Township of Lower Southampton, PA Part 5 Right-To-Know Policy

§ 1-501 Definitions.

[Res. 2008-12, 4/23/2008, § 1[1]]

Unless otherwise noted, capitalized terms used herein shall have the meaning given to them in § 102 of the Right-to-Know Law, as amended by Act 3 of 2008.[2]

[1] Editor's Note: The introductory provisions of Res. 2008-12, 4/23/2008, which adopted this part, provided the following "Overview": "Act 3 of 2008, adopting amendments to Pennsylvania's Right-to-Know Law, 65 P.S. §§ 66.1 to 66.9, was enacted on February 14, 2008. Certain amendments became effective immediately (definitions of terms, including the definition of "record" and "public record," as well as the creation of a new state Office of Open Records), while others shall become effective on July 1, 2008, (pertaining to state-related institutions and state contract information). The remaining amendments shall become effective on January 1, 2009. The amendments permit an agency to promulgate regulations and policies necessary to implement the Right-to-Know Law, as amended. The following policy establishes the procedure by which the Township of Lower Southampton ("municipality") will address requests made to it for records under the Right-to-Know Law. In accordance with § 504(b) of Act 3, the following policy shall be posted on the municipality's website, together with contact information for the newly designated Open Records Officer and the state Office of Open Records and the municipality's form to be used to submit a request for a public record. Upon release by the Office of Open Records of a uniform request form, as required by § 505(a) of Act 3, the uniform form shall be made available on the municipality's website as well as through the Open Records Officer appointed by the municipality.

[2] Editor's Note: Enacted 2008, Feb. 14, P.L. 6, No. 3, § 101, the Right-To-Know Law, 65 P.S. § 67.101 et seq., also repealed the former Right To Know Act, 65 P.S. § 66.1 et seq.

§ 1-502 Designation of Open Records Officer.

[Res. 2008-12, 4/23/2008, § 2]

The municipality hereby creates the position of Open Records Officer, who shall receive requests submitted to the municipality pursuant to this policy; direct requests to other appropriate persons within the municipality or to appropriate persons within any other agency, if applicable; track the municipality's progress in responding to requests for records; and issue interim and final responses pursuant to this policy. Any employee of the municipality who receives a request for a record shall forward such request to the Open Records Officer.

§ 1-503 Requests for records.

[Res. 2008-12, 4/23/2008, § 3]

1. Any request made to the municipality under the Right-to-Know Law shall be in writing and shall meet the following procedural requirements:

A. Address to the Open Records Officer of the municipality.

B. Identify the requester by name.

C. Provide a return mailing address as well as a daytime telephone number of the requester.

D. State that the request is being made under the Right-to-Know Law.

E. Identify the record or records requested with sufficient specificity to enable the municipality to determine which record is being requested.

F. State whether the requester is a legal resident of the United States.

G. Include the requester's signature or, if the requester is an agency, include the signature of a person authorized to make the request on behalf of the agency.

Any failure by a requester to provide the information set forth herein shall render the request administratively incomplete. The municipality shall not be required to respond to an administratively incomplete request.

2. Right-to-know requests must be sent or delivered to the municipality by one of the following approved methods of transmission: (A) United States mail, (B) courier, (C) express delivery, (D) overnight delivery, (E) hand-delivery, (F) e-mail, or (G) facsimile. No other form of transmission is permitted.

3. The municipality will not accept any verbal requests for records.

4. Right-to-know requests must be sent or delivered to:

Open Records Officer Lower Southampton Township 1500 Desire Avenue Feasterville, PA 19053

5. Right-to-know requests received by the municipality after the close of regular business hours shall be deemed to have been received by the municipality on the following regular business day. This shall include any facsimile transmission received after regular business hours. The regular business hours of the municipality are 9:00 a.m. to 5:00 p.m.

§ 1-504 Municipality's response to request for records - procedural.

[Res. 2008-12, 4/23/2008, § 4]

1. The municipality's response to a request for records shall be administered by the designated Open Records Officer, who shall determine whether the requested record is a public record.

2. Upon receipt of a request for a record the Open Records Officer shall:

A. Note the date of receipt on the written request.

B. Compute the day on which the five-day response period, required pursuant to § 901 of Act 3,[1] will expire, and make a notation of that date on the written request.

[1] Editor's Note: See 65 P.S. § 67.901.

C. Maintain an electronic or paper copy of a written request, including all documents submitted with the request, until a response is issued. If the request is denied, the written request shall be maintained for 30 days or, if an appeal is filed, until a final determination is issued pursuant to § 1101(b) of Act 3, or until the appeal is deemed denied.

D. Determine whether a fee is applicable to the request and, if so, whether the fee has been submitted with the request.

3. A right-to-know request may be denied if it does not identify the records requested with sufficient specificity.

4. In conducting an initial review of a right-to-know request, the Open Records Officer may, but is not required to, contact the requester to obtain additional information to assist the municipality in responding to the request.

5. The Open Records Officer shall prepare a written response to a right-to-know request within five business days after receiving the request. A business day does not include Saturday, Sunday or a federal or state or municipality holiday. A business day also does not include any day when the municipality offices are closed pursuant to a decision by management, an unanticipated event such as a natural disaster, or at the direction of a local, state or federal agency or official. For purposes of determining the end of the five-business-day period, the day a right-to-know request is deemed received is not included in that determination. For example, if a right-to-know request is received on a Monday, the municipality's response is not due until the following Monday, assuming there is no intervening holiday or closure of the municipality offices.

6. If the Open Records Officer determines that any of the following is applicable to a request, he or she shall send written notice (for purposes of this section, the "notice") to the requester within five business days of receipt of the request, specifying one of the following with respect to the request:

A. The request requires redaction of a record in accordance with § 706 of Act 3.[2]

[2] Editor's Note: See 65 P.S. § 67.706.

B. The request requires the retrieval of a record stored in a remote location.

C. A timely response to the request for access cannot be accomplished due to bona fide and specified staffing limitations.

D. A legal review is necessary to determine whether the record is a public record subject to access under Act 3.

E. The requester has not complied with the municipality's policy for Right-To-Know Law requests.

F. The requester refuses to pay applicable fees authorized by Act 3.

G. The extent or nature of the request precludes a response within the required time period.

The notice required under this section shall advise the requester that the request is being reviewed, state the reason for review, specify a reasonable date by which a response will be provided, and estimate any applicable fees for provision of the record. If the date that a response is expected is more than 30 days following the five-day notice referenced herein, the request shall be deemed denied, unless the requester agrees in writing to an extension of the expected date specified in the notice. If after the requester grants an extension, the municipality does not issue a response by the date specified in such extension, the request shall be deemed denied on the day following the date specified in such extension.

7. If the Open Records Officer determines that a record is available through publicly accessible electronic means, he or she may so notify the requester or may provide access to the record electronically. Upon such notification, the requester may, within 30 days of receipt of such notification, submit a written request to the Open Records Officer to have the record converted to paper. Upon receipt of such request, the Open Records Officer shall provide access to the record in printed form within five business days of such request.

8. If the Open Records Officer determines that a public record may be subject to redaction pursuant to § 706 of the Act, he or she shall follow the procedures set forth in § 706.[3]

[3] Editor's Note: See 65 P.S. § 67.706.

§ 1-505 Municipality's response to request for records - substantive.

[Res. 2008-12, 4/23/2008, § 5]

1. The municipality's response will either grant or deny the request for review of the requested record. The municipality may also partially deny the request, permitting review of some, but not all, of the requested record.

2. If the Open Records Officer determines that the request is appropriate, he or she will so notify the requester and schedule an appointment to review the record or records at a convenient time for both the Open Records Officer and the requester.

3. A response that constitutes a full or partial denial of a request will include the following:

A. A description of the record requested.

B. The specific reasons for the denial, including a citation of supporting legal authority. If the denial is the result of a determination that the record requested is not a public record, the specific reasons for the municipality's determination that the record is not a public record shall be included.

C. The name, business address, business telephone number and signature of the Open Records Officer.

D. Date of the response.

E. The procedure to appeal the denial of access to the requested record.

4. If the Open Records Officer does not respond to the request within five business days after a right-to-know request is docketed as having been received, a right-to-know request shall be deemed to have been denied, and the requester may file an appeal of the deemed denial.

5. The municipality shall have an additional 30 days (beyond the allotted five-business-day period) to respond to a right-to-know request under the following circumstances:

A. The request for access requires redaction of a public record.

B. The request for access requires the retrieval of a record stored in a remote location.

C. A timely response to the request for access cannot be accomplished due to bona fide and specified staffing limitations.

D. A legal review is necessary to determine whether the record is a public record subject to access.

E. The requester has not complied with the municipality's Policy for Right-to-Know Law Requests.

F. The requester refuses to pay applicable fees authorized by the Right-to-Know Law.

G. The extent or nature of the request precludes a response within the required time period.

6. Any record in the possession of the municipality shall not be considered a public record if:

A. The record is exempt from access pursuant to § 708 of the Act.[1]

[1] Editor's Note: See 65 P.S. § 67.708.

B. The record is protected by a privilege.

C. The record is exempt from disclosure under any other federal or state law or regulation or judicial order or decree.

7. The municipality may deny a request for a record if the requester has made repeated requests for the same record and the repeated requests have placed an unreasonable burden on the municipality.

8. The municipality may deny a request for a record in the following circumstances:

A. When timely access is not possible due to fire, flood or other disaster.

B. For historical, ancient or rare documents, records, archives and manuscripts when access may, in the professional judgment of the curator or custodian of records, cause physical damage or irreparable harm to the record.

9. To the extent possible, the contents of a record denied pursuant to Subsection 7 or 8 of this section shall be made accessible to a requester even if the record itself is physically unavailable.

§ 1-506 Appeal of municipality's denial of access to record - procedural.

[Res. 2008-12, 4/23/2008, § 6]

1. When a written request for a record is denied or deemed denied, a requester may file an appeal with the Office of Open Records pursuant to § 503(a)(2) of the Act.[1]

[1] Editor's Note: See 65 P.S. § 67.503(a)(2).

2. An appeal of a response must be filed within 15 business days of the mailing date of the response.

3. An appeal of a deemed denial must be filed within 15 business days of the date the request is deemed denied.

4. Upon receipt of an appeal, the Office of Open Records shall assign an appeals officer to review the response or deemed denial.

5. Any person other than the municipality or the requester who has a direct interest in a record that is the subject of an appeal pursuant to this section may, within 15 days following receipt of actual knowledge of the appeal, but no later than the date on which the appeals officer issues a determination, file a written request to either appear before the appeals officer or to provide information in support of the requester's or municipality's position. Copies of such request shall be provided to the requester and the municipality at the time the request is submitted to the appeals officer. The appeals officer, upon receipt of such request, may grant the request only if: (A) no hearing has been held on the appeal; (B) the appeals officer has not yet issued a determination; and (C) the appeals officer believes the information proffered by the party having a direct interest will be probative.

§ 1-507 Appeal of municipality's response - substantive.

[Res. 2008-12, 4/23/2008, § 7]

1. The appeal must be set forth in writing and must state the grounds upon which the requester asserts that the record is a public record and shall address any grounds stated by the municipality for delaying or denying the request.

2. The appeals officer may, in his or her discretion, conduct a hearing on the appeal. The decision whether to conduct a hearing or not shall be a final order not subject to appeal.

3. The appeals officer shall:

A. Set a schedule for the requester and Open Records Officer to submit documents in support of their respective positions.

B. Review all information submitted with respect to the appeal.

C. Admit into evidence testimony, evidence and documents the appeals officer believes to be reasonably probative and relevant to the issue in dispute, and limit the nature and extent of evidence found to be cumulative.

D. Consult with counsel for the municipality as appropriate.

E. Issue a final determination on behalf of the Office of Open Records or other agency, as appropriate.

F. Permit any other person having a direct interest in the record to provide information relevant to the appeal or to appear before the appeals officer, as applicable, pursuant to § 1101(c) of the Act.[1]

[1] Editor's Note: See 65 P.S. § 67.1101(c).

4. The appeals officer will issue a final determination and mail such determination to the requester and to the Township within 30 calendar days of receipt of the appeal unless a different timetable is agreed to by the requester. If the appeals officer fails to issue a final determination within 30 calendar days of receipt of the appeal, the appeal shall be deemed denied.

5. Within 30 days of the mailing date of the final determination of the appeals officer, or of the date an appeal is deemed denied, a requester or the municipality may file a petition for review or other document as required by rule of court with the Court of Common Pleas for the county in which the municipality is located. Any decision issued by such Court shall contain findings of fact and conclusions of law based upon the evidence as a whole and shall clearly and concisely explain the rationale for the decision. The filing of a petition for review or other document with the Court of Common Pleas shall stay the release of a record until the Court issues a decision.

§ 1-508 Access to municipality's records.

[Res. 2008-12, 4/23/2008, § 8]

1. Providing a requester with physical access to a record in the municipality's office is a "response" for the purposes of the Right-to-Know Law. Only the municipality has the authority to permit this access. Hours of access shall be 9:00 a.m. to 5:00 p.m., Monday through Friday.

2. Only a natural person who is a legal resident of the United States or an "agency," as defined in the Right-to-Know Law, is entitled to access to public records under the Right-to-Know Law. In determining whether a requester is a legal resident of the United States, the municipality will require the requester to provide proof of citizenship and/or residency, such as a current, valid photographic identification. A current driver's license issued by any state within the United States, containing a picture of the requester and an address within such state, will be considered acceptable photographic identification.

3. A public record will be provided to the requester in the medium requested if the record currently exists in that medium. Otherwise, the public record will be provided in the medium in which it currently exists. If a record is only available in electronic form, the municipality may respond to the request by notifying the requester that the record is available through publicly accessible electronic means or that the municipality will provide access to inspect the record electronically. If the requester is unwilling or unable to access the record electronically, the requester may, within 30 days following receipt of the notification from the municipality, submit a written request to the municipality to have the record converted to paper. In the event of such a request, the municipality shall provide access to the record in printed form within five days of receipt of the written request for conversion to paper.

§ 1-509 Costs.

[Res. 2008-12, 4/23/2008, § 9]

1. Fees for duplication by photocopying, printing from electronic media or microfilm copying onto electronic media, transmission by facsimile or other electronic means and other means of duplication shall be established by the Office of Open Records.

2. Fees for complex and extensive data sets, including geographic information systems or integrated property assessment lists shall be based on the reasonable market value of the same or closely related data sets; provided, however, that such fees shall not be applicable to persons obtaining information for publication or broadcast or to nonprofit organizations obtaining information for the conduct of educational research, as provided in § 1307(b)(4)(ii) of the Act.[1]

[1] Editor's Note: See 65 P.S. § 67.1307(b)(4)(ii).

3. Fees for conversion of a record to paper shall be limited to the lesser of the fee for duplication on paper or the fee for duplication in the original medium, unless the requester specifically requests that the record be duplicated in the more expensive medium.

4. The municipality may establish user fees for the provision of enhanced electronic access to records, as set forth in § 1307(e) of the Act.[2]

[2] Editor's Note: See 65 P.S. § 67.1307(e).

5. Postage. Fees for postage shall not exceed the actual cost of mailing.

6. The municipality may impose a reasonable fee for official certification of copies of a record, if requested by the person or agency who is the requester, for the purpose of legally verifying the public record.

7. The municipality may waive any applicable fees in circumstances including, but not limited to, the following: (A) when the requester duplicates the record; or (B) when the municipality deems it to be in the public interest to do so.

8. The municipality may require prepayment of an estimate of the applicable fee for access to a record if the applicable fee is expected to exceed $100.

9. If the requester pays any fee by check, the payee shall be designated as "Lower Southampton Township" and the words "Right-to-Know" must be clearly displayed on the face of the check.

10. Unless specifically authorized by the Act, the municipality may not impose additional fees unless it necessarily incurs costs for complying with a request for a record and unless such fees are reasonable. No fee may be imposed for the municipality's review of whether a record is a public record as defined in the Act.