NOTICES
STATE EMPLOYEES' RETIREMENT BOARD
Right-to-Know Law Policy
[33 Pa.B. 3708] I. General Policy
The 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 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 this Commonwealth to operate in an open manner. In situations where the right of this Commonwealth's citizens competes with the foregoing duties of the Board, the standards listed shall, when appropriate, be applied.
* Medical records shall not be released to the public in compliance with State and Federal laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 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 and 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 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. Hence, the active member and annuitant payroll listings maintained for public examination by the Office of Member Services shall omit the names and addresses of any active or retired members reasonably considered to be part of such protected employment categories.
Consistent with this policy, SERS may, from time to time, make available on its website (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 is closed for all or part of a day due to a State holiday; under Management Directive 530.17, Partial and Full Day Closings of State Offices, or Management Directive 505.7, Personnel Rules, 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--An RTKL request is deemed denied if one of the following conditions occurs: (i) SERS fails to respond within the initial 10 business day period after receiving a written 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 administrative appeal filed with the RTKL exceptions official by a requester challenging an RTKL official's denial or a deemed denial of an RTKL request.
Mailing date--(1) the date affixed to a response from the RTKL official, which is to be the date the response is deposited in the United States Mail; (2) the date 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) the postmark date stamped by the United States Post Office on the envelope transmitting the RTKL request or exceptions filed by a requester; or (4) the date the exceptions are received by the exceptions official if they are hand delivered or faxed.
Potential records custodian--Any person who is believed to have custody, possession, or control of a document. If this person does possess any such record, he/she is an actual records custodian.
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 document.
Redaction--The removal of a portion of a document by any means while retaining the remainder.
Requester--A natural person who is a resident of this Commonwealth and submits an RTKL request.
Response--SERS' reply to a RTKL request made under the RTKL. A response may be (i) the act of providing the requester with access to a public 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' reply as discussed later herein. A response denying an RTKL request in whole or in part must list all of the specific reasons relied on for denying the request and must include one or more citations of supporting authority. Inaction by SERS is not a response, even when it results in an 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 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. Except as otherwise directed by the Board or, if authorized by the Board, the Executive Director, the RTKL Exceptions Unit shall be the office of the chief RTKL exceptions official.
RTKL liaison--Any official or employee designated by the Board or, if authorized by the Board, the Executive Director to serve as a conduit between RTKL officials and potential records custodians and actual records custodians.
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. Except as otherwise directed by the Board or, if authorized by the Board, the Executive Director, the RTKL office shall be the office of the chief RTKL official.
RTKL request--Either (i) a written request submitted to the RTKL official asking for access to a document, a copy of a document or information purported to be in the possession of SERS; or (ii) a written request (but not exceptions or appeal) presented to SERS that invokes the RTKL.
III. Form of RTKL Request
All RTKL requests must:
* Be submitted in writing.
* Be delivered via mail, facsimile, or hand delivery.
* State the name and address of the requester.
* Set forth the address to which the response should be addressed.
* Identify or describe the records sought with sufficient specificity to enable SERS to ascertain which records are being requested.
* Agree to pay any applicable cost associated with complying with the request.
Note: SERS will not accept RTKL requests by e-mail.
All RTKL requests must be submitted in writing via 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
Harrisburg, PA 17101SERS' business hours are from 8:30 a.m. to 4 p.m. on any business day.
IV. Who Has the Right to Know
The RTKL specifically provides that ''any citizen of the Commonwealth shall have the right'' to obtain public records. The RTKL applies only to natural persons. If the requesting party is a corporation or other entity, the request may be refused on that basis, even if the corporation or other entity was created under the laws of the Commonwealth. SERS may, at its discretion, require a requesting party to produce proper identification to establish that the party is a resident of this Commonwealth.
Not uncommonly, however, SERS receives requests from parties domiciled outside of this Commonwealth, especially from businesses that may use the requested information 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 should be considered 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 RTKL Requests
SERS shall respond only to written RTKL requests delivered by 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. Upon receipt of an RTKL request, the RTKL official will take the following actions:
* Date stamp the request.
* Assign a tracking number.
* Note the day on which the 10 business day period will expire and make a notation of that date on the first page of the request.
* Make an electronic or paper copy of the request, including all documents submitted with it and the envelope, if any, in which it came.
* Create an official file for the retention of the original request.
* Record the request in the system used by SERS for tracking RTKL requests.
The RTKL official shall be responsible for the issuance of interim and final responses to all RTKL requests. Upon receipt of an 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. For purposes of determining the end of the 10 business day period, the day that a RTKL request is received is not counted.
An interim response may be sent on or before the last day of the 10 business day period and must set forth one of the following reasons justifying the need for additional time:
* The request requires redaction of a public record.
* The request requires the retrieval of a public record stored in a remote location.
* A timely response to the request 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.
* The anticipated cost of complying with the RTKL request exceeds $100 and the requester has not prepaid such amount.
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 exceeds $100 and the requester does not pay the amount within 30 calendar days after he/she is informed to do so by an interim response, the RTKL request will automatically be denied.
The RTKL official shall conduct an initial review of all RTKL requests according to the following intake procedure:
* Review the request for obvious defects, including but not limited to the following:
A. Ambiguity.
B. Request made by a nonresident.
C. Identified records are obviously not public records.
D. Identified records obviously fall within exceptions of public records.
E. The RTKL official has personal knowledge that the identified record does not exist.
F. The RTKL official has personal knowledge that the identified record is not in possession or control of SERS.
* Determine whether the request can be granted without further consideration.
* Draft any responses denying or granting access to the identified documents as necessary.
* Review any questions with RTKL counsel as necessary.
* Draft written instructions to records custodians regarding compliance with the request as necessary.
* Determine if the anticipated cost will exceed $100 and prepayment will be required; if so, present requester with a demand for payment.
If the RTKL official does not see an obvious reason to deny the RTKL request, the RTKL official or RTKL liaisons as shall be requested to do so by the RTKL official, shall forward the RTKL request or relevant portions thereof to potential records custodians. Once the RTKL official, or RTKL liaison, forwards the RTKL request or relevant portions thereof, it shall be the responsibility of each potential records custodian to conduct a good faith investigation to determine if he/she has custody of the identified record. If he/she does possess the identified record, then he/she is an actual records custodian. It shall be the responsibility of each actual records custodian to promptly inform the RTKL official that he/she has possession of the identified record and the estimated cost of providing the record.
If a potential records custodian does not have custody of the identified record, then he/she shall inform the RTKL official of this fact as soon as possible. If the potential records custodian knows or believes that another employee of SERS has possession of the identified record, he/she shall inform the RTKL official of this immediately.
The RTKL official shall issue a final response within the aforementioned time specifications, which response shall specify that the RTKL request is (1) granted, (2) denied or (3) denied in part/granted in part. If a request is denied, in whole or in part, the RTKL official must specify the following in the response:
* The name, business address, business telephone number and signature of the employee on whose authority the denial is issued.
* The mailing date of the response.
* The specific reasons relied upon by the RTKL official for the denial.
* Any relevant citations of supporting authority.
* A notice informing the requester of his/her right to file exceptions with SERS.
* The name and mailing address of the RTKL exceptions official.
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 by any requester during the hours of 8:30 a.m. to 4 p.m. on any business day. A requester wishing to inspect SERS' public records onsite shall provide a written request to the RTKL official who shall determine on an ad hoc basis the time and place where records shall be made available to a requester and the manner of duplication that shall be available.
SERS will maintain an electronic copy of the public portion of its member lists and, at its discretion, copies of other public records at the Harrisburg Office. For those who wish to inspect a paper copy of the public portion of the member lists or other available public records, SERS (at no cost) will print the specific portions of the public portion of the member lists or other available public records that the requestor wishes to see. If the requestor wants to keep the pages or to receive a copy of the relevant computer discs (CDs), SERS will charge a fee. Before SERS prints any pages or makes a copy of any CDs, SERS will advise the requestor of the fee to keep the printed pages or to receive the CDs.
Note: Requesters will be charged a fee for printing or copying records from SERS' computers.
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 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 on that same day 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 all grounds upon which the requester asserts that the record is a public record.
* Address the grounds stated by the RTKL official for denying the RTKL request (unless the request was deemed denied).
* Be correctly addressed or delivered to the RTKL exceptions official.
All RTKL exceptions must be submitted in writing by mail, facsimile, or hand delivery to the RTKL exceptions official and properly 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
Harrisburg, PA 17101Exceptions that do not meet the previously 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.
* Retain the envelope and any other documents that accompany the exceptions.
* Send a copy of the exceptions 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.
* Obtain the services of a court reporter if considered desirable by the RTKL exceptions official.
* Docket the receipt of evidence and other submittals.
* Maintain a record of SERS' final determination.
* Prepare an official record in case of appeal to Commonwealth Court.
If exceptions are to be resolved without a hearing, the General Rules of Administrative Practice and Procedure, as 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 a ''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 and/or deny specifically and in detail each material allegation of the exceptions.
* 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. 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. All exceptions hearings shall be held at SERS Central Office, 30 North Third Street, Harrisburg, PA 17101 before a RTKL exceptions official. Hearings shall be conducted under 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 decision of SERS to Commonwealth Court within 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 public information regarding a member account, SERS may provide written notice to the individual member that identifies (a) the name of the requester and (b) the information provided by SERS. For those RTKL requests that seek public information regarding the accounts of multiple members, notice may be provided by publication through the website, newsletter or any other reasonable method.
Neither members nor employers have the right to approve or disapprove a request for SERS' public records. All RTKL requests for information on members should be retained in a separate file. Information regarding a member's status will be furnished to current agency employers and former employers upon request without written notice to the member.
XI. Member Authorization for Release of Information
Any information available to a member from his/her own member file should be released upon written authorization from the member and confirmation by SERS. Upon receiving a written authorization from a member, SERS will contact the member to confirm that the authorization was genuine prior to providing the information as directed in the member's authorization.
XII. Redaction
SERS shall redact those portions of a public record that are prohibited from disclosure and may redact those portions that are exempt from disclosure. The segregable portions of a public record that may remain after redaction of prohibited or exempt portions 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" x 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. This includes, but is not limited to, charges for the following:
A) PC Diskettes copies.
B) Microfilm/microfiche copies.
C) Postage.
D) Redaction.
E) User fee for printing or copying records from SERS' computers.
F) Certification of copies.
G) Employee time of records custodians for printing requested records (based on hourly wage and benefits).
H) Employee time of records custodians for compiling electronic disk of requested records (based on hourly wage and benefits).
I) Billable computer time for compiling requested records.
The RTKL official shall, in all cases, inform a requester of the anticipated charges, to the extent practicable, prior to delivering the public record. 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.
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 hear from the requester or 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.
JOHN BROSIUS,
Secretary
[Pa.B. Doc. No. 03-1487. Filed for public inspection July 25, 2003, 9:00 a.m.]
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