Right-to-Know Law

Pennsylvania's Right-to-Know Law (RTKL) is designed to guarantee that the public has access to public records of government agencies. It affects all state and local governmental agencies including municipalities, authorities, school districts, and other government entities (all referred to as "agency" below).

The RTKL provides that all documents are presumed to be open to the public unless the agency holding them can prove otherwise. Upon receipt of a request, an agency has a good faith obligation to determine if a requested record exists, if it is a public record subject to disclosure, if one of the 30 (statutorily provided for) exemptions to disclosure are applicable, and if redactions must be made to the record prior to its disclosure.

Requests

While the Pennsylvania Office of Open Records (OOR) offers a standard request form on their website, the public is not required to use it and may make a request in writing, by mail, in person, by fax, or by email. How the request is made determines whether the requester has appellate rights. A written request must be addressed to the agency's Open-Records Officer.

The agency has 5 business days to respond after receipt of the request. The initial response could either be notice of the final disposition of the request, or notice that a 30 calendar day extension has been claimed.

The agency must take care in drafting its final response, and ensure that when a record or part of a record is denied, that the final response cites to the applicable statutory exemption or case law which supports the denial.

Appeals

Requesters may appeal an agency response to the Pennsylvania OOR. Upon appeal, the agency has the burden of proving that the requested record does not exist, or that the requested record is not public or subject to disclosure.

Upon receipt of an appeal, the agency will have 7 business days in which to submit a position statement and affidavits to support the position taken in the final response.

The OOR employs appeals officers who review and decide the appeals and issue Final Determinations for each appeal. The Final Determinations are precedential for future appeals before the OOR. Either the requester or the agency can appeal a Final Determination to the applicable court.

How a government agency responds to a request or appeal can determine whether information which would not otherwise be subject to access is publicly disclosed.

Likewise, how a requester structures a request may determine whether the requester is able to obtain the desired public records.

In 2022, there were over 2,800 Right-to-Know appeals filed before the Pennsylvania OOR, and over 3,000 decisions issued. While OOR Final Determinations can be appealed to the applicable court, you should try to position your appeal, or response to an appeal, such that you get the right answer from the OOR in the first instance. This could help avoid costly court appeals.

How We Can Help

Timothy S. Wachter has extensive experience with the RTKL, and provides counsel to both government entities and requesters.

He regularly provides counsel to more than 50 local governmental agencies on RTKL issues, appeared before county courts as well as the Commonwealth Court on RTKL matters, and has successfully represented clients in dozens of appeals to the Pennsylvania OOR.

Tim also represents individual requesters in their attempts to obtain public information from government agencies.

His agency counsel ranges from day-to-day advice on how an agency should respond to a request, to drafting final responses and performing document review and redaction services, as well as representing clients before the OOR and the courts. He also provides Agency Open-Records Officer and agency official trainings on an as needed basis.

When representing requesters, Tim assists the requester in structuring the request and any necessary appeal to increase the chances that the requester obtains the public records that they are seeking.

Tim has presented on numerous occasions throughout Pennsylvania on RTKL issues since 2009, and testified on behalf of the Pennsylvania School Board Association (PSBA) before the Pennsylvania House of Representatives State Government Committee on proposed amendments to RTKL.

Tim can be reached at 814-459-2800 or by email at twachter@kmgslaw.com.