Under the Right-To-Know Law, all records are presumed to be public records unless disclosure is barred by: (1) state or federal law or regulation; (2) judicial order; (3), privilege, e.g., attorney-client or doctor-patient; or (4) one of the exceptions in Section 708 of the Right-to-Know Law.
The burden is now on the government agency to establish why the record is not available.
Any political subdivision, intermediate unit, or charter, public trade or vocational school [or] any local, intergovernmental, regional or municipal agency, authority, council, board commission or similar governmental entity is subject to Right-to-Know Law.
Make sure when you file a RTK request, you are seeking records and not just asking questions. The law governs the release of records, not answering questions.
A record is defined as “any information regardless of its physical form or character that documents a transaction or activity of an agency AND is created, received, or retained pursuant to law OR in connection with a transaction, business or activity of an agency” (emphasis added).
Records can take many forms, including papers, letters, maps, books, tapes, photographs, film or sound recordings, information stored or maintained electronically, and data-processed or image-processed documents. Note that e-mails can also be a form of public records, subject to any exceptions.
All agency records are subject to the Right-to-Know Law. However, not all records are public records. The law contains 30 exceptions, cited in Section 708, that permit an Agency to withhold records. An Agency may deny release of a record if it falls within one of the 30 exceptions designed to protect information that is confidential or may jeopardize safety or investigations. Types of records that can be withheld include records related to personal or public security, DNA/RNA records, autopsy records, Social Security numbers, personal financial information, personal email addresses, marital status, identity of a covert law enforcement officer, home address of judges or law enforcement, confidential source records, and victim information. Other laws also make certain records non-public.
When submitting a request to the Agency, always retain a copy for your file. A copy of this RTK request would be necessary if you should need to file an appeal to our Office upon denial. If you do not have a copy of the actual request, your appeal will be dismissed as insufficient.
The first thing a requester should do to file a RTK request is check with the local or Commonwealth Agency to determine the Open Records Officer (each agency is required by law to have one) and whether the agency requires use of its own Right-to-Know request form. You can always use the Uniform Request Form available on our website to file a request. Address your request to the Open Records Officer. Some agencies use the term Right-to-Know Officer.
Make sure your request for records is specific and concise. Identify as specifically as you can the records you want, so that an agency can quickly locate them and determine whether they are public record.
An Agency has five business days to respond in writing to: (1) grant the request; (2) deny the request, citing the legal basis for the denial or partial denial; or (3) invoke a 30-calendar day extension for certain reasons.
The clock starts the day after the RTK request is received during regular business hours. In other words, an agency has five business days to respond to a request, whether you place the request in person or by mail.
Acceptable grounds for a 30-calendar day extension include: off-site location of records, staffing limitations, need for legal review or redaction, complex request, or the requester did not pay applicable fees as required or failed to follow agency policy.
If an agency does not respond to a request in the allotted time, the request is deemed denied, and you have the right to file an appeal with the Office of Open Records.
If an Agency denies a record, or a portion of a record, the requester has a right to file an appeal with the Office of Open Records. The appeal must be submitted to the Office of Open Records within 15 business days of the mailing date of the Agency’s response. Appeals should be sent to the Office of Open Records, 333 Market Street, 16th Floor, Harrisburg, PA 17101-2234. They may also be submitted via facsimile to (717) 425-5343 or via email as a Microsoft Word or PDF attachment. All appeals must be in writing and shall include the following information that may be submitted using the OOR’s Appeal Form:
The Office of Open Records is required to dismiss any appeal that does not include this information.
NOTE: Appeals which are filed by hard copy (i.e., by mail) MUST be submitted on 8 ½ x 11 or 8 ½ x 14 inch paper. Failure to submit hard copy appeals on 8 ½ x 11 or 8 ½ x 14-inch paper will result in the appeal being DISMISSED, unless the party filing the document specifically seeks and is granted permission to file non-conforming papers. Any other documents filed in an appeal should be filed on 8 ½ x 11 or 8 ½ x 14-inch paper to the extent possible.
When the Office of Open Records receives the appeal, it has 30 days from the date of receipt of the appeal to issue a Final Determination.
The Office of Open Records may conduct a hearing (which is a non-appealable decision) or an in-camera review. It may decide the case on the basis of the information filed with the Office. It may seek additional information from the involved parties. In most cases, the Office of Open Records will issue a Final Determination based on information and evidence provided to our Office without conducting a hearing.
When the Office of Open Records issues a Final Determination it is binding on the Agency and requester. If the Agency or the requester wants to appeal the ruling of the Office of Open Records, the appeal must be filed with the appropriate court within 30 calendar days of the mailing of the Final Determination by the Office.
If the parties appeal a Final Determination to Commonwealth Court or a Court of Common Pleas, the Right-to-Know Law requires that the Office of Open Records be served notice of the appeal.
The fee for a standard 8.5″ x 11″ black and white document is up to 25 cents per page. See the RTKL Fee Structure for more details.
The law provides a civil penalty of up to $1,500 if an Agency denies access to a public record in bad faith and up to $500 per day when an Agency does not promptly comply with a court order to release records under the act.
If a court holds that records were denied based on an unreasonable interpretation of law, or in bad faith, an Agency can be required to pay attorneys’ fees. In addition, if an appeal is deemed frivolous by the court, the requester or agency can be required to pay attorneys’ fees.