KingSpry | Right To Know Law Compliance More Costly

Right To Know Law Compliance More Costly as 2021 Begins

Posted on January 5th, 2021
by Rebecca A. Young

On December 22, 2020, the Pennsylvania Supreme Court issued a decision (Uniontown Newspaper, et al v. PA Dept of Cor.) addressing Agency obligations and the sanction provisions contained in the Right To Know Law. On the same day, the Office of Open Records also revised their fee schedule.  

The decision is instructive to public agencies to ensure a good faith search is completed. 

The case began with a 2014 request to the Department of Corrections seeking health information regarding inmates at SCI-Fayette.  The request came shortly after the Department of Corrections (DOC) completed an investigation regarding specific health concerns. 

Litigation ensued regarding the nature and scope of the DOC’s search for records, and in pursuit of enforcement of court orders directing disclosure of records. 

The Court determined that the DOC failed to meet its obligation to search for and provide records because it relied on the Department of Health (DOH) to search for records and accepted without review or consideration the DOH’s interpretation of the nature and scope of the request.  The Court upheld an award of attorney fees to the requestor in the amount of $118,458.37.

Also on December 22, the Office of Open Records issued a revised fee schedule. 

Most of the changes serve to reduce the costs that may be passed on to requestors. Specifically, the cost per black and white copy is now bifurcated, with the current $0.25/copy applicable to the first 1,000 copies and $0.20/copy for additional copies provided per request. 

OOR reduced the allowable charge for a CD or DVD from “up to actual cost, not to exceed $3.00 per disc” to “up to actual cost, not to exceed $1.00 per disc.” 

OOR also highlighted that when an agency stores records electronically, it cannot charge for copies when it is able to securely redact the records by electronic means.

Bottom Line

Schools must be prepared to demonstrate that they made a good faith effort to locate records and review compliance. Reliance on third parties, with the possible exception of the school’s solicitor, is not sufficient.

While the agency’s Open Records Officer is responsible to compile the final response, all agency staff and other records custodians must be responsible to search for records and provide them promptly to the Open Records Officer.  The ORO is ultimately responsible to monitor the agency’s search for records and ensure that all responsive records are identified and reviewed.  It is appropriate and advisable for the ORO to request documentation of the steps taken by other individuals in searching for records.

All public agencies must review their published fee schedule to ensure they are consistent with those issued by the Office of Open Records. Agencies that receive frequent requests for certain records should consider whether to apply to OOR for permission to provide enhanced electronic access to those records and to set the fees that will apply. 

Examples of approved fees and the application form are available here: 

 

If you have a question about the Right To Know law, please contact your legal counsel or one of the Education attorneys at KingSpry.

 

School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.