NOTICES
Procedures Applicable to Right-to-Know Request
[39 Pa.B. 377]
[Saturday, January 17, 2009]This written policy identifies the procedures for requesting public records from the Department of Health (Agency) under Pennsylvania's Right-to-Know-Law (RTKL) (65 P. S. §§ 67.101--67.3104). This policy supplements Management Directive 205.36.
I. REQUESTS
A. A written request to the Agency under the RTKL must:
1. Be addressed to the Agency Open Records Officer (AORO):
Agency Open Records Officer
Office of Administration
Department of Health
8th Floor West
Health and Welfare Building
Harrisburg, PA 17120
E-mail address: PADOHRTK@state.pa.us
Facsimile number: (717) 772-69592. Identify a name and a mailing address for the RTKL response;
3. State that the request is being made under to the RTKL;
4. Be submitted in person, by letter, e-mail or facsimile;
5. Be sufficiently specific to enable the Agency to ascertain which records are being requested;
6. Be from a person that is a legal resident of the United States.
B. A verbal RTKL request submitted to the agency shall be directed to the appropriate program office and shall be handled by that office as a routine request for records or information, and not as a RTKL request.
C. RTKL requests may be on the form available at the web site of the Office of Open Records at: http://openrecords.state.pa.us.
D. The regular business hours of the RTKL Office are 8:30 a.m. to 5 p.m., Monday through Friday. Any RTKL request received by the RTKL Office after the close of regular business hours shall be deemed to have been received by that office on the following business day.
E. A RTKL request may be denied if it does not identify the records requested with sufficient specificity. The AORO may contact the requester to obtain clarification or additional information to aid the AORO in responding to the request. The request should contain a telephone number, fax number or e-mail address where the AORO may reach the requester.
F. RTKL requests received by the Agency will be considered ''public record'' information by the Agency and such requests may be made available for public access through its web site.
II. RESPONSES
The AORO may respond by: 1) providing access in the offices of the Agency; 2) sending a copy to the requester; or 3) notifying the requester that the record is available through publicly accessible electronic means. Each of these options is a ''response'' for purposes of the RTKL, as is the Agency's written notice to the requester granting, denying or partially granting and partially denying access to a record. The Agency may send written responses to requesters by United States mail, by hand (in person or by delivery service), by facsimile or by e-mail.
Unless a longer period of time is needed and communicated to the requester by an ''interim response'' (as discussed in paragraph A as follows), the RTKL requires that the Agency respond to a RTKL request within 5 business days. For purposes of determining the end of the 5 business day period, the day that a RTKL request is received is not counted. The first day of the 5 business day period is the Agency's next business day.
A business day does not include a Saturday or Sunday; a day when the offices of the agency are closed for all or part of a day due to a State holiday; partial and full day closing of State offices under management directives; a day when the offices of the agency are closed due to a natural disaster; or a day when the offices of the Agency are closed at the request or direction of a local, State, or Federal law enforcement agency or official.
A. Interim Responses
The Agency will provide a final response to a RTKL request within 5 business days unless one or more specific conditions are satisfied and the AORO gives the requester written notice that additional time will be required. That notice is referred to as an ''interim response.''
The AORO may send an interim response if any of the following apply:
1. The RTKL request requires redaction of a public record;
2. The RTKL request requires retrieval of a record from a remote location;
3. A response within the 5 business day period cannot be accomplished due to bona fide; staffing limitations, which limitations must be specified in the interim response;
4. A legal review is necessary to determine whether the record requested is subject to access under the RTKL;
5. The requester has not complied with the Agency's policies regarding access to public records;
6. The requester must prepay fees which are required to fulfill the RTKL request and which are estimated to exceed $100;
7. The extent or nature of the request precludes a response within the required time period.
An interim response will: 1) be sent to the requester on or before the last day of the 5 business day period; 2) state the reason for the interim response; 3) give an estimate of fees, if applicable, to make records available; and 4) specify a date that a final response is expected to be provided. If the date specified in the interim response for a final response is in excess of 30 days from the end of the 5 business day period, the request will be deemed denied unless the requester has agreed in writing to the date specified.
B. Final Responses
There are three possible final responses. The request may be: 1) granted; 2) denied; or 3) granted in part and denied in part. The failure to make a timely response is deemed to be a denial.
If a request is denied in whole or in part, the Agency will issue a final written response that will include an explanation of the procedure for the requester to appeal, if the requester chooses to do so. The written denial will also set forth the specific reasons for the denial, including a citation of supporting legal authority.
C. Redaction
The Agency will not deny access to a record based upon the fact that portions of the record are not subject to disclosure. The Agency will redact the portions that are not subject to disclosure and produce the portions that are subject to disclosure.
D. Access
The Agency may provide a requester with access to a public record: 1) by providing access in the offices of the Agency; 2) by sending a copy to the requester; or 3) by notifying the requester that the record is available through publicly accessible electronic means.
The Agency has the discretion to determine the buildings and rooms that will be used to provide a requester with access to the Agency's public records. The selection of buildings and rooms for access to the Agency's public records is a matter within the discretion of the AORO.
The Agency will provide a public record to a requester in the medium requested if the record exists in that medium. Otherwise, the public record must be provided in the medium in which it exists. If a public record only exists in one medium, the Agency is not required to convert that public record to another medium, except that if the public record is only available in an electronic form, the Agency must print it out on paper if the requester so requests.
The Agency is not required to create a public record that does not already exist, nor is it required to compile, maintain, format or organize a public record in a manner in which the Agency does not currently do so.
E. Duplication of Public Records
The Agency may either make copies itself or, in its discretion, allow the requester to bring the necessary equipment to make its own copies. The Agency may make its duplication equipment available to a requester but require that the requester operate the equipment; assign Agency staff to make the duplications; or contract for duplication services and require the requester to pay the applicable rate.
III. APPEALS
When a request is denied or deemed denied, whether in whole or in part, the requester may file an appeal with the Office of Open Records, where it will be assigned to an Appeals Officer. This appeal must be filed within 15 business days of the denial or deemed denial. The appeal must state the grounds upon which the requester asserts that the record is public, and must address any grounds stated by the Agency for delaying or denying the request to challenge the denial on that basis. The appeal shall be sent to the Commonwealth Office of Open Records, Commonwealth Keystone Building, 400 North Street, Plaza Level, Harrisburg, PA 17120-0225, (717) 346-9903, openrecords@state.pa.us.
A person other than the Agency or the requester, with a direct interest in the record that is subject to an appeal, has 15 days following actual knowledge of the appeal, but no later than the date the Appeals Officer issues an order, to file a written request to provide information or to appear before the Appeals Officer in support of the requester's or the Agency's position in the appeal. The Appeals Officer may, but needs not, grant the request.
For further information on appeals, it is suggested that the requester review the web site of the Office of Open Records.
IV. FEES
Applicable fees to be charged by the Agency under the RTKL are as follows:
A. Fees Determined by the Office of Open Records
Under the RTKL, the Office of Open Records has the authority to establish fees for duplication and for enhanced electronic access and has published acceptable fee limits for both at its web site at http://openrecords.state.pa.us. Accordingly, the Agency will charge a maximum of $.25 per page for duplication. The Agency currently does not have a fee for enhanced electronic access.
B. Specialized Fees
1. The Agency will charge $1 per copy for certified copies, when requested by the requester.
2. The Agency will charge the actual cost for postage, facsimile/microfiche or other media, as well as for specialized documents.
3. Special rules apply to fees for transcripts of administrative proceedings:
(i) Prior to an adjudication becoming ''final, binding and nonappealable,'' transcripts may be requested through the Agency, however the stenographer or court reporter is permitted to charge the regular fee for this service.
(ii) Following an adjudication becoming ''final, binding and nonappealable,'' a request for the transcript will be treated like any other request for a record and the usual duplication fee of up to $.25 per page will be charged.
C. Reasonable and Necessarily Incurred Costs
The Agency has the authority under the RTKL to charge requesters reasonable fees for necessarily incurred costs. The Agency will determine and charge such fees on a case by case basis.
D. General
No charge shall be made for agency or legal review of the record to see whether the requested records are public records that are subject to production.
If the estimated fees that are required to fulfill the RTKL request exceed $100, it may be necessary for the requester to pay the estimated amount in advance, either by certified check or by ordinary check, which must first have cleared to be considered received by the Agency. The demand for prepayment may specify a reasonable period of time in which the requester must make such prepayment. If the requester fails to make prepayment within the specified time, the Agency is not required to produce the records requested.
Applicable fees must be paid to receive access to the record requested. 65 P. S. § 67.901.
Persons with disabilities who require an alternative format of this notice (for example, large print, audiotape, Braille) should contact Patty Sheaffer in the Office of Administration at (717) 705-6740 or for speech and/or hearing impaired persons at V/TT (717) 783-6514 or the Pennsylvania AT&T Relay Service at (800) 654-5984.
EVERETTE JAMES,
Acting Secretary
[Pa.B. Doc. No. 09-85. Filed for public inspection January 16, 2009, 9:00 a.m.]
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