Defining Right to Know Law
The Right to Know Law is a piece of legislation that places a statutory duty on public authorities to make information available to the public. With certain exceptions the Right to Know Law requires public authorities to permit individuals access to their public records for inspection and duplication. The Right to Know Law is extensive and far-reaching. The Right to Know Law applies to miscellaneous agencies, cities, counties, township, boroughs, authorities, and other government entities that are created by statute or ordinance.
The primary purpose of the Right to Know Law is to provide citizens with access to information about their government . Enacted in 1957, the Right to Know Law is based on the principle of accountability of government to the people. Indeed, the Right to Know Law is often viewed as the keystone of our democracy.
As mentioned above the Right to Know applies to public authorities, but the law is actually very broad, covering not only state-run agencies, but cities, counties, boroughs, townships, boards, school districts, commissions, councils, authorities, and quasi-governmental bodies whether created by the constitution, statute, ordinance, resolution, or by vote of an elected body.
Historical Background
The development of the Right to Know Law cannot be understood without an examination of the historical context in which it arose, including previous laws concerning access to public records and meetings, as well as the judicial interpretation surrounding these laws and the legislative history of the RTKL.
The RTKL is the first comprehensive open records law in the Commonwealth’s history. Prior to the RTKL’s enactment, there were several laws relating to access to records of Commonwealth and local government agencies.
Act of May 31, 1957: At the Commonwealth level, the original open records law was enacted in 1957, titled the Pennsylvania Right to Know Law, 1957 P.L. 153. The law provided for access to records of Commonwealth agencies and provided for a process through which an individual could request a record for inspection or copying. The Act also provided for appeals to Commonwealth Court for a judicial determination over what documents must be disclosed in response to a valid request. However, the 1957 RTKL did not permit requests to be made to local agencies.
Act of October 15, 1965: Subsequent to the promulgation of the 1957 RTKL, the law was amended to change major elements of the law. This included: the addition of a definition section; the specification of which agency records were covered under the law; the provision of access to records of local government agencies; the elimination of the provision requiring an appeal to Commonwealth court; and the allowance of private parties to seek a court order compelling compliance by a Commonwealth agency.
Act of May 14, 1976: The RTKL underwent another round of amendments in 1976, which again changed major elements of the law. This included: a change to the name of the law to the Right to Know and Access Act; the provision of a new standard for determining what constitutes a public record; the addition of language permitting summary appellate proceedings; permitting of fees for copies at cost; the addition of penalties for refusal to comply with a valid request; and the elimination of the provision concerning the disclosure of excluded documents without waiving the ability to practice the privilege for subsequent related documents.
Act of December 31, 1984: The RTKL was amended in 1984 so as to, among certain other changes, "place the burden of litigation expenses [when seeking to compel disclosure] on the party seeking disclosure" and to "[p]ecify the duties of the Commonwealth agencies to compile a current index."
Act of August 1, 1988: The RTKL underwent its most significant amendment to date in 1988. The 1988 amendments changed the name of the subject law from ‘the Right to Know and Access Act’ to the ‘Open Records Law.’ Further, the amendments completely rewrote the statutory language from 1976, as the statute was rewritten "to make it more readily understandable by the average citizen" These substantial amendments included, but were not limited to: the specification of what constitutes a public record; the addition of strict guidelines where an agency is authorized to withhold a document from disclosure; the specification of what purposes are proper in denying access to documents, the specification of a fee system where those requesting records must pay for the copying and transcription of the requested documents, and a specification of the costs of accessing voluminous materials; strict time restrictions in which an agency must respond to a valid request; a requirement that the request be made in writing; a requirement that any agency denying access provide a written explanation for the denial; and repealing of the 1984 provision regarding the burden of litigation expenses. The 1988 Act also addressed the application of the law to the judiciary, holding that the law "applies to the judicial branch of government" and specifying what documents are considered public records of the judiciary.
Judicial Interpretation: The interpretation of the RTKL has been greatly influenced by judicial interpretation. In two significant acts, the Pennsylvania Supreme Court has examined the RTKL and further shaped the understanding of the meaning of open records. In Gallagher v. Office of the Governor, 601 Pa. 586, 975 A.2d 419 (Pa. 2009), the court examined the meaning of the term "agency" as it was applied to the Office of the Governor. Holding that the RTKL applies to the Office of the Governor, the court examined the extrinsic evidence of the authority given to the Office of the Governor in the Commonwealth’s constitution and other statutes, stating "these assorted grants of authority to the Governor . . . demonstrate that the Governor is a part of the organization of state government, both constitutional and statutory." Further, in Office of the Governor v. Scolforo, No. 16 EAP 2013, 2014 Pa. LEXIS 1101, the Supreme Court examined the definition of "public record." In holding that personal electronic mail (email) communications of the Governor were not public records, the court considered both the specificity of the RTKL’s definition of a "public record", as well as the legislative intent for the law. In examining the legislative history of the law, it is no surprise that they recognized that "[t]he RTKL is grounded in the intent of providing Pennsylvanians with access to government records so as to ensure that the people have the means to hold their elected officials accountable."
Legislative History of the RTKL: The legislative history of the RTKL reflects the extensive consideration that the legislature gave to the spell binding language contained within the legislation. Senate Bill 1, known as the "Right to Know Law," was introduced into the State Senate on February 14, 2007. The bill was first examined by the State Government Committee in April of 2007, during which time the committee members debated the merits of the bill. During the ensuing committee vote on May 1, 2007, committee member Senator Costa declared that it would be a "complete disgrace" if the Commonwealth did not pass the RTKL in the spring of 2007.
In September of 2007, during consideration of the bill by the Senate State Government committee, the Committee considered a proposed amendment, which combined the provisions of Senate Bill 1 with the provisions of Senate Bill 433 (which proposed to amend Pennsylvania’s Sunshine Act relating to access to governmental meetings). The proposed amendment to Senate Bill 1 would have repealed the current 1957 Right to Know Law, and would have eliminated several changes to the law proposed in Senate Bill 1. During debate on the Sunshine Act amendments, Senate Democratic Policy Committee Chairman Michael A. O’Pake commented that the bill, as introduced, "is almost a joke", and further stated that the amendment to SB 433 would "bring the Sunshine Law into the 21st century."
The debate concerning the bill continued through 2008, with votes taken on numerous versions of the bill, however opposition to the bill also remained consistent throughout this time. Therefore the bill was not passed until the last possible day of the legislative session, in November of 2009.
Key Features and Mechanisms
At the outset, it is important to identify the entities to which the Right to Know Law applies. The law applies to "local agencies," which means boards of county commissioners, municipalities, municipal authorities, and any other political subdivisions or municipal authorities. Requests under the Right to Know Law, however, can also be directed to "functional authorities." Functional authorities include authorities established by home rule charter or ordinance to carry out a prescribed function (i.e. a sewer authority). Finally, the Right to Know Law applies to "state-related institutions." State-related institutions generally includes the State System of Higher Education, Penn State, Pitt, and Temple.
Pennsylvania has very broad Right to Know laws. A statutorily defined record is an account, voucher, correspondence, report, map, etc. created and/or received in the course of a local agency’s business. While actual policies and procedures are not public records, drafts and communications discussing policies and procedures would be. In fact, even "internal" documents, if they pertain to a local agency’s business, would be subject to disclosure. There are a handful of exceptions to disclosure, including information that is personal in nature or protected by privilege pursuant to other laws. All exceptions are enumerated in the statute and each must be reviewed on a case-by-case basis. It is worth noting that, as a practical matter, government tends to be risk-averse and, therefore, overly cautious to deny a right to know request initially rather than take a chance and have to disclose something later on down the line. If you are submitting a request for records, be persistent, but good luck, as they say.
The manner in which the law is handled also raises questions with respect to enforcement and oversight. There is no overarching authority for appeal such as a state-level Right to Know Commission. Instead, each local agency is charged with the obligation to review and respond to Right to Know requests. Additionally, there is no specific requirement that a local agency report to the State Legislature on its disclosures. Theoretically, despite the grant of authority to each local agency to examine Right to Know requests, requesting parties could potentially file a lawsuit against a local agency in the event of a dispute. In practice, most people do not endure the time and cost that may be necessary to contest a Right to Know request.
Business and Organizational Impacts
The Right to Know Law, which mandates that employers inform employees about the hazardous chemicals they may be exposed to in the workplace, has significant implications for businesses and organizations. Compliance with this law requires employers to maintain an accurate inventory of all hazardous substances on their premises and to make Safety Data Sheets (SDS) readily available to all employees. Additionally, employers must provide specific training to employees about the hazards of these substances and how to handle them safely.
One of the biggest challenges of complying with the Right to Know Law is understanding the law itself and identifying what information must be disclosed to employees. The law is so complicated that many compliance officers do not fully understand the requirements, and it is very common for employers to have something deficient in their program.
In order to comply with the Right to Know Law, employers must develop a comprehensive program that includes an inventory of all hazardous substances, SDS for each substance, proper labeling, and a training program for all employees. Employers must also ensure that the program is regularly updated to reflect any changes in the workplace. This can be a time-consuming and costly process, but it is essential to ensure compliance with the law.
Despite the challenges, there are many benefits to adhering to the Right to Know Law. By informing employees about hazardous substances, employers can help prevent workplace injuries and illnesses. This not only protects employees but also helps employers avoid costly workers’ compensation claims. Additionally, compliance with the law can improve employee morale and productivity by creating a safer and healthier work environment.
Case Examples and Applications
The impact of the Right to Know law can best be understood by examining a few case studies that illustrate how the law has been applied in real-world situations. One such example comes from a state agency that, for years, had a policy prohibiting the disclosure of employee disciplinary records. It was deemed an invasion of privacy to disclose the names of employees or the details of punishments such as suspension. As a result, if someone requested this information, the agency was able to simply deny the request, and there was nothing that the requester could do about it. However, in 2011, in an effort to increase transparency and accountability, an executive order was issued requiring all state agencies to adopt a form of the Right to Know law that provided access to employee disciplinary records. When this order was announced, many of the agencies, including the one mentioned above, argued that the new policy should not apply to them because they were not covered by the Right to Know law, meaning that they were under no obligation to respond to the requests. When this issue was brought to court by the Common Cause of Pennsylvania, it was ruled that the policy was binding on all state agencies. This meant that all state agencies in Pennsylvania were subjected to the terms of the Right to Know law, including those disciplinary records previously considered off-limits. The impact of this change became evident almost immediately as many local news groups submitted requests for such disciplinary records. In another example, from the Pennsylvania Office of Open Records, it was claimed that a certain agency could deny requests for information from the previous year because the requestors had not provided their names. Under the law, the agency was required to deny the requests unless the requestor provided his or her name and address, so the agency argued that the law did not apply to the requestors because these basic requirements were not given . However, the Commonwealth Court found that the requestors had enough information in their higher education transcripts to define them as members of the public, stating that the information submitted by the requestors in this case had "no further relevance" other than to inform the agency that the information could be used to identify them. This meant that the requests could not be denied because the requestors had not provided their names. This shows how the interpretation of the law can even grant requestors additional rights. The Right to Know law also applies to government agencies using private contractors. For instance, in Pennsylvania, a contractor was hired to operate a number of state-operated facilities. Since the contractor was paid through government funds, the Right to Know law applied, meaning that local citizens could submit requests for information through the Freedom of Information process. The contractor did not have the power to reject these requests, so they remained the responsibility of the local government. Similarly, if the contractor failed to provide information, the local government was not held responsible for not responding to the request. The above cases show that the Right to Know law has an impact on all government agencies, including local governments and contractors who are operating under the administration of the state or obtaining funds from the government. The case studies also illustrate how the law can be interpreted differently in each case and how courts can come to different conclusions about the law’s effects in any given situation. From these scenarios, we can clearly see that the law is intended to protect citizens by holding governments accountable for their actions and by enforcing transparency in government agencies.
Right to Know Law in Comparison to Other Transparency Laws
In addition to the Right to Know Law and related Pennsylvania legislation, there are other transparency laws that govern disclosure of information both within the same jurisdiction and outside of it. Some may even have similar names to the Right to Know Law but govern a different subject matter.
For example, unlike the Right to Know Law, which governs what public agencies must disclose to a citizen making a records request, Section 6103 of the Right to Know Law is titled "Criminal History Record Information," and governs disclosure of criminal history information by the Pennsylvania State Police. Other legislation, such as the Open Records Act in Delaware, has a similar purpose to the Right to Know Law, but governs disclosure of information in Delaware – and not in Pennsylvania, where the Right to Know Law applies.
In Ohio, the Public Records Act governs records disclosure much like the Right to Know Law, but with some notable differences. For instance, under Ohio’s Public Records Act, a person seeking public records does not need to identify himself or herself or give a reason for the request. And, unlike Pennsylvania, under Ohio’s Public Records Act, the agency possessing the requested records can deny access to all of the records if any of them are deemed exempt from disclosure. In contrast, to obtain records under the Right to Know Law, the requester simply must provide sufficient information to identify the specific record requested. And, pursuant to the Pennsylvania Supreme Court’s holding in the case of Office of the District Attorney of Philadelphia v. Richette, if any portion of a record is exempt from disclosure under the Right to Know Law, the agency that received the request must redact the exempt information and provide the non-exempt portions to the requester.
Outside of the United States, similar laws are in place around the world. For example, in both Canada and the United Kingdom, Freedom of Information Laws mandate that the "default" position is that public records should be disclosed to citizens upon request, similar to the Right to Know Law, unless an exemption applies.
Emerging Trends and Future Directions
A major future trend may involve the Pennsylvania Department of Environmental Protection ("DEP") taking a much more assertive approach to enforcing the Right to Know Law through the regulatory process. There is a suggestion that the DEP may take a hard line on this issue. There have been references to going back to 65 P.S. ยง 67.901, which in some ways may be even more cumbersome than the RTKL. Or, the DEP could just develop its own regulation and make it clear that it will only process RTKL requests related to environmental records under the DEP regulation. We may also see the fee structure adjusted.
Some issues will continue to be tweaked in the courts and in the courts of public opinion. For example, there has already been a tremendous amount of debate over the DEP’s insistence that public involvement and comment on draft documents is not required under the RTKL . This position is also followed by the US Environmental Protection Agency, despite the fact that the US EPA has a CFR procedure for public involvement and comment on draft documents related to hazardous waste under the Resource Conservation and Recovery Act (RCRA). The US EPA recently took the position that documents created in the course of drafting a Consent Order between the US EPA and Range Resources in the 2010 Montrose well contamination case were not subject to the RTKL. Based upon a similar rationale, the DEP has also taken the position that it is not required to turn over documents in draft to the public.
Future developments will likely focus on what documents can be withheld as deliberative and preliminary. We may get decisions on the discoverability of licenses, permits, draft regulations, drafts of authority opinions, draft enforcement case files, and letters of interpretation.