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Pay Up or Else

by Charles A. Rausch, Esquire

Since its passage seven years ago, the Right-To-Know (RTK) Law has spawned a ton of lawsuits interpreting its provisions.  The latest lawsuit involves a fight involving a request to the Department of Education for records between the former Secretary of Education and Penn State Board members and administrators over the Gerald Sandusky investigation. Pennsylvania Department of Education v. Bagwell  (No. 1617 C.D. 2014, Pa Commonwealth Court, filed January 29, 2016.  This is a consolidated appeal with Pennsylvania State University v. Bagwell, (No. 1729 C.D. 2014)).

The fight in this appeal is when can an agency demand prepayment before releasing records under the RTK law.  The RTK law requires that an agency respond within five business days to a request.  Within that five-day period, an agency can either grant the request, deny the request, or invoke the thirty-day extension period.   If the agency invokes the thirty-day extension, the notice “shall” include a statement that the request is being reviewed, the reason for the review, a reasonable date when a response will be provided and an estimate of the applicable fees owed when the records become available.  The RTK law also provides that if the estimate exceeds $100.00, the agency can demand prepayment before releasing the records.

The Department in this case sent a response within the five days that it needed the additional thirty days to conduct a legal review of the records, but did not contain an estimate of fees.  On the final day of the extension period, the Department sent another notice to the requester that it located 644 pages of records, but that its response is not final.  The Department stated that it reserved the right in its final response  to assert any exceptions under the RTK law, and that the requester had to pay $338.88 before the Department would provide access to the records since the estimate exceeded $100.00.  The Department stated that once the fees were paid, it would then assert any applicable exceptions under the RTK law in its final response.

The requester appealed the Department’s response, and the Office of Open Records (OOR) ruled that the Department waived its ability to seek prepayment because it did not include a fee estimate in the original five-day notice.  The OOR also ruled that the Department could not claim exemptions beyond the thirty-day period,

The Commonwealth Court first addressed the prepayment issue.  Although the RTK law states that the five-day notice shall include an estimate of fees, this really means that when the thirty-day extension is invoked, the notice has to include a reasonable future date that a response and an estimate of fees is expected to be provided.  This interpretation makes sense because an agency cannot give an estimate of fees until after it has had an opportunity to review the records to determine which records are public and which are subject to an exemption.  The Commonwealth Court found that the Department did not waive its right to assess fees.

However, the Commonwealth Court noted that the fees assessed by the Department were for processing the request, and not just for copy costs.   The Department stated that it had not reviewed the records to determine which were exempt, but it was charging the requester for having to make copies of the records in order for the Department to conduct the review,  The Commonwealth Court held that this is not allowed under the RTK law.  An agency can only charge for making copies of records that it determines to be public after it does its review,

The Commonwealth Court also held that thirty days means thirty days to issue a response.  An agency cannot reserve its reasons for withholding or redacting records beyond the thirty-day period (unless the requester agrees).