DEPARTMENT OF GENERAL SERVICES
[36 Pa.B. 2775]
[Saturday, June 3, 2006]
1. PURPOSE: In compliance with section 8(a) of the Right-to-Know Law, 65 P. S. § 66.8(a), and Management Directive 205.36, the Department of General Services (DGS) adopts this amended Right-to-Know Law (RTKL) notice establishing the policy, process and procedures that DGS will follow when responding to requests made pursuant to the RTKL for access to or copies of public records.
2. POLICY: DGS will provide the public with access to public records to the fullest extent required by law consistent with DGS' duties to protect the interests and rights of those who do business with DGS, their employees and our employees in compliance with the RTKL, 65 P. S. §§ 66.1--66.9, Management Directive 205.36 (relating to agency responses to RTKL requests) and Manual 215.3, Procurement Handbook: Part I--Chapter 50 (relating to public access to procurement information).
Consistent with this policy, to facilitate access to documents of public interest and to reduce time delays and processing efforts associated with formal RTKL requests, DGS may, from time to time, make documents available on its web site www.dgs.state.pa.us such as statewide contracts, commodity specifications, bid awards, the debarment list and lists of firms appointed as designed professionals.
When a resident's right to access requested documents is limited by law, DGS will apply the applicable legal standards, including, but not limited to these recurring situations:
a. Bids and proposals are not ''public records'' unless and until a contract is executed with one of the bidders or offerors. If a formal contract is executed, the selected firm's bid or proposal is subject to disclosure. The disclosure of competing proposals during the evaluation/discussion processes of the competitive sealed proposals method of procurement is specifically prohibited. 62 Pa.C.S. § 513(d) and (f). The disclosure of unsuccessful proposals also is prohibited under the Commonwealth Procurement Code, 62 Pa.C.S. § 106(b).
b. The Commonwealth Procurement Code prohibits DGS from disclosing financial information contained in a sealed bid, sealed proposal or prequalification document of a bidder or offeror, which was requested in an Invitations for Bids or Request for Proposals to demonstrate its economic capability to fully perform the contract requirements. 62 Pa.C.S. § 106(b).
c. DGS redacts the names and personal information related to a contractor's employees when providing certified payroll records. See Sapp Roofing Co. Inc. v. Sheet Metal Workers' Int'l. Assoc., 552 Pa. 105, 713 A.2d 627 (1998).
d. DGS redacts social security numbers and home addresses contained in public records.
e. DGS will not provide sensitive records, which are not ''public records.'' The RTKL definition of ''public records'' excludes sensitive records when disclosure of the record ''would operate to the prejudice or impairment of a person's reputation or personal security.'' Such sensitive records, if released, might reasonably operate to impair a person's privacy rights or to impair the security of an individual or a group of individuals, including any interest of such persons in their persons, property and reputations, if such information were to come into the possession of persons engaged in the commission of criminal acts, terroristic acts, or acts or war, or persons engaged in planning such acts. Examples of ''sensitive records'' include, but are not limited to: blueprints, plans, and as-built drawings for public and private buildings; plans for highway and railroad bridges; plans for emergency response and evacuation, including Continuity of Government plans, counter-terrorism protocols and other records involving public health and safety; names, addresses, and other information that disclose the identity of law enforcement or corrections officers and officials and their families; and information that would disclose the whereabouts of abused spouses and children.
f. DGS will undertake legal review of a RTKL request related to litigation and will assert its right to extend the responsive time. Requesters are encouraged to follow the Rules of Civil Procedure governing discovery to receive documents in a time frame shorter than the extended time in which a RTKL response is due.
g. DGS follows the rules of statutory construction in the computation of time under the RTKL. See 1 Pa.C.S. § 1908 (period of time referred to in statute is computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on a legal holiday, such day shall be omitted from the computation).
3. DEFINITIONS: The terms ''Public Record,'' ''Requester,'' and ''Response'' shall have the meanings given to them in the ''Right-to-Know Law,'' as amended, 65 P. S. §§ 66.1--66.9. Other terms used in this notice have the following meanings:
a. Business day. Monday through Friday from 8:30 AM to 5:00 PM, except those days when the offices of the Department are closed for all or part of a day:
(1) due to a state holiday;
(2) pursuant to Management Directives 530.71, Partial and Full Day Closings of State Offices and 505.7, Personnel Rules, Section 8.7, due to severe weather (such as a blizzard or ice storm);
(3) due to natural or other disaster; or
(4) due to the request or direction of local, State, or Federal law enforcement agencies or officials.
b. Deemed denied. A request is deemed denied if one of the following conditions occurs:
(1) the Department fails to respond within the initial 10-business-day period specified in the RTKL for response to RTKL requests.
(2) the Department extends the 10-business-day period by up to 30 calendar days, but then fails to respond by the end of that extended period.
(3) the Department notifies the Requester that it requires additional time to respond in excess of the permitted 30 calendar day period.
c. Department. Department of General Services.
d. Exceptions. A written document filed with the RTKL Exceptions Official by a Requester challenging the denial or deemed denial of the Requester's RTKL request by the Department's RTKL Official.
e. RTKL. The Act of June 21, 1957 (P. L. 390, No. 212), commonly referred to as the ''Right-to-Know Law,'' as amended, 65 P. S. §§ 66.1--66.9.
f. Records Custodian. Any person having custody, possession or control of a document.
g. Redaction. The eradication of a portion of a record while retaining the remainder.
h. RTKL Exceptions Official. The official designated by the Secretary to receive RTKL exceptions, to conduct hearings (if and when hearings are convened at the discretion of the RTKL Exceptions Official), and to issue final determinations in accordance with the RTKL. The RTKL Exceptions Official is the Deputy Secretary for Administration, 515 North Office Building, Harrisburg, PA 17125. The facsimile number is (717) 787-4741. The name of the RTKL Exceptions Official may be found at http://www.dgs.state.pa.us.
i. RTKL Official. The official designated by the Secretary to receive RTKL requests submitted to the Department, to direct requests to other appropriate persons, to track the Department's progress in responding to RTKL request, and to issue interim and final responses to RTKL requests. The RTKL Official is the DGS Press Secretary. The address of the RTKL Official is 515 North Office Building, Harrisburg, PA 17125. The facsimile number is (717) 772-2026. The name of the RTKL Official may be found at http://www.dgs.state.pa.us.
j. RTKL request. A written request invoking the RTKL submitted to the Department's RTKL Official asking for access to a record.
k. Secretary. The Secretary of the Department of General Services.
4. PROCEDURES FOR RESPONDING TO RTKL REQUESTS:
a. RTKL Requests.
(1) Verbal RTKL requests. The Department will not accept any verbal RTKL request.
(2) Anonymous RTKL requests. The Department will not accept any written RTKL request that does not identify the Requester.
(3) Electronic RTKL requests other than by facsimile. The Department will not accept RTKL requests submitted via e-mail.
(4) Contents of a request. A RTKL request must include the name of the Requester and a Pennsylvania address to which the Department should respond. The RTKL request must identify or describe the records sought with sufficient specificity to enable the Department to ascertain which records are being requested.
(5) Reason for the request. The Department asks that the Requester disclose the reason for the request so that the Department's response is limited to relevant documents. However, the Department does not insist that a statement of reason for the RTKL request be provided, nor will the Department reject or refuse a RTKL request on the grounds that no such reason was given. Additionally, if the Requester discloses the reason for the RTKL request, the Department will not deny a Requester access to a public record due to the Requester's intended use of that record.
(6) Forms. No specific form is required for submission of the request so long as the required information is included.
(7) Residency requirement. The Department is required to provide a Requester with access to a public record only if the Requester is a resident of Pennsylvania. The Department may, in its discretion, rely upon the Requester's stated address, the return address listed on the request, the postmark, or a combination of these or some other factor(s) to determine whether the Requester is a resident of Pennsylvania.
b. Submittal of RTKL Requests.
(1) All RTKL requests must be addressed to the RTKL Official at the address provided.
(2) The 10-business-day period does not begin to run until the RTKL request is received by the Department's RTKL Official.
(3) If an official or employee of the Department, other than the RTKL Official, receives a RTKL request, that person should, within a reasonable time, either return the RTKL request to the Requester or forward the RTKL request to the Department's RTKL Office. If the request is returned to the Requester, the person who returns it shall inform the Requester that such requests must be sent to the Department's RTKL Official and shall provide the Requester with the RTKL Official's address. If the request is forwarded to the RTKL Official, the 10-business-day period commences upon receipt of the request at the RTKL Official's address.
c. Responses, in General.
(1) The act of providing a Requester with access to a record, either in the offices of the Department, by providing a website address where the document is posted or by sending a copy, is a ''response'' for purposes of the RTKL.
(2) The Department may send written responses to Requesters by U.S. mail, by hand (in person or by delivery service), by facsimile or by e-mail.
d. Physical Access to Public Records.
(1) Unless otherwise provided by law, the Department will make its public records accessible for inspection by any Requester during the regular business hours of the Department. In the case of a public record that is available only through electronic means, the Department will provide access to the public record at an office of the Department. This requirement may be satisfied by providing access (under supervision, as deemed appropriate, to prevent access to information which is not a public record of the Department) at a computer or computer terminal located in a public records access room.
(2) The Department will provide the public record to a Requester in the medium requested if the record exists in that medium. Otherwise, the public record will be provided in the medium in which it exists. If a public record only exists in one medium, the Department is not required to convert that record to another medium.
(3) The Department has the discretion to determine the building(s) and room(s) that will be used to provide a Requester with access to the Department's public records. The selection of buildings and rooms for access to the Department's public records is a matter within the discretion of the RTKL Official.
(4) The Department 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 it does not currently do so.
e. Interim Responses.
(1) The Department must provide a final response to a RTKL request within 10 business days unless one or more specific conditions are satisfied and the Department gives the Requester written notice that additional time will be required. That notice is referred to as an ''interim response.''
(2) The circumstances in which the Department may obtain an extension of time in which to provide a final response are as follows:
(a) The RTKL request requires redaction of a public record.
(b) The RTKL request requires retrieval of a record stored at a remote location.
(c) A response within the 10-business-day period cannot be accomplished due to bona fide staffing limitations (including those resulting from business disruptions caused by weather and other occurrences), which limitations must be specified in the interim response.
(d) A legal review is necessary to determine whether the record requested is subject to access under the RTKL.
(e) The Requester has not complied with Department's policies regarding access to public records.
(f) The Requester has not complied with a demand for prepayment of fees which are required to fulfill the RTKL request and which are estimated to exceed $100. If prepayment of fees is required by the Department, the time period for response shall be tolled from the time the demand for payment is made until such time as payment is actually received.
(3) In addition to setting forth each applicable justification for the extension of time, the interim response must meet the following criteria:
(a) It must be sent to the Requester on or before the last day of the 10-business-day period.
(b) It must include a statement notifying the Requester that the request for access is being reviewed.
(c) It must state a reasonable date when a response is expected to be provided. This date must not be more than 30 calendar days from the end of the 10-business-day period except if the deadline falls on a Saturday, Sunday or holiday, the time for response is the next business day.
f. Final Responses.
(1) Types of final responses. The RTKL provides for three types of written final responses to a RTKL request:
(a) The Department grants the entire RTKL request.
(b) The Department refuses the entire RTKL request.
(c) The Department grants part of the RTKL request and refuses the remainder.
(2) Deemed denials. The failure of the Department to make a timely final response is a deemed denial under the Act.
(3) Final responses granting requests. Unless otherwise provided by law, a written RTKL request will be granted if the record is within the statutory definition of a public record.
(4) Final responses denying requests, either in whole or in part. If a written RTKL request is denied in whole or in part, the Department will issue a final written response including 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 that the record requested is not a public record, the specific reasons for the Department's determination that the record is not a public record shall be included.
(c) The typed or printed name, title, business address, business telephone number and signature of the RTKL Official on whose authority the denial is issued.
(d) The date of response.
(e) The procedure to appeal the denial of access under the RTKL.
g. Redaction. If only portions of a record are public records, the Department will not deny access to the record based upon the fact that portions are not public records. Rather, the Department will redact the portions that are not public records and produce the portions that are public records.
h. Duplication of Public Records.
(1) A public record must be accessible for duplication by a Requester. The Department may either make copies itself or, in its discretion, allow the Requester to bring the necessary equipment to make its own copies.
(2) The Department may make its duplication equipment available to a Requester but require that the Requester operate the equipment; assign its own staff to make the duplications requested by the Requester; or contract for duplication services and require that the Requester pay the contractor for those services.
a. Filing Exceptions.
(1) If a RTKL request is denied or deemed denied, whether in whole or in part, the Requester may file exceptions to the denial with the Department.
(2) A person who makes a verbal RTKL request, an e-mail request or an anonymous RTKL request lacks standing to file exceptions. Any exceptions filed by such a Requester shall be dismissed for that reason.
(3) A Requester may not file exceptions to the Department's decision to extend the response period by up to 30 days.
b. Time for Filing Exceptions.
(1) Exceptions to the Department's written denial must be filed within 15 business days of the mailing date of the written denial.
(2) Exceptions to a deemed denial must be filed within 15 calendar days of the date the RTKL request is deemed denied.
(3) Exceptions that are untimely filed may be dismissed for that reason.
c. Contents of Exceptions.
(1) Exceptions must state the reasons for the Requester's assertion that the record is a public record. Reasons not set forth in writing within the applicable 15-day period are deemed to be waived and may be disregarded by the Department.
(2) Exceptions should address the reasons stated by the Department for denying the RTKL request. Exceptions that fail to comply with this requirement may be dismissed for that reason.
(3) If an RTKL request is deemed denied, the Requester is not required to set forth any grounds for contesting the denial.
d. Submission of Written Exceptions to the RTKL Exceptions Official. Exceptions must be set forth in writing and must be received by the RTKL Exceptions Official. Exceptions submitted to any other official, office, or address are defective and do not stop the running of the 15-day exceptions period.
e. Method of Submission. Exceptions may be submitted by U.S. mail, by hand (in person or by delivery service) or by facsimile. Submission of exceptions by e-mail will not be accepted.
f. Exceptions Procedures. The following procedure will be followed in considering exceptions to the Department's denial of a RTKL request:
(1) Date-stamp the exceptions letter and assign it a tracking number.
(2) Retain the envelope and any documents that accompany the exceptions letter.
(3) Send a copy of the exceptions letter and accompanying documents to the RTKL Official to notify that person of the exceptions.
(4) Schedule and conduct hearings, if hearings are ordered by the RTKL Exceptions Official. The RTKL Exceptions Official may request that the Requester and the Department make written submissions, whether in connection with a hearing or otherwise.
(5) Obtain the services of a court reporter or other method for recording testimony, if a hearing is conducted.
(6) Docket the receipt of evidence and other submittals.
(7) Maintain a record of the final determinations by the RTKL Exceptions Official.
(8) Prepare an official record if an appeal is filed in the Commonwealth Court.
g. Department Response to Exceptions, Timing of Hearings and Submittals. The Department may submit a written response to the exceptions. The Department shall submit any such response to the RTKL Exceptions Official and shall send a copy to the person who submitted the exceptions. The RTKL Exceptions Official should set a schedule for the parties to submit any other documents in support of their respective positions. The RTKL Exceptions Official may also impose reasonable limits on the nature and type of documents to be submitted. If a hearing will be conducted, the RTKL Exceptions Official should schedule it promptly.
h. Period for Resolving Exceptions. Unless the Requester agrees otherwise, the RTKL Exceptions Official must issue a ''final determination'' within 30 calendar days of the mailing date of the exceptions. If the Requester requests a hearing, the RTKL Exceptions Official may condition the grant of that request upon the Requester's written consent or agreement to an extension of that time.
i. Hearings. The Department may conduct a hearing but is not required to do so. Either party (Requester or Department) may request that a hearing be held. The decision to hold a hearing rests in the discretion of the RTKL Exceptions Official and is not appealable.
j. Rules of Evidence and Proof of the Nature or Contents of a Withheld Record.
(1) If a hearing is held, the strict rules of evidence will not be applied. The official presiding at the hearing shall have the discretion to admit into evidence such testimony, evidence, and documents as he or she believes to be reasonably probative and relevant to an issue in dispute. The presiding official may also limit the nature and extent of evidence found to be cumulative.
(2) The RTKL does not provide for the in camera examination of a withheld document. Consequently, if the Department denies access to a record, that record should not be submitted to the RTKL Exceptions Official. Rather, the Department should provide a description of the record, either in writing or by means of oral testimony. If the record is set forth on a form, a copy of the blank form also may be submitted. The Department shall not be compelled to produce a withheld record to the RTKL Exceptions Official.
(3) Unless it is presented to the RTKL Exceptions Official, no withheld record shall become a part of the official record.
k. Rules of Procedure. If exceptions are to be resolved without a hearing, the General Rules of Administrative Practice and Procedure, set forth at 1 Pa. Code Chapters 31, 33, and 35, do not apply. If a hearing is held, the General Rules of Administrative Practice and Procedure shall apply.
l. Department Final Determination. Exceptions are resolved by a final determination of the RTKL Exceptions Official. A final determination must be set forth in writing. If the RTKL Exceptions Official determines that the Department correctly denied the RTKL request, he or she must provide a written explanation to the Requester of the reason for the denial, which explanation may include such exhibits or references to materials as the RTKL Exceptions Official deems appropriate.
6. FEES AND CHARGES:
a. Photocopies. One ''photocopy'' is either a single-sided copy or one side of a double-sided copy.
* 1 side of a standard
8.5" × 11" page
$0.15 if using the Department's copiers and prevailing cost if copied otherwise. * 1 side of any irregular
The Department may set this fee based on its determination of the prevailing cost at the time of the RTKL request.
b. Other Materials.
* PC Diskettes $5 per diskette plus cost of labor. * Microfilm/Microfiche/
Actual cost (including cost of labor, both salary and benefits).
* Material fitting into standard
letter envelope and sent by First
Class United States mail
No Charge * Other Actual cost
d. Redaction. The Department may charge a reasonable fee for necessary redaction including cost of labor, both salary and benefits.
e. Certified Copies. The Department may assess a reasonable fee for providing certified copies in response to a request for certified copies.
f. Compilation. The Department may charge a reasonable fee for compiling and printing requested records or compiling electronic records based on cost of labor, both salary and benefits.
g. Other Costs. The Department may assess reasonable fees for labor and other expenses necessary to comply with the request for access to, or copying of, requested records (but not for determining whether requested records are public records required to be provided to the requested pursuant to the RTKL), e.g., costs for retrieval of records from storage.
JAMES P. CREEDON,
[Pa.B. Doc. No. 06-993. Filed for public inspection June 2, 2006, 9:00 a.m.]
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