not limited to, when: … the requester duplicates the record[.]” 65 P.S. § 67.1307(f)(1). Therefore, the RTKL contemplates situations in which requesters themselves duplicate records, rather than seeking duplication by the agency. Photographing a document is a form of duplication and, therefore, is permissible under the RTKL. Allowing an agency which lacks separate statutory authority to set a fee schedule prohibiting the photographing of documents would be contrary to the purpose of the RTKL, which is “to maximize access to government records.” See Gingrich v. Pa. Game Comm’n, No. 1254 C.D. 2011, 2012 Pa. Commw. Unpub. LEXIS 38 at *16 (Pa. Commw. Ct. 2012). To hold otherwise would not only permit agencies to allow the public to inspect public records, but would also, following the reasoning to its logical conclusion, permit agencies to prohibit the public from taking written notes about public records or recording an audio dictation describing public records. Such an interpretation of the RTKL would lead to an absurd and unreasonable result, and cannot be said to have been the intention of the General Assembly. See 1 Pa.C.S. §1922. Therefore, under Section 701(a) of the RTKL, the Township must make responsive records available to the Requester for his inspection and duplication by photography.

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Here’s the bottom line:

Under the Right-to-Know Law, agencies cannot charge requesters who wish to use their own equipment, such as a smartphone, to photograph public records which they asked to inspect.

Note: Because the OOR’s FD granted in part and denied in part, either party can appeal this decision to the Allegheny County Court of Common Pleas within 30 days.

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