NOTICES
STATE EMPLOYEES' RETIREMENT BOARD
Right-to-Know Law Policy
[35 Pa.B. 3122] I. GENERAL POLICY
The Commonwealth of Pennsylvania State Employees' Retirement System (SERS) shall provide the public with access to public records to the fullest extent required by law consistent with its duties to protect the interests and rights of SERS and its members. This policy relates to the release of information pertaining to SERS business in compliance with the Pennsylvania Right-To-Know Law (RTKL), 65 P. S. §§ 66.1--66.9, Management Directive 205.36 Amended, and Management Directive 505.18 Amended. The Chief Counsel of SERS' Legal Office should be consulted in cases in which this policy does not provide sufficient guidance to reach a determination.
In promulgating this policy, the State Employees' Retirement Board (Board) is cognizant of the statutory and decisional law on the subject and the fiduciary and administrative duties it owes to the members of SERS and its obligations to the citizens of the Commonwealth of Pennsylvania (Commonwealth) to operate in an open manner. In situations where the right of the Commonwealth's citizens competes with the foregoing duties of the Board, the standards listed below shall, when appropriate, be applied.
* The release of medical records to the public shall be in compliance with state and federal laws, which protect the privacy of health care information by restricting the disclosure of records.
* As a general rule, the disclosure of information that will be detrimental to SERS' investments shall be protected if disclosure would breach the fiduciary responsibility set forth in 71 Pa.C.S. § 5931.
* Disclosure of nonpublic information in response to court orders and subpoenas shall not result in disciplinary action.
* The names and home addresses of any active members, vestees or annuitants who are law enforcement officers, enforcement officers or psychiatric security aides (as defined by 71 Pa.C.S. § 5102), members of the judiciary (as defined by 71 Pa.C.S. § 5102), prison personnel employed by the Pennsylvania Department of Corrections, officers employed by the Pennsylvania Board of Probation and Parole and similarly-situated members shall not be released to the public because disclosure may impair such members' personal security.
Consistent with this policy, SERS may, from time to time, make available on its web site (www.sers. state.pa.us) certain financial and investment information to facilitate access to such information and reduce time delays and processing efforts associated with formal written RTKL Requests.
II. DEFINITIONS
Business Day--Any Monday, Tuesday, Wednesday, Thursday or Friday, except those days when SERS Central Office in Harrisburg, Pennsylvania is closed for all or part of a day due to a state holiday; pursuant to Management Directive 530.17, Partial and Full Day Closings of State Offices, or Management Directive 505.7, Personnel Rules, Section 8.7, due to severe weather (such as blizzard or ice storm); due to natural or other disaster; or due to the request or direction of local, state or federal law enforcement agencies or officials.
Deemed Denied--A RTKL Request is Deemed Denied if one of the following conditions occurs, subject to extension agreed to by the Requester: (i) SERS fails to respond within the initial 10 Business Day period after receiving a RTKL Request; (ii) SERS extends the 10 Business Day period by up to 30 calendar days, but then fails to respond by the end of that extended period; or (iii) SERS notifies the Requester that it requires additional time to issue or respond in excess of the permitted 30 calendar day period.
Exceptions--A written document filed with the RTKL Exceptions Official by a Requester challenging the RTKL Official's denial or a deemed denial of the Requester's RTKL Request.
Mailing Date--The date (1) affixed to a Response from the RTKL Official to a RTKL Request, which is to be the date the Response is deposited in the United States Mail, (2) affixed to a final determination from the RTKL Exceptions Official, which is to be the date the final determination is deposited in the United States Mail, (3) stamped by the United States Post Office on the envelope transmitting the Exceptions filed by a Requester, or (4) Exceptions are received by the Exceptions Official if they are hand delivered or sent via facsimile.
Public Record--Any document that satisfies the general definition of Public Record set forth in the RTKL and does not fall within any of the exceptions set forth therein. The general definition consists of two parts: (i) ''[a]ny account, voucher, or contract dealing with the receipt or disbursement of funds by [SERS], or its acquisition, use or disposal of services or of supplies, materials, equipment or other property,'' and (ii) ''any minute, order or decision by [SERS] fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons.'' 65 P. S. § 66.1(2). The exceptions to this definition are (i) any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by SERS in the performance of its official duties or (ii) any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statutory law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or state or municipal authorities of federal funds, excepting therefrom, however, the record of any conviction for any criminal act.
Records Custodian--Any person having custody, possession or control of a record.
Redaction--The eradication of a portion of a record by any means while retaining the remainder.
Requester--A person who is a resident of the Commonwealth and submits a RTKL Request.
Response--SERS' reply to a RTKL Request made pursuant to the RTKL. A Response may be (i) the act of providing the Requester with access to a record, (ii) SERS' written notice granting, denying or partially granting and partially denying access to a record, or (iii) an interim Response which extends the time for SERS' final Response as discussed later herein. A Response denying a RTKL Request in whole or in part must list all of the specific reasons relied on for denying such RTKL Request and must include one or more citations of supporting authority. Inaction by SERS is not a Response, even when it results in a RTKL Request being Deemed Denied.
RTKL Counsel--Any attorney designated by the Chief Counsel of SERS' Legal Office to advise the RTKL Official and to represent the RTKL Official in Exceptions proceedings.
RTKL Exceptions Counsel--Any attorney designated by the Chief Counsel of SERS' Legal Office to advise the RTKL Exceptions Official.
RTKL Exceptions Official--Any official or employee designated by the Board or, if authorized by the Board, the Executive Director to consider Exceptions, conduct hearings, as appropriate, and issue final determinations (which shall constitute SERS' final determinations) resolving those Exceptions. The Board or, if authorized by the Board, the Executive Director may designate a chief RTKL Exceptions Official and one or more individuals as associate RTKL Exceptions Officials.
RTKL Official--Any official or employee designated by the Board or, if authorized by the Board, the Executive Director to receive and respond to RTKL Requests. The Board or, if authorized by the Board, the Executive Director may designate a chief RTKL Official and one or more individuals as assistant RTKL Officials.
RTKL Request--A written request invoking the RTKL submitted to the RTKL Official asking for access to a record.
III. FORM OF RTKL REQUEST
All RTKL Requests must:
* Be submitted in writing;
* State the name and address of the Requester;
* Set forth the address to which the Response should be addressed; and
* Identify or describe the records sought with sufficient specificity to enable SERS to ascertain which records are being requested.
* NOTE: SERS will not accept RTKL Requests submitted via e-mail.
All RTKL Requests must be submitted in writing via United States mail, facsimile or hand delivery to the RTKL Official and be properly addressed as follows:
Mail: SERS Right-to-Know Law Official
P. O. Box 1147
Harrisburg, PA 17108-1147
Facsimile: SERS Right-to-Know Law Official
(717) 783-7300
Hand delivery: SERS Right-to-Know Law Official
30 North Third Street,
1st Floor Receptionist
Harrisburg, PA
For purposes of this policy, SERS' business hours are from 8:30 a.m. to 4:00 p.m. on any Business Day.
IV. WHO HAS THE RIGHT TO KNOW
The RTKL provides that, unless otherwise provided by law, a Public Record shall be accessible for inspection and duplication by a Requester in accordance with the RTKL. SERS may, at its discretion, require a requesting party to produce proper identification to establish that the party is a resident of the Commonwealth.
Not uncommonly, SERS receives requests for records from parties that are not residents of the Commonwealth, especially from businesses that may use the requested records for commercial purposes. In such cases, SERS may exercise discretion in either declining to comply with the request or providing the records as a courtesy to the requesting party. Among the factors that may be considered by SERS are the administrative burdens of compliance, the benefits to be derived by SERS (e.g., cooperating in a survey that would be of interest to SERS), the risk that the information could be used to SERS' or a member's detriment, and other considerations that may be relevant to the particular request at hand. Voluntary disclosure by SERS shall not require SERS to provide the same records to others or to provide future records of the same type to anyone.
V. PROCEDURE FOR RESPONDING TO RTKL REQUESTS
SERS shall respond only to written RTKL Requests delivered via United States mail, facsimile or hand delivery. All RTKL Requests must be directed to the RTKL Official. The time limitations set forth herein do not take effect until the RTKL Official receives the RTKL Request. (Any RTKL Request received by SERS after the close of SERS' business hours, as set forth above, shall be deemed received on the following Business Day.) Upon receipt of a RTKL Request, the RTKL Official will take the following actions:
* Date stamp the RTKL Request;
* Assign a tracking number to the RTKL Request;
* Record the RTKL Request in the system used by SERS for tracking RTKL Requests;
* Compute the day on which the 10 Business Day period will expire and make a notation of that date on the first page of the RTKL Request (the day that a RTKL Request is received or deemed received is not counted for this purpose);
* Make an electronic or paper copy of the RTKL Request, including all documents submitted with it and the envelope, if any, in which it came;
* Create a file for the retention of the original RTKL Request, a copy of the Response, a record of verbal or written communications with the Requester and a copy of other communications.
The RTKL Official shall be responsible for the issuance of interim and final Responses to all RTKL requests. Upon receipt of a RTKL Request, the RTKL Official shall render a final Response within 10 Business Days from the date the RTKL Request is received, unless an interim Response is warranted and issued within that time.
An interim Response may be sent on or before the last day of the 10 Business Day period to extend the period for a final Response. Such interim Response must notify the Requester that the RTKL Request is being reviewed, must state a reasonable date that a final Response is expected to be provided, and must set forth one of the following reasons justifying the need for additional time:
* The RTKL Request requires Redaction of a Public Record;
* The RTKL Request requires the retrieval of a record stored in a remote location;
* A final Response within the 10 Business Day period cannot be accomplished due to bona fide and specified staffing limitations;
* A legal review is necessary to determine if a record is a Public Record subject to access under the RTKL;
* The Requester has not complied with SERS' policies regarding access to Public Records; or
* The anticipated cost of complying with the RTKL Request exceeds one hundred dollars ($100) and the Requester has not prepaid such amount. If SERS requires prepayment, the time for issuance of a final Response shall be tolled from the time the demand for prepayment is made until such time as payment is actually received.
If an interim Response is issued, then a final Response should be sent within 30 calendar days from the end of the 10 Business Day period. Failure to comply with either the 10 Business Day or the 30 calendar day time limit will result in the RTKL Request being Deemed Denied.
* NOTE: If the anticipated cost of complying with the RTKL Request exceeds $100 and the Requester does not pay such amount within 30 calendar days after he/she is informed to do so by an interim Response, the RTKL Request will be considered withdrawn.
The RTKL Official shall conduct an initial review of each RTKL Request according to the following intake procedure:
* Review the RTKL Request to determine whether a basis exists for rejecting the RTKL Request, in whole or in part, without further consideration, including but not limited to the following:
A. The requesting party is not a resident of the Commonwealth;
B. Lack of specificity;
C. The requested records are not within the RTKL's definition of Public Record; or
D. The RTKL Official has personal knowledge that the requested records are not in the possession or control of SERS.
* Determine whether the RTKL Request must be granted, in whole or in part, without further consideration;
* Draft any Response denying or granting access to the identified records as necessary;
* Review any questions with RTKL Counsel as necessary;
* Draft written instructions to Records Custodians regarding compliance with the RTKL Request as necessary; and
* Determine if the anticipated cost of complying with the RTKL Request will exceed $100 and if prepayment will be required and, if so, present the Requester with a demand for prepayment.
If the RTKL Official does not identify a basis for denying the RTKL Request in its entirety without further consideration, the RTKL Official shall forward the RTKL Request or relevant portions thereof to potential Records Custodians. Once the RTKL Official forwards the RTKL Request or relevant portions thereof, it shall be the responsibility of each such potential Records Custodian to conduct a good faith investigation to determine if he/she has custody of any of the requested records. It shall be the responsibility of each such potential Records Custodian to promptly inform the RTKL Official whether he/she has possession of any of the requested records and, if so, the estimated cost of providing such records.
If any such potential Records Custodian knows or believes that another official, employee or agent of SERS has possession of the requested records, he/she shall forward the RTKL Request to that person and shall inform the RTKL Official of this immediately.
The RTKL Official shall issue a final Response within the aforementioned time periods, which Response shall specify that the RTKL Request is (1) granted, (2) denied, or (3) granted in part and denied in part. If a RTKL Request is denied, in whole or in part, the RTKL Official must specify the following in the Response:
* A description of the records requested;
* The specific reasons for the denial, including a citation of supporting legal authority (if based on a determination that a record is not a Public Record, the specific reasons for such determination shall be included);
* The typed or printed name, title, business address, business telephone number, and signature of the RTKL Official on whose authority the denial is issued;
* The Mailing Date of the Response;
* The procedure to appeal the denial of access under the RTKL.
* NOTE: SERS is not required to create a Public Record that does not already exist, nor is SERS required to compile, maintain, format or organize a Public Record in a manner that the agency does not currently do so.
VI. PHYSICAL ACCESS TO PUBLIC RECORDS
The Public Records of SERS shall be accessible for inspection and duplication by any Requester during the hours of 8:30 a.m. to 4:00 p.m. on any Business Day. A Requester wishing to inspect SERS' Public Records on site shall provide a written request to the RTKL Official who shall determine on an ad hoc basis the time and place where such Public Records shall be made available to a Requester and the manner of duplication that shall be available.
SERS may maintain certain Public Records in electronic form. For those who wish to inspect a paper copy of portions of such Public Records, SERS shall print the portions of such Public Records that the Requester wishes to see. If the Requester wants to keep the pages from such printed portions or to receive the record in electronic form, SERS will charge a fee.
VII. EXCEPTIONS PROCEDURE
All Exceptions shall be directed to the RTKL Exceptions Official at the address and in the same manner for delivering RTKL Requests specified in Article III of this policy. A Requester shall have 15 Business Days from the Mailing Date of the written denial or 15 calendar days from the date a RTKL Request is Deemed Denied to file Exceptions with the RTKL Exceptions Official. Exceptions are deemed to be filed the date they are postmarked if properly addressed and submitted by United States mail or the date they are received by the RTKL Exceptions Official if submitted through any other means. The applicable aforementioned date shall also constitute the Mailing Date of Exceptions. Any reasons for Exceptions not stated in writing within the 15 Business Day or 15 calendar day period, as applicable, are deemed to be waived and shall be disregarded by SERS.
* NOTE: SERS will not accept RTKL Exceptions by e-mail.
All RTKL Exceptions filed with SERS must:
* Be postmarked if sent by mail or received by the RTKL Exceptions Official within the aforementioned time period;
* State the reasons upon which the Requester asserts that the record is a Public Record;
* Address the reasons stated by the RTKL Official for denying the RTKL Request (unless the RTKL Request was Deemed Denied); and
* Be correctly addressed or delivered to the RTKL Exceptions Official.
All RTKL Exceptions must be submitted in writing via United States mail, facsimile or hand delivery to the RTKL Exceptions Official and addressed as follows:
Mail: SERS Right-to-Know Law Exceptions Official
P. O. Box 1147
Harrisburg, PA 17108-1147
Facsimile: SERS Right-to-Know Law Exceptions Official
(717) 783-7300
Hand delivery: SERS Right-to-Know Law Exceptions Official
30 North Third Street,
1st Floor Receptionist
Harrisburg, PA
Any Exceptions that do not meet the above-described requirements shall be deemed defective and will not extend the time limit to file Exceptions.
* NOTE: A Requester shall not be permitted to file Exceptions to the decision of the RTKL Official to send an interim Response within the 10 Business Day time period.
Upon receipt of Exceptions, the RTKL Exceptions Official shall take the following actions:
* Date stamp the exceptions letter;
* Retain the envelope and any documents that accompany the exceptions letter;
* Send a copy of the exceptions letter and accompanying documents to the RTKL Official, the RTKL Counsel and the RTKL Exceptions Counsel;
* Schedule and conduct a hearing, if a hearing is ordered by the RTKL Exceptions Official (the RTKL Exceptions Official may request that the Requester and the RTKL Official make written submissions, whether in connection with a hearing or otherwise);
* Obtain the services of a court reporter or other method of recording testimony, if a hearing is scheduled;
* Docket the receipt of evidence and other submittals;
* Maintain a record of the final determination by the RTKL Exceptions Official; and
* Prepare an official record if an appeal is filed in the Commonwealth Court.
If Exceptions are to be resolved without a hearing, the General Rules of Administrative Practice and Procedure, set forth at 1 Pa. Code, Chapters 31, 33, and 35, shall not apply.
The RTKL Official shall have 15 calendar days from the Mailing Date of the Exceptions to file ''Reply Exceptions'' with the RTKL Exceptions Official. The Reply Exceptions must:
* Be in writing;
* Be mailed or delivered to the RTKL Exceptions Official within the aforementioned time period;
* Be mailed to the Requester;
* Fully advise the Requester and the RTKL Exceptions Official as to the reasons for the RTKL Official's decision;
* Admit or deny specifically and in detail each material allegation of the Exceptions; and
* State clearly and concisely the facts and matters of law relied upon.
The RTKL Exceptions Official shall not accept any pleadings, responses or briefs from the RTKL Official or the Requester other than the original Exceptions of the Requester and the Reply Exceptions of the RTKL Official, unless a hearing is held or unless the RTKL Exceptions Official requests that the Requester and the RTKL Official make written submissions. Upon receipt of the Reply Exceptions, the RTKL Exceptions Official shall rule on any pending requests for a hearing.
The RTKL Exceptions Official shall issue the final determination of the agency within 30 calendar days of the Mailing Date of the Exceptions unless the Requester agrees otherwise.
VIII. RTKL HEARINGS
Prior to the issuance of the final determination, the Requester or the RTKL Official may request a hearing. The decision of whether to grant a hearing is solely within the discretion of the RTKL Exceptions Official and may be conditioned on a waiver of the 30 calendar day time limit. The decision of whether to grant a hearing is not appealable. The RTKL Exceptions Official may order a hearing if considered desirable, notwithstanding that neither the Requester nor the RTKL Official has requested a hearing.
If a hearing is held, the identified records shall not be made part of the hearing record. Rather, the RTKL Official shall provide a description of the document either in writing or by means of oral testimony. Unless otherwise specified by the RTKL Exceptions Official, Exceptions hearings shall be held at SERS' Central Office in Harrisburg located at 30 North Third Street, Harrisburg, Pennsylvania before the RTKL Exceptions Official or a hearing official designated by the RTKL Exceptions Official. Hearings shall be conducted pursuant to the General Rules of Administrative Practice and Procedure to the extent directed by the designated hearing official or the RTKL Exceptions Official.
IX. RIGHT TO APPEAL TO COMMONWEALTH COURT
If the RTKL Exceptions Official agrees with the RTKL Official in denying the Requester access to records, the Requester shall be entitled to appeal the final determination of SERS to Commonwealth Court within thirty (30) calendar days from the Mailing Date of SERS' final determination. Both SERS and the Requester may be subject to fines and court costs as prescribed by the RTKL.
X. NOTICE TO MEMBER
At the time SERS issues a Response to a RTKL Request for records regarding a member account, SERS may provide written notice to that member that identifies (a) the name of the Requester and (b) the information provided by SERS. For those RTKL Requests that seek records regarding the accounts of multiple members, notice may be provided by publication via the website, newsletter or any other reasonable method.
Neither members nor employers have the right to approve or disapprove a request for SERS' records. Records regarding a member may be furnished to current agency employers and former employers upon request without written notice to the member.
XI. MEMBER AUTHORIZATION FOR RELEASE OF INFORMATION
In addition to any release of records in response to a RTKL Request, any information available to a member from his/her own member file shall be released upon written authorization from such member and confirmation by SERS. Upon receiving a written authorization from a member, SERS will contact the member to confirm that the authorization is genuine prior to providing the information as directed in the member's authorization.
XII. REDACTION
SERS shall redact those portions of a record that are prohibited from disclosure and may redact those portions that otherwise are not public records. The Public Record portions of a record that may remain after such redaction shall be subject to release.
XIII. FEES
The following fees shall be applicable to all RTKL Requests:
* Photocopies--A ''photocopy'' is a single-sided copy or one side of a double-sided copy. The charge for one side of a standard 8.5" × 11" page shall be $0.15.
* Charges for other services and materials will be determined on a case-by-case basis based upon the applicable cost to SERS. These include, but are not limited to, charges for the following:
A) PC Diskette copies
B) Microfilm/microfiche and other forms of copies
C) Postage
D) Redaction (based on hourly wage and benefits)
E) User fee for printing or copying records from SERS' computers
F) Certification of copies
G) Employee time for compiling and printing requested records (based on hourly wage and benefits)
H) Employee time for compiling electronic disk of requested records (based on wage and benefits)
I) Computer time for compiling requested records
The RTKL Official, after consultation with the Executive Director, may waive fees on the basis of hardship or de minimus charges.
* NOTE: The RTKL Official may require a Requester to prepay if the fees required to fulfill the request are expected to exceed $100. If SERS requires prepayment, the time for providing the records as to which SERS has indicated it will grant access shall be tolled from the time the demand for prepayment is made until such time as payment is actually received.
A Requester who is informed that his/her RTKL Request has been granted but that prepayment is necessary due to the anticipated costs exceeding $100 shall have 30 calendar days to make payment to SERS. If SERS does not receive payment by the end of this period, SERS will consider the RTKL Request to have been withdrawn and will purge the file accordingly. Any future attempt to procure the identified records after this time must be done by initiating a new RTKL Request.
ERIC HENRY,
Secretary
[Pa.B. Doc. No. 05-1039. Filed for public inspection May 20, 2005, 9:00 a.m.]
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