The Decisions are in….New Open Records Office Issues First “Final Determinations”

Since February 19, Pennsylvania’s Office of Open Records has issued eleven “final determinations” on open records disputes in the Commonwealth, and the results are mostly encouraging. These decisions are binding, unless appealed within 30 days. Some of these decisions will certainly be appealed.

Under the new law, all records held by state and local agencies are presumptively public, and an agency seeking to deny access has the burden of proving that an exemption applies or that a record is otherwise not public. It is clear that the Office of Open Records takes both the presumption and the burden of proof seriously, signaling a real sea change in terms of access to government in Pennsylvania. We hope, as some of these matters are appealed to the courts, that the judiciary applies the same standards and affords the decisions of the Office of Open Records appropriate deference.

Thus far, the Office has found the following:

Public Records:

Contracts and agreements discussed at education subcommittee meeting. Wallace v. School District of Lancaster, AP 2009-0010.

Payroll records, including names of employees, position/title, salary, date of birth, and hire date. WTAE-TV/Parsons v. Port Authority, AP 2009-008.

Certified payroll forms submitted by government contractor on a school renovation project, including employee names. Green v. Quakertown Community School District, AP 2009-0041.

Elevator maintenance reports. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.

List of Hearing Officers of Philadelphia Parking Authority. Sabatini v. Philadelphia Parking Authority, AP 2009-0022.

Not Public:

Records destroyed pursuant to an agency’s record retention policy. Ortiz v. Department of Public Welfare, AP 2009-0015.

Investigation report of building inspection underwriters. Cahill v. Borough of Penndel, AP 2009-0023.

Access to non-public areas of PennDot electronic contract management system. Hersh v. Pennsylvania Department of Transportation, AP 2009-0011

Elevator investigation reports and work papers underlying an audit. Sasso v. City of Philadelphia, Department of Aviation, AP 2009-0014.

Documents that did not exist. Krall v. Roaring Brook Township, AP 2009-0013; Kurzmiller v. Township of Shrewsbury, AP 2009-0005.

An employee’s own personnel file, including performance evaluations and disciplinary records. Rech v. Department of Education, AP 2009-0034.