The vast majority of government agencies in Pennsylvania — 87.4% — received 1 or fewer Right-to-Know (RTK) requests per week in 2016.
Similarly, 72.8% of agencies spent 1 hour or less per week (and 91.8% spent 5 hours or less) responding to RTK requests in 2016.
Those are some of the highlights from the first-ever statewide survey of Agency Open Records Officers (AOROs), the people responsible for responding to requests filed under Pennsylvania’s Right-to-Know Law (RTKL). The survey was conducted by the Office of Open Records’ (OOR) in February 2017.
Nearly 1,300 AOROs responded, including Commonwealth agencies and local agencies of all types (i.e., municipalities, school districts, counties, police departments, charter schools, and more). We worked with numerous organizations and the Governor’s office to get as many responses as possible.
The OOR has always had good data on appeals filed under the RTKL (because the vast majority of appeals are filed with the OOR), but this survey was the first large-scale attempt to collect good data about the requests received by agencies.
(As a result of House Resolution 50, the Legislative Budget & Finance Committee has conducted a second statewide survey of AOROs. The OOR provided input to LBFC, and I expect that survey to provide additional insights.)
The OOR’s survey asked five substantive questions:
Last month, the Pennsylvania Supreme Court issued one decision and the Commonwealth Court issued two decisions addressing issues related to home addresses, the Right-to-Know Law, and the right to privacy found in Article I, Section 1, of the Pennsylvania Constitution.
In chronological order, the decisions are:
Butler Area School District v. Pennsylvanians for Union Reform (Commonwealth Court, November 2, 2017)
Chester Housing Authority v. Polaha (Commonwealth Court, November 21, 2017)
Reese v. Pennsylvanians for Union Reform (Supreme Court, November 22, 2017: majority opinion, concurring opinion)
On November 22, 2017, the Pennsylvania Supreme Court held that District Attorneys are not judicial agencies under the Right-to-Know Law (RTKL).
In the majority opinion in the case of Stacy Parks Miller v. Centre County, authored by Justice Wecht, the Supreme Court held that: “Examination of the RTKL, the definitional section of the Judicial Code, 42 Pa.C.S. § 102, and the definitions provided in our Rules of Judicial Administration, demonstrate that a district attorney’s office is not a ‘judicial agency’ for purposes of the RTKL.”
The majority opinion was joined by Chief Justice Saylor and Justices Baer, Todd and Mundy. Justice Donohue authored a concurring opinion, joined by Justice Dougherty.
The distinction is significant because the RTKL applies in a very limited fashion to judicial agencies, which are required to provide only financial records. The law’s application to local agencies is much broader.
Act 22 of 2017 (specifically, Chapter 67A of the Act) now governs the process of requesting audio and video recordings in the possession of law enforcement agencies in Pennsylvania.
We’ve added a page to the Office of Open Records website which covers the topic in some detail (although it’s always a good idea to review the law itself). Here are some highlights.
Act 22 applies to “any audio recording or video recording made by a law enforcement agency” — the Right-to-Know Law does not apply to requests for those recordings.
Act 22 defines “law enforcement agency” as:
- The Office of the Attorney General;
- A District Attorney’s Office; or
- An agency that employs a law enforcement officer.
Requests for police recordings must:
- Be sent within 60 days of the recorded event;
- Be sent to the law enforcement agency’s Open Records Officer;
- Include the date and time of the event; and
- Include the requester’s relationship to the event.
In addition, if the recording was made inside a residence, the request must identify every person present (unless their identities are unknown and not reasonably ascertainable).
After receiving a request, the agency has 30 days to respond. A request may be denied if the recording includes:
- Potential evidence in a criminal matter; or
- Information pertaining to an investigation or a matter in which a criminal charge has been filed; or
- Confidential information; or
- Victim information; and
- Reasonable redaction will not safeguard the potential evidence or the information.
If a request is granted, the agency can charge “reasonable fees” (which is undefined in the law) for a copy of the recording.
If a request is denied, the requester has 30 days to file an appeal with the appropriate Court of Common Pleas. There’s a $125 filing fee, and the appeal must include:
- Copies of the request and any response(s);
- Proof the agency’s Open Records Officer was served with the appeal; and
- If the recording was made inside a residence, proof that everyone who was in the residence was served with the appeal (unless their identities are unknown and not reasonably ascertainable).
Act 22 does allow for the discretionary release of police recordings: Nothing in the law precludes a law enforcement agency or a prosecuting attorney with jurisdiction from choosing to release an audio or video recording, with or without a written request. (In certain cases, the law enforcement agency can only release the recording with the written permission of the prosecuting attorney.)
On October 23, the Office of Open Records held its annual training session in Harrisburg. The session included presentations by Erik Arneson, executive director; Charles Brown, chief counsel; Delene Lantz, general counsel; and George Spiess, director of training and outreach.
This year, for the first time, the training was available via webinar. We’ve also uploaded the complete event to YouTube:
To learn about upcoming training events, sign up for the OOR’s email newsletter. You can also request a training session.
Here’s the presentation we used for this year’s annual training session:
OOR Annual Training – October 23, 2017 – PDF
OOR Annual Training – October 23, 2017 – PPTX
On October 20, I took part in a webinar hosted by the Pennsylvania Association of School Business Officials (PASBO). We discussed a number of issues related to the Right-to-Know Law and the Office of Open Records.
I was joined on the webinar by Clarence C. Kegel, Esq., of the law firm Kegel Kelin Almy & Lord LLP. (Clarence did the vast bulk of the work in preparing the PowerPoint presentation we used to guide the discussion.)
It was a great discussion, and I very much appreciate the invitation.
Here’s the presentation we used:
PASBO – October 20, 2017 – PDF
PASBO – October 20, 2017 – PPTX
Last Thursday, I took part in a panel discussion at a CLE organized by the Pennsylvania Public Utility Commission. We discussed a number of issues related to the Right-to-Know Law and the Office of Open Records.
Among the issues covered were the OOR’s Final Determinations in two cases (both captioned David Hommrich and Sunrise Energy LLC v. Pennsylvania Public Utility Commission), 2016-2010 and 2017-0079. The PUC has appealed both cases to Commonwealth Court.
It was a great discussion, and I very much appreciate the invitation.
Here’s the presentation I used:
Public Utility Commission CLE – June 1, 2017 – PDF
Public Utility Commission CLE – June 1, 2017 – PPTX