Monday, January 28, 2008

Senate Resolution 225 (Orie) designates January 2008 as “Cervical Cancer Awareness Month” in Pennsylvania.  Adopted by Voice Vote. 

Tuesday, January 29, 2008 

Senate Bill 497 (Robbins) would amend the act that encourages landowners to make land and water areas available to the public for recreational purposes by limiting liability to include “trails” in the definition of land.  The bill would also include “motorized recreational vehicle riding” in the definition of recreational purpose.  Passed:  50-0. 

Senate Resolution 226 (Washington) designates the month of February 2008 as “Black History Month” in Pennsylvania.  Adopted by Voice Vote. 

Executive Session 

Nominations to Various Boards and Commissions.  (See Attached)  Confirmed:  50-0. 

Wednesday, January 30, 2008 

Senate Bill 1 (Pileggi) would create the Right-to-Know Law.  The bill would specifically require a Commonwealth agency, a local agency and a legislative agency to provide public records or legislative records in accordance with the act.  The agencies would be prohibited from denying a requester access to a public record or legislative record due to the intended use of the record by the requester.  A judicial agency would be required to provide financial records in accordance with the act or any rule or order of court providing equal or greater access to the records.  Similarly, a judicial agency could not deny a requester access to a financial record due to the intended use of the record by the requester.  A record in the possession of a Commonwealth agency or local agency would be presumed to be a public record unless the record is exempt under Section 708 of the act, it is protected by a privilege, or it is exempt from disclosure under any other federal or state law or regulation, or judicial order or decree.  The same presumption would apply to legislative records and judicial financial records.  Nothing in the act would supersede or modify the public or confidential nature of a record or document established in federal or state law, regulation, or judicial order or decree.

The bill would establish an Office of Open Records in the Department of Community and Economic Development to provide information relating to implementation and enforcement of the act, to provide training courses, to establish an internet website with information relating to the act, to conduct a biannual review of the fees charged under the act, and to review appeals of decisions by Commonwealth agencies.  The Office would be required to employ or contract with attorneys to serve as appeals officers.  Each appeals officer would be required to complete a training course.  The Governor would appoint an executive director of the Office who would serve for a term of six years.  The executive director could not serve more than two terms or seek election or accept appointment to any political office during his or her tenure and for one year thereafter.  The appropriation for the Office would be a separate line item and would be under the jurisdiction of the executive director.  The Office would have to report annually to the Governor and the General Assembly on its activities.

All agencies covered by the act would be required to designate an open-records officer who would receive requests for records, direct requests to the appropriate person, track the agency’s response to the requests and maintain the required records.  The Office of Open Records would be required to designate an appeals officer for all Commonwealth and local agencies.  The other agencies and offices covered by the act would also be required to designate an appeals officer.  An agency could promulgate regulations, rules or policies necessary to implement the act.  The following information would have to be posted at each agency and, if the agency maintains an internet website, on the agency’s website:  contact information for the open records officer, contact information for the applicable appeals officer, a form which could be used to file a request, and the regulations and policies of the agency relating to the act.  The Office of Open Records would be required to develop a uniform form which must be accepted by all Commonwealth and local agencies, in addition to any form used by the agency to file a request under the act.  The uniform form would be published in the Pennsylvania Bulletin and on the office’s website.  Judicial agencies and legislative agencies could develop their own forms or use the one developed by the Office of Open Records.

Public records, legislative records or financial records would be available for access during the regular business hours of an agency.  An agency could make its records available through any publicly accessible electronic means.  If a requester is unwilling or unable to use the electronic access, the requester could submit a written request to have the record converted to paper.  The agency would be required to provide the paper version of the record within five days of the receipt of the request.  Nothing in the act could be construed to require access to the computer of an agency or individual employee of an agency. 

An agency could deny a requester access to a record if the requester has made repeated requests for that same record which have placed an undue burden on the agency.  Such a denial would not restrict the ability to request a different record.  An agency could exercise discretion to make an otherwise exempt record accessible for inspection or copying if the conditions outlined in the bill are met.  A public record that is not in the possession of an agency but is in the possession of a party with whom the agency has contracted to perform a governmental function, and which is directly related to the governmental function and not otherwise exempt, would be considered a public record.  Nothing in the act could be construed to modify, rescind, or supersede any record retention disposition schedule of an agency established pursuant to law, regulation, policy or other directive. 

If information which is not subject to access is an integral part of a public record, legislative record, or financial record, the agency would be required to redact the information which is not subject to access and grant access to the other information.  Information which an agency redacts would be considered a denial.  If, in response to a request, an agency produces a record that is not a public record, legislative record or financial record, the agency would be required to notify any third party that provided the record to the agency, the person that is the subject of the record and the requester.  An agency would also be required to notify, within five business days, a third party of a request if the third party provided the record and included a written statement that the record contains a trade secret or confidential proprietary information.  The third party would have five business days from receipt of the notification to provide input on the release of the record.  The agency would be required to deny the request or release the information within ten business days of the provision of notice to the third party and notify the third party of the decision.  An agency would not be required to create a record which does not exist or to compile a record in a manner in which the agency does not currently compile, maintain or organize the record.  The burden of proving that a record, legislative record, or financial record is exempt from public access would be on the agency receiving the request by a preponderance of the evidence.  Section 708 of the proposed act lists the records that would be exempted from access by a requester.

The time to respond to a request could not exceed five business days from the date a written request is received by an open records officer.  If the agency fails to send the response within the five business days, the written request for access would be deemed denied.  The bill provides for an extension of the five business days if certain circumstances, such as the need for redaction or legal review, apply.  In these instances, the open records officer would send a written notice within the five business days notifying the requester that the request for access is being reviewed, the reason for the review, and a reasonable date that a response is expected to be provided.  If an agency’s response is a denial of a written request, a written response would have to be issued detailing, among other information, the specific reasons for denial, including a citation of supporting legal authority.

A requester could file an appeal with the Office of Open Records or other appropriate appeals officer within 15 business days of the mailing date of the agency’s response or within 15 business days of a deemed denial.  The appeal would have to state the grounds upon which the requester asserts that the record is a public record, legislative record or financial record and address any grounds stated by the agency for delaying or denying the request.  A person other than the agency or requester with a direct interest in the record could file a written request to provide information.  Prior to issuing a final determination, the appeals officer could hold a hearing.  A decision to hold or not hold a hearing would not be appealable.  The appeals officer would be required to make a final decision within 30 days of the receipt of the appeal.  The bill provides for judicial review of the decision.  A court could award reasonable attorney fees and costs if it finds that an agency willfully or with wanton disregard deprived the requester of access to a public record or otherwise acted in bad faith; or, the exemptions, exclusions, or defenses asserted by the agency in its final determination were not based on a reasonable interpretation of the law.  The court could also award reasonable attorney fees and costs to the requester or agency if it finds the legal challenge was frivolous.  A court could impose a civil penalty of not more than $1,500 if an agency denied access to a public record in bad faith.  An agency or public official who does not comply with a court order under the act would be subject to a civil penalty of not more than $500 per day until the public record is provided.

Fees for duplication would be established by the Office of Open Records for Commonwealth and local agencies and by each judicial and legislative agency.  The fees would have to be reasonable and based on prevailing fees for comparable duplication services provided by local business entities.  Fees for copying complex and extensive data sets of geographic information systems or integrated property assessment lists could be based on consideration of reasonable market value of the same or closely related data sets unless the information is being provided to the media for publication or broadcast or to a non-profit organization.  An agency could also establish user fees specifically for the provision of the enhanced electronic access, but only to the extent that the enhanced electronic access is in addition to making records accessible for inspection and duplication as required by the act.  Except as otherwise provided by statute, no other fees could be imposed unless the agency incurs costs for complying with the request.  No fees could be imposed for an agency’s review of a record to determine if the record is a public, legislative or financial record.

A policy, rule or regulation adopted under the act could not limit the number of records which may be requested or require the disclosure of the purpose or motive for the request for access to records.

No later than May 30 of each year, a state-related university would be required to file a report with the Governor’s Office, the General Assembly, the Auditor General, and the State Library containing the following:  all information required by Form 990 (Return of Organization Exempt from Income Tax); the salaries of all officers and directors of the state-related institution; and the highest 25 salaries paid to employees.  The report would not include information relating to individual donors.  The bill would also require Commonwealth agencies, legislative agencies and judicial agencies to provide copies of contracts in excess of $5,000 to the Treasury Department.  The Treasury Department would be required to make the contracts available for public inspection either by posting a copy of the contract or a contract summary on its website.  The Treasury Department would be required to post the information in a way that allows the public to search the contracts or the summaries.  The Treasury Department would also be required to maintain a page on its website with instructions on how to review a contract on its website.

The bill would repeal the existing Right-to-Know Law (Act 212 of 1957).  Concurrence in House Amendments, as Amended:  50-0. 

Senate Bill 313 (Rafferty) would amend the Pharmacy Act to provide for the registration, qualifications and supervision of pharmacy technicians.  Pharmacy technicians would be required to register annually with the State Board of Pharmacy and to pay a registration fee which would be determined by the Board.  Persons seeking to register as a pharmacy technician would have to be at least 17 years of age, have completed a board-approved training program and have submitted a criminal history background check.  Pharmacy technicians would be required to wear a name tag that clearly identifies them as a “registered pharmacy technician.”  The Board could issue a temporary permit to persons applying for registration to act as a “pharmacy technician trainee.”  The permit would expire one year after the date of issuance.  A temporary permit would allow the individual to perform the duties of a pharmacy technician under the immediate supervision of a licensed pharmacist.  Trainees would be required to wear a name tag that clearly identifies them as a pharmacy technician trainee.  The State Board of Pharmacy would be required to promulgate regulations governing the registration of pharmacy technicians including the renewal, revocation or suspension of the registrations within 18 months of the effective date of the act.  The regulations would have to require that pharmacy technicians be under the immediate supervision of a licensed pharmacist.  Individuals would not be required to register as a pharmacy technician or trainee until 18 months after the board has promulgated the regulations.  Passed:  50-0. 

Senate Bill 1023 (Rhoades) would amend the Acupuncture Registration Act to change the name of the act to the Acupuncture Licensure Act.  The bill would also change all references to the “registration” of acupuncturists to the “licensure” of acupuncturists.  Passed:  42-8. 

Senate Resolution 227 (Tartaglione) designates February 1, 2008 as “Wear Red for Women Day” in Pennsylvania.  Adopted by Voice Vote. 

Senate Resolution 228 (Orie) recognizes the month of February 2008 as “Women’s Heart Awareness Month” in Pennsylvania.  Adopted by Voice Vote.