WEEKLY SESSION NOTES
Senate Republican Policy Committee
Sen. Jake Corman, Chairman

Tuesday, November 27, 2007

Executive Session 

Nominations to Various Boards and Commissions.  (See Attached)  Confirmed:  49-0. 

Wednesday, November 28, 2007 

Senate Bill 1 (Pileggi) would create the Right-to-Know Law.  The bill would specifically require a Commonwealth agency, a local agency and a legislative agency to provide public records or legislative records in accordance with the act.  The agencies would be prohibited from denying a requester access to a public record or legislative record due to the intended use of the record by the requester.  A judicial agency would be required to provide financial records in accordance with the act or any rule or order of court providing equal or greater access to the records.  Similarly, a judicial agency could not deny a requester access to a financial record due to the intended use of the record by the requester.  A record in the possession of a Commonwealth agency or local agency would be presumed to be a public record unless the record is exempt under Section 708 of the act, it is protected by a privilege, or it is exempt from disclosure under any other federal or state law or regulation or judicial order or decree.  Nothing in the act would supersede or modify the public or confidential nature of a record or document established in federal or state law, regulation, or judicial order or decree. 

The bill would establish an Open Records Clearinghouse in the Department of Community and Economic Development to provide information relating to implementation of and enforcement of the act, to provide training courses, to establish an internet website with information relating to the act, to conduct a biannual review of the fees charged under the act, and to review appeals of decisions by Commonwealth agencies.  The clearinghouse would be required to employ or contract with attorneys to serve as appeals officers.  Each appeals officer would be required to complete a training course.  The Governor would appoint an executive director of the clearinghouse who would serve for six years.  The executive director could not seek election or accept appointment to any political office during his or her tenure and for one year thereafter.  The clearinghouse would have to report annually to the Governor and the General Assembly on its activities. 

All agencies covered by the act would be required to designate an open-records officer who would receive requests for records, direct requests to the appropriate person, track the agency's response to the requests and maintain the required records.  The bill would require all agencies covered by the act to designate an appeals officer to hear appeals.  An agency could promulgate regulations, rules or policies necessary to implement the act.  The following information would have to be posted at each agency and, if the agency maintains an internet website, on the agency's website:  contact information for the open records officer, contact information for the applicable appeals officer, a form which could be used to file a request, and the regulations and policies of the agency relating to the act.  The clearinghouse would be required to develop a uniform form which must be accepted by all Commonwealth and local agencies, in addition to any form used by the agency to file a request under the act.  The uniform form would be published in the Pennsylvania Bulletin and on the clearinghouse's website.  Judicial agencies and legislative agencies could develop their own forms or use the one developed by the clearinghouse. 

Public records, legislative records or financial records would be available for access during the regular business hours of an agency.  An agency could make its records available through any publicly accessible electronic means.  If a requester is unwilling or unable to use the electronic access, the requester could submit a written request to have the record converted to paper.  The agency would be required to provide the paper version of the record within five days of the receipt of the request.  Nothing in the act could be construed to require access to the computer of an agency or individual employee of an agency. 

An agency could deny a requester access to a record if the requester has made repeated requests for that same record which have placed an undue burden on the agency.  Such a denial would not restrict the ability to request a different record.  An agency could exercise discretion to make an otherwise exempt record accessible for inspection or copying if the conditions outlined in the bill are met.  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, and which is directly related to the governmental function and not otherwise exempt, would be considered a public record.  Nothing in the act could be construed to modify, rescind, or supersede any record retention disposition schedule of an agency established pursuant to law, regulation, policy or other directive. 

If information which is not subject to access is an integral part of a public record, legislative record, or financial record, the agency would be required to redact the information which is not subject to access and grant access to the other information.  Information which an agency redacts would be considered a denial.  If, in response to a request, an agency produces a record that is not a public record, legislative record or financial record, the agency would be required to notify any third party that provided the record to the agency, the person that is the subject of the record and the requester.  An agency would also be required to notify, within five business days, a third party of a request if the third party provided the record and included a written statement that the record contains a trade secret or confidential proprietary information.  The third party would have five business days from receipt of the notification to provide input on the release of the record.  The agency would be required to deny the request or release the information within ten business days of the provision of notice to the third party and notify the third party of the decision.  An agency would not be required to create a record which does not exist or to compile a record in a manner in which the agency does not currently compile, maintain or organize the record.  The burden of proving that a public record is exempt from public access would be on the Commonwealth or local agency receiving the request by a preponderance of the evidence.  Section 708 of the proposed act lists the records that would be exempted from access by a requester.