What is a Public Record under the Right to Know Law?

Law’s Definition

A record is defined by the Right to Know Law to be “information, regardless of physical form or characteristics, that documents a transaction or activity of an agency and that is created, received, or retained pursuant to law or in connection with a transaction, business or activity of the agency.” A record can take many forms. A record can be a document, paper, letter, map, book, tape, photograph, film or sound recording, information stored or maintained electronically and a data-processed or image-processed document.

Under the Right to Know Law, all government records in the possession of a Commonwealth or Local Agency are presumed to be accessible by the public. This means that you may access any government records you request unless the agency is able to prove that the record you requested is not public under the law. Agencies have the burden of proving that records are not public. If the agency fails to prove that a record is not public, that record must be disclosed.

Under the law, a record is considered public if it:

Is not protected by a privilege;

Is not exempt from disclosure under a different federal or state law, regulation, or judicial order; or

Is not exempt under one of the thirty exemptions of Section 708 of the RTKL.

In short, any agency record that does not fit into any of these three categories is considered a public record and is accessible under the law. It is the burden of the agency to prove that a record is not public by showing it falls within one of the exceptions listed above. These categories will be explained in more detail in the paragraphs to follow.

Protected by Privilege

The law exempts records that are protected by a privilege. The two most common privileges invoked by agencies are:

Attorney-client privilege: Communications between clients and their attorneys that relate to the requesting or giving of legal advice. Information that is protected by the attorney-client privilege is considered confidential under the RTKL.

The Commonwealth Court has held that an agency’s open records officer cannot waive the agency’s attorney-client privilege by unilaterally deciding to release privileged records. That decision only can be made by the agency’s leadership. (See Board of Supervisors v. McGogney.)
The attorney-client privilege does not protect client identities or general descriptions of services in legal invoices. (See Levy v. Senate.)
Legal research performed by a solicitor is protected by the attorney-client privilege. (Dages v. Carbon County.)

Work-product doctrine: Materials created by an attorney in preparing for a legal case or court proceeding are considered confidential under the Right to Know Law. For example, in Heavens v. Department of Environmental Protection, the Commonwealth Court ruled that the work-product doctrine protects files showing the opinion of an agency’s lawyer concerning the agency’s legal action following an oil well fire.

Other privileges that agencies might invoke include the doctor-patient privilege and the speech and debate privilege, which protects members of the state legislature from being arrested or prosecuted for advocating their viewpoints. The law recognizes other privileges; this list is not exhaustive.

Exempt Under Another Federal or State Law

The RTKL exempts records from disclosure if they are protected by other Federal and State laws, regulations, or court orders. If such laws, regulations or orders state that certain records are confidential or not public, the documents requested are not “records” and thus cannot be reached through the Right to Know Law. For example:

The Right to Know Law did not supersede state regulations about government records that were already on the books when the General Assembly passed the RTKL. (See Jones v. Office of Open Records.)
Tax returns and tax return information, which are confidential under federal law, are not subject to disclosure under the Right to Know Law. (See Office of the Budget v. Campbell.)
The Commonwealth Court ruled that documents pertaining to Pennsylvania Turnpike Commission employees’ use of E-ZPass transponders are not public records under the Right to Know Law because the records contain information that is considered confidential under the Pennsylvania Transportation Act. (See Pa. Turnpike Commission v. Murphy.)

The inverse of this rule is also true: If another law, regulation, or order mandates that a record is public, that record cannot be withheld under the Right to Know Law.

Coroners are required to release copies of cause and manner of death records within the time established by the RTKL and are permitted to charge the fees assessed under the Coroner’s Act because the Coroner’s Act requires those records to be disclosed. (See Hearst v. Coroner.)
Records to which the public is granted access through a procedure set forth in another statute are not necessarily public records accessible under the RTKL. The Commonwealth Court made this distinction in an opinion regarding a statute that allowed public access to Pennsylvania’s hazardous chemicals inventory database, but only during specific times, in a specific location, and after the requester followed a given protocol for requesting access. The Court determined that this law did not deem the database to be public in nature, but rather it simply provided a means of access. (See Dept. of Labor & Industry v. Heltzel.)

Protected by an Exemption Listed in Section 708

The Right to Know Law lists 30 exemptions agencies may invoke to protect their records – though they are not required to do so.

An agency may choose to disclose records even if those records are protected by an exemption, provided that all of the following apply:

(1) Disclosure of the record is not prohibited by:

(a) Federal or State law or regulation, or
(b) Judicial order or decree;

(2) The record is not protected by a privilege; and

(3) The agency head determines that the public interest favoring access outweighs any individual, agency or public interest that may favor restriction of access.

The most commonly-litigated exemptions are:

The Personal Security Exemption: Any record that, if disclosed, would be reasonably likely to result in a substantial and demonstrable risk of physical harm to, or the personal security of, an individual. For example:

The Commonwealth Court held that a state properly denied a request for the birthdates of all Pennsylvania state employees under the Right to Know Law’s personal security exemption because the agency was able to present evidence demonstrating an increased likelihood of identity theft, fraud, and phishing scams if the birthdates were released. (See Governor’s Office of Administration v. Purcell.)
The Commonwealth Court ruled that there is no constitutional right to privacy in one’s home address. Consequently, an agency may not redact home address information of agency employees from any record responsive to a request. The Court explained that, where this rule is applied to the RTKL, it is impossible to have a reasonable expectation of privacy in an age of information that requires disclosure of home address information on a regular basis. (See Marin v. Secretary of the Commonwealth; see also Office of the Lieutenant Governor v. Mohn.)
- Despite the ruling that no constitutional right to privacy exists in an agency employee’s home address, as described above, the Commonwealth Court has ordered an injunction on the release of home addresses of public school employees. The Court will issue a final ruling in the future, though no time frame for that final ruling has been announced. (See Pennsylvania State Education Association v. Commonwealth.)
The Commonwealth Court determined that, in the case of inmate transfer records, Department of Corrections employees’ identities were exempt under the Right to Know Law’s personal security exemption because the disclosure of such information in the context of a correctional institution would create a substantial risk to the personal security of the individuals. (See Carey v. Dept. of Corrections.)
If an agency asserts the personal security exemption, it must provide competent evidence, usually in the form of an affidavit, that demonstrates a direct link between the record sought and the personal security risk asserted. Merely repeating the words of the exemption or vague, general or mere potential claims of security risk is not sufficient. (See Office of the Lieutenant Governor v. Mohn.)

The Criminal and Noncriminal Investigations Exemptions: Records of information collected by the police or other agencies related to either a criminal or noncriminal investigation. The Commonwealth Court has broadly defined an investigation as “a systematic or searching inquiry, a detailed examination, or an official probe.” For example:

Incident reports of the Pennsylvania State Police are exempt from disclosure under the Right to Know Law’s criminal investigation exemption because those reports are related to criminal investigations. (See State Police v. Office of Open Records.)
Records relating to honor code violations of students were exempt from disclosure under the noncriminal investigation exemption of the Right to Know Law and under the federal law governing student privacy, even though the requested records did not identify specific students. (See Sherry v. Radnor Twp.)
Notes, witness statements, and other materials related to nursing home licensing inspections were protected by the noncriminal investigation exception because regularly conducted inspections are considered “investigations” under the law. (See Dept. of Health v. Office of Open Records.)

The Internal, Predecisional Deliberations Exemption: Records that relate to deliberations of decision-making bodies. Such records must not be merely factual and must represent internal deliberations occurring before a decision is made. These records include those predecisional deliberations relating to a budget recommendation, legislative proposal, or proposed policy, including internal strategies. A couple of cases have helped to explain what kinds of materials are and are not covered by this exception:

The Commonwealth Court ruled that resolutions discussed at an agency’s public planning meeting are not considered drafts, do not reflect internal predecisional deliberations, and therefore must be disclosed under the Right to Know Law. (See Philly Public School v. School District.)
The Commonwealth Court determined that a public official’s calendar entries might be protected by the internal predecisional deliberations exception if they “may contain the topic of the meeting, along with specific points that are to be discussed, or proposed actions, along with a list of individuals scheduled to attend the meeting.” (See Office of the Governor v. Scolforo.)

The following is the full list of exemptions:

1a. Loss of funds: If the record is disclosed, the agency would lose federal or state funds.

1b. Personal security: See commonly-litigated exemptions above.

2. Public safety: Disclosing the record would be reasonably likely to jeopardize homeland security or public safety or preparedness. For example:

Disclosure of the “Supervision Strategies” section of the chapter on Sex Offender Supervision Protocol in the Pennsylvania Board of Probation and Parole’s manual could threaten public safety because the effectiveness of such strategies would be jeopardized if they were publicly known. (See Woods v. Office of Open Records.)

Records relating to police use of confidential informants are exempt from disclosure under the public safety exception. (See Adams v. State Police.)

3. Infrastructure security: Disclosing the record would create a reasonable likelihood of endangering the safety or security of a building, public utility, infrastructure, or information storage system.

4. Computer security: Disclosing the record would reasonably likely jeopardize computer security.

5. Health records: Medical, psychological and related records that would disclose individually identifiable health information.

6a. Personal identification information: This exemption protects Social Security numbers; personal financial information; driver’s license numbers; home, cellular or personal telephone numbers; personal e-mail addresses; employee numbers; other confidential personal identification numbers; a spouse’s name; marital status; and beneficiary or dependent information.

Records containing personal identifying information must be disclosed, but the identifying information can be For example, the Commonwealth Court held that the final arbitration awards and orders in union grievance matters are subject to disclosure under the Right to Know Law, so long as information is redacted if it is expressly covered by the list of identifying information protected by the exception. (See Lutz v. City of Philadelphia.)

6b. Law enforcement/judicial security: Home addresses of law enforcement personnel and judges.

This exemption does not protect the disclosure of other government employees’ home addresses. For example, the Commonwealth Court ruled that the Right to Know Law does not exempt from disclosure the Governor’s home address. (See Office of the Governor v. Raffle.)

7. Certain personnel records: This exemption covers records relating to public employees, including:

letters of references unless related to an appointment to fill a vacancy in an elected office or an appointed office requiring Senate confirmation;
performance ratings or reviews;
state civil service test results and local results if restricted by collective bargaining agreement or if applicant failed;
applications of those people who are not hired;
workplace support services program information;
written criticisms of an employee;
grievance material;
information regarding discipline, demotion, or discharge contained in a personnel file, although this exemption does not shield from the public an agency’s final action that results in demotion of discharge; and
academic transcripts.

8. Collective bargaining: Records relating to an agency’s collective bargaining strategy or negotiations, except that final contracts and agreements and final awards and orders of arbitrators are public.

9. Drafts of bills, resolutions, regulations, policies, management directives, and ordinances.

10. Records reflecting internal, predecisional deliberations of agencies, including predecisional deliberations relating to a budget recommendation, legislative proposal, or proposed policy, including internal strategies. This exemption does not apply to records reflecting an agency decision, records requesting state funding/grant money, or results of public opinion surveys or polls. In addition, records presented to a quorum of an agency for public deliberation at a meeting subject to the Sunshine Act (e.g., board packets) are public records, unless otherwise exempt under the Act.

See most commonly-litigated exemptions above for examples of this exemption.

11. Trade secrets and confidential proprietary information. To be protected by this exception, a record must be “confidential or financial information received by an agency (1) which is privileged or confidential; and (2) the disclosure of which would cause substantial harm to the competitive position of the person that submitted the information.” (See Pa. Dept. of Public Welfare v. Eiseman.)

The courts will also consider the Pennsylvania Uniform Trade Secrets Act in such cases, as the Trade Secrets Act preempts the RTKL where the two differ on the public nature of records. Under the Trade Secrets Act, a trade secret is defined as “[i]nformation including a formula, drawing, pattern, compilation, including a customer list, program, device, method, technique or process that: (1) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; [and] (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.” (See Eiseman.)
The Commonwealth Court explained that whether to designate information as a trade secret under the Trade Secret Act is a highly fact-specific inquiry, and, as a result, the Pennsylvania Courts have created a list of factors to consider when making a ruling. Those factors include: “(1) the extent to which the information is known outside of the business; (2) the extent to which the information is known by employees and others in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to his business and to competitors; (5) the amount of effort or money expended in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.” (See Eiseman.)

12. Notes and working papers, so long as the papers are used by a public official or employee solely for personal use.

13. Donations: Records that would disclose the identity of a donor to the agency, unless the donation is intended for or restricted to providing remuneration or personal tangible benefit to a named public official or employee of the agency.

14. Unpublished academic materials.

15. Academic transcripts and examination materials.

16. Criminal investigative records. This exemption does not apply to private criminal complaints or to information contained in a police blotter or in a traffic report (except for in-depth accident investigations).

See most commonly-litigated exemptions above for examples of this exemption.

17. Non-criminal investigative records. This exemption does not apply to fines levied by agencies, license revocations, settlement agreements, or similar agency actions.

See most commonly-litigated exemptions above for examples of this exemption.

18. 911 records: Records and transcripts of 911 calls – except time response logs – are not public, but agencies can disclose 911 recordings or transcripts if the agency or a court determines that the public interest in disclosure outweighs the interest in nondisclosure.

The Commonwealth Court has ruled that agencies must provide cross-street information about the location to which emergency responders were dispatched. (See County of York v. Office of Open Records.)

19. DNA and RNA records.

20. Autopsy reports, except that name, cause, and manner of death of a deceased individual are public.

21. Draft minutes of an agency until the next meeting, and minutes of an executive session.

22. Real estate appraisals, environmental reviews, audits or evaluations relating to an agency’s proposed lease, acquisition, or disposal of real property. The exemption does not apply once the decision to lease, acquire or dispose of the property is made.

23-24. Library circulation records and certain archived materials.

25. Sensitive sites: Records identifying the location of an archeological site or an endangered or threatened plant or animal species if not already publicly known.

26. Pre-award contract bids: Proposals relating to agency procurement or disposal of supplies, services or construction prior to the award of the contract or the opening and rejection of all bids; financial information of a bidder or offeror.

27. Insurance: Communications between an agency and its insurance carrier, administrative service organization, or risk management office. This exemption does not apply to contracts between agencies and these entities or to financial records relating to the provision of insurance.

28. Social services: Records identifying individuals who apply for or receive social services or disclosing the social services received by an individual.

For example, the Commonwealth Court held that when records disclose only the personal information of owners of Section 8 housing, and not the tenants who receive the social service, the records do not fall within the social services exemption. (See Housing Authority v. Van Osdol.)

29. Constituent letters: Correspondence between a person and a legislator that would identify a person requesting assistance or constituent services. This exemption does not apply to communications from lobbyists.

30. Identity of minors: Records identifying the name, home address, or date of birth of a child 17 years of age or younger.

Financial Records and Aggregated Data: Only some of the exceptions apply to financial records and aggregated data maintained by an agency.

When a request seeks financial records, an agency may redact data only if it is protected by the following exemptions:

The disclosure would result in the loss of Federal or State funds,
Personal Security Exception
Public Safety Exception
Physical Security of Buildings and Infrastructure Exception
Computer Security Exception
Health Records Exception
Personal Identification Information
Law Enforcement and Judicial Security Exception
Criminal Investigation Exception
Non-criminal Investigation Exception

In addition, an agency shall not disclose the identity of an individual performing an undercover or covert law enforcement activity, if it can be found in the requested financial records.

If a request seeks aggregated data, an agency can deny the request if the information requested fits within the following exemptions: