The decisions are in ... New Open Records Office issues first “Final Determinations”
From the PNA "Headlines & Deadlines" Newsletter
From the Pennsylvania Newspaper Association
Since February 19, Pennsylvania’s Office of Open Records has issued eleven “final determinations” on open records disputes in the Commonwealth, and the results are mostly encouraging. These decisions are binding, unless appealed within 30 days. It is highly likely that some of these decisions will be appealed.
Under the new law, all records held by state and local agencies are presumptively public, and an agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. It is clear that the Office of Open Records takes both the presumption and the burden of proof seriously, signaling a real sea change in terms of access to government in Pennsylvania. We hope, as some of these matters are appealed to the courts, that the judiciary applies the same standards and affords the decisions of the Office of Open Records appropriate deference.
Thus far, the Office has found the following:
Public Records:
- Copies of contracts and master agreements discussed at education contract subcommittee meeting. Wallace v. School District of Lancaster, AP 2009-0010.
▪ Agency payroll records, including names of employees, position/title, salary, date of birth, and hire date. WTAE-TV/Parsons v. Port Authority, AP 2009-008.
▪ Certified payroll forms submitted by government contractor on a school renovation project, including employee names. Green v. Quakertown Community School District, AP 2009-0041.
▪ Elevator maintenance reports. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
▪ List of Hearing Officers of Philadelphia Parking Authority (where agency failed to respond in a timely manner, failed to satisfy the burden of proof, and failed to provide the requester with the appropriate appeal procedure). Sabatini v. Philadelphia Parking Authority, AP 2009-0022.
- Records destroyed pursuant to an agency’s record retention policy (where agency submitted an “Attestation of Nonexistence of Records”). Ortiz v. Department of Public Welfare, AP 2009-0015.
- Investigation report conducted by building inspection underwriters. Cahill v. Borough of Penndel, AP 2009-0023.
▪ Public access to non-public areas of PennDot electronic contract management system. Hersh v. Pennsylvania Department of Transportation, AP 2009-0011
▪ Elevator investigation reports and work papers underlying an audit. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.
▪ Documents that did not exist. Krall v. Roaring Brook Township, AP 2009-0013; Kurzmiller v. Township of Shrewsbury, AP 2009-0005.
▪ An employee’s own personnel file, including performance evaluations and disciplinary records.
▪ Rech v. Department of Education, AP 2009-0034.
Pennsylvania Newspaper Association attorneys provide member newspapers with advice on the state's open records and open meetings laws, and maintain PNA Legal, a blog dedicated to discussing legal and legislative issues impacting the news media in Pennsylvania. The blog tracks issues and disputes relating to public records and meetings, including the decisions and advisories issued by Pennsylvania's new Office of Open Records.
