By Craig J. Staudenmaier
Nauman, Smith, Shissler & Hall, LLP

The Commonwealth Court held in a recent decision that the five-business day response period under Section 901 does not begin to run until the open-records officer receives the request. Receipt of the request by any other officer or employee of the agency does not begin the response period.

In Commonwealth of Pennsylvania Office of the Governor v. Sean Donahue and the Office of Open Records, No. 376 M.D. 2012, decided January 23, 2013, the Commonwealth Court considered cross-applications for summary relief filed by both the Office of the Governor (“Office”) and the Office of Open Records (“OOR”).

The court rejected the OOR’s position that the time period under Section 901 commenced when any agency employee receives the request.

The court accepted the Office’s position that the five-day time frame did not commence until actual receipt of the request by the open-records officer.

Judge Brobson stated that the statutory language of Section 901 is clear and free from ambiguity wherein it states, “the time for response shall not exceed five business days from the date the written request is received by the open-records officer for an agency.”

The court was unpersuaded by the OOR’s arguments that the concluding language of Section 901 which refers to the “agency” overcame this clear language and also rejected the argument that, holding otherwise, would make it difficult to know when the five-day period began or when an appeal to the OOR was timely.

The court also rejected the OOR’s argument that this strict interpretation of Section 901 could lead to a delay in the transmission of requests by employees to the open-records officer.

Therefore, it is going to be imperative upon requesters to be certain that they identify exactly who the open-records officer of the agency to whom they are submitting their request is and that the request be submitted directly to that person.

It remains to be seen what effect this decision will have overall, however, it should, to some extent, reduce the number of deemed denials.