Constitutional Law

Pa. newspapers win fight over charges for records requests

By By The Associated Press

HARRISBURG, Pa. ? Government agencies cannot charge people seeking public records for the time agency employees spend complying with requests made under Pennsylvania?s Right to Know Law in certain cases, a state Commonwealth Court panel has ruled.

Upholding the state Office of Open Records in a pair of similar cases, the panel on Nov. 4 said the State Employees? Retirement System cannot recover the cost of employees? labor in creating documents tailored to specific requests because the same information was available ? in a less organized and less convenient form ? in records that already existed.

The law allows agencies to recover copying charges ? 25 cents a page is the recommended maximum ? and expenses ?necessarily incurred? in responding to records requests.

But the court said that does not include the expense of consolidating records into a single spreadsheet, as SERS did in response to separate requests from the Pittsburgh Post-Gazette and the Beaver County Times, which appealed those charges to the open-records office.

?SERS? creation of such a record was not ?necessarily? incurred, as it was not ?necessary? for SERS to create such a record,? Senior Judge Jim Flaherty wrote on behalf of the panel.

Terry Mutchler, director of the open-records office, said the ruling helps clarify the language in the statute.

?There may be a time when a (labor) fee is appropriate,? she said. ?We have not seen that time, but this does not preclude that.?

SERS spokesman Robert Gentzel said having a computer programmer write and run a query of data in SERS computers based on a specific request is ?a much more efficient way of handling these requests for everybody.?

?We clearly believe that what we?re doing is permitted by the law,? he said.

It might be more expensive to provide paper records if the agency charged requesters for the costs of both copying and employees? labor, Gentzel said.

?We really still haven?t gotten entirely to the core issues ... the meaning of those words in the statute,? he said.

He said the agency had not decided whether to appeal.

In one case, a Post-Gazette reporter late last year requested compensation and service information about certain employees and was advised by SERS that fulfilling the request would cost $77. The charge covered 90 minutes of work by one employee to build the spreadsheet and 30 minutes of verification by another, according to court papers.

The open-records office upheld the newspaper?s appeal and directed SERS to turn over copies of the existing records, allowing only copying charges of about $30 for an estimated 120 pages. SERS appealed to Commonwealth Court.

In its appeal, SERS argued that not charging for employees? labor would violate its responsibility to operate the pension fund for the exclusive benefit of its members under the State Employees Retirement Code and federal Internal Revenue Code.

The court panel agreed with the open-records office that responding to requests made under the Right to Know Law is a routine part of complying with state laws.

The decision ?offers further clarification of the Right to Know Law and that?s a good thing,? said Melissa Melewsky, a lawyer with the Pennsylvania Newspaper Association.

Full post as published by First Amendment Center on November 05, 2010 (boomark / email).