Act 100
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Guide to Act 100 of 2002
Township Responsibilities under the new Open Records Law

What does Act 100 do? Act 100 rewrites the state's Open Records Law to further provide for access to public records. This is the first substantial change to this law since its inception almost 50 years ago.

When does Act 100 go into effect? This act takes effect December 26, 2002.

What does Act 100 NOT change? This act does NOT change the definition of a public record or who must comply with this act. A public record is a minute, order, or decision affecting the personal or property rights, duties, or obligations of any group and any account, voucher, or contract documenting the receipt or disbursement of money, or purchase of services or supplies. (Section 1) Current case law that further outlines which documents are public records (and which aren't) should continue. However, electronic documents are now included under this definition, as opposed to only paper documents under prior law. (Section 2(a)) (For more information on what documents are public records, see p.43-50 of the PSATS Sunshine Law Manual. This manual is currently being updated to include Act 100 of 2002 and recent court cases affecting the Sunshine Law and the Open Records Law)

What is a non-Commonwealth agency? A municipality, municipal authority, school district, or any other agency which does not meet the criteria under 62 Pa.C.S. Section 103. (Section 1) There are separate sections in the law with slightly different requirements for Commonwealth agencies and for non-Commonwealth agencies, such as townships.

What should townships do now to comply with Act 100? This act requires townships to establish written open record policies that include a municipal contact, a list of applicable fees, and regular business hours. The municipal contact is the person to whom all record requests should be addressed. Municipalities must provide access to public records for inspection during regular business hours. (Section 2(a)) The policy should also list the individual who will receive and respond to exceptions filed when a record is denied and the requester disagrees with the denial. (Section 3.5) This policy must be posted prominently at the municipality's office. (Section 8)

What else may be in the open records policy? While townships may fulfill oral or anonymous requests for public documents, they may require all requests to be in writing. All written public record requests MUST be fulfilled. If a requester wishes to challenge a denial of a record, the challenge must be in writing. (Section 2(b) and (c))

What cannot be in the open records policy? Municipalities are prohibited from requiring a purpose or motive for requesting a particular record and also from limiting the number of public records that may be requested. (Section 8(c))

May a township require a requester to fill out a request form? Yes. A simple record request form should be developed that includes the requester's contact information, the date received, and the specific records requested.

Must the township fulfill requests received by mail? Yes, requests may be submitted in person or by mail or fax. Also, townships may provide for requests to be submitted electronically.

What fees may townships charge? Townships may charge fees for postage, copying, certification, and conversion of electronic files to paper form. (Section 7) Townships may waive copying fees if a requester duplicates a public record or the township deems it in the public interest to do so. (Section 7(f)) The following rules must be followed when establishing a fee schedule:

• Postage - Fees for postage cannot exceed the actual cost. (Section 7(a))
  
• Copying - Fees for copying must be reasonable and based on prevailing fees for comparable services by local businesses. (Section 7(b))
  
• Conversion to paper - If a public record is only maintained electronically, the duplication fee must be the lesser of the fee to copy onto paper or to copy electronically, unless the requester asks for the more expensive option. (Section 7(d))
  
• Certification - Townships may charge reasonable fees to officially certify that a record is the official public record, if so requested. (Section 7(c))
  
• Prepayment - Townships may require prepayment if the estimated cost of fulfilling a request (based on the fee schedule) will be $100 or more. (Section 7(h))
  
• Legal review - A municipality CANNOT charge a fee for a legal review of a document to determine whether it is a public record. (Section 7(g))
  
• Other fees - Other fees may be assessed ONLY if the municipality incurs additional costs in complying with a request and such fees must be reasonable. (Section 7(g))

What happens when a request is received? The township contact person must make a good faith effort to fulfill the request as promptly as possible but no later than five business days from the date it is received. (Section 3.4(a)) The contact person should make sure that the request meets requirements in the township's open records policy. Requests must be specific enough for the municipality to determine what records are needed. (Section 2(c)) Public documents must be made available for copying. (Section 2(a)) If a record is only kept in electronic form, the township must make it available in paper on request. (Section 2(f))

What if a township cannot fulfill the request within 5 business days? A request is considered denied if the requester has followed Act 100 and the township's open records policy and the request is not fulfilled within 5 business days or the requester does not receive notice of an extension. (Section 3.4(a)) A township may use up to 30 additional days if it must remove portions of a record that are not public, retrieve records not stored onsite, or obtain a legal review of the records requested; is experiencing a bona fide staffing shortage; or if the requester has not complied with municipal policies for records access. If the additional days are needed, the municipality must notify the requester of the delay in writing within the first five business days of receiving the request. Access to a public record is considered denied if the delay does not meet one of the above exceptions. (Section 3.4(b))

What if the township is not sure if the document is public? Township officials should consult their solicitor if they believe that release of a record or portions of the record may not be public information. Remember, this is a legitimate reason for the 30-day time extension. Just be sure that the requester is informed of the reasons for the delay in writing within the first five business days of the request. (Section 3.4(a)-(b)) Also, municipalities are not required to create a record that does not exist or to put a document into a format that does not exist. (Section 2(e))

What if part of the document is public and part of it is not? Municipalities may remove portions of a record that are not public information - this is referred to as "redaction." (Section 3.2) If a portion of a document is removed, a written denial must be given for the removed portions of the document. (Section 3.4(c))

What happens if the requested document is not a public record? The township may deny a request for a document if that document is not a public document. (Section 2(a)) Access to a public record CANNOT be denied based solely on the requester's intended use. (Section 3.1) Townships must give issue denials in writing, even if only a portion of the document is denied or removed. The burden of proof for showing that a record is not a public record now rests with the township, not the requester. (Section 3.4(c)) This written denial must include the following:

• a description of the record,
  
• the specific reasons for the denial, including legal citations and, if applicable, reasons from a legal opinion of why a record is not public,
  
• the typed or printed name, title, business address, business telephone number, and signature of the township official denying the request,
  
• the date of the denial, and
  
• the appeal procedure in Act 100 of 2002 (Section 3.4(c))

What is the appeals process in Act 100? If the township denies a request, the requester may file an exception or appeal with the municipality within 15 days of the written denial. This exception must list the specific reasons why the requestor believes that the record should be considered public and must address the reasons listed in the township's denial. (Section 3.5(a)) The township then has 30 days to make a final determination on the exception and may hold a public hearing within this time period. If the township determines that the denial was issued correctly, a written explanation must be provided for the reason for the denial. (Section 3.4(b))

What happens if the township affirms its denial of access to a record? If the township denies the request a second time, the requester may file a petition for review of the denial with the court of common pleas or the local district magistrate within 30 days of the denial. The court must give the requester a reasoned decision containing findings of fact and conclusions of law so that everyone can see how a particular decision was reached. (Section 4(b)) The township must be served notice of a petition for review and be given an opportunity to respond. (Section 4(c))

What happens if a court reverses a township's denial of a record? If a court reverses a municipality's denial, the record must be provided to the requester. If the court also finds that the municipality "willfully or with wanton disregard" deprived the requester of access to a public record or that the municipality's decision was not based on a reasonable interpretation of law, the court may award the requester reasonable court costs and attorney's fees. (Section 4.1(a)) However, if a court affirms the municipality's decision and finds that the challenge was frivolous, the court may award the municipality reasonable court costs and attorney's fees. (Section 4.1(b))

What are the penalties for violating Act 100? An agency or public official who violates Act 100 with the intent and purpose of violating this act commits a summary offense subject to prosecution by the district attorney and, if convicted, is subject to a maximum fine of $300 plus costs. (Section 5(a)) A municipality or public official who does not promptly comply with a court order to produce public records will be subject to a maximum civil penalty of $300 per day until the public records are released. (Section 5(b)) Townships, township officials, and township employees are immune from any other damages or penalties for failing to comply with Act 100.

How long must public records be maintained? The Pennsylvania Historical and Museum Commission publishes a Records Retention Schedule that townships must follow when purging their records. Act 100 does not affect record retention. (Section 2(g)) Townships are immune from any damages or penalties for complying with a written public record retention and disposition schedule. (Section 6(b))

To obtain a copy of Act 100, go to www.legis.state.pa.us (click on "Session Information" and then "Electronic Billroom" and choose "Legislation Enacted") or call PSATS at (717) 763-0930.

Please note that this guide is intended only to provide township officials with an overview of Act 100 of 2002. It is not a legal document. If you have any questions about information in this guide or on the law in general, please consult with your solicitor.