On November 4, 2010, the Commonwealth Court upheld the final determination of the Office of Open Records (“OOR”) that determined agencies are prohibited from charging staff time spent in creating a compilation of the requested records under the Right-to-Know Law (the “RTKL”). A copy of the Opinion and Order is attached.

In State Employees’ Retirement System v. Office of Open Records, __ A.2d ___ (Pa. Cmwlth. 2010), the State Employees’ Retirement System (“SERS”) staff created a new record that compiled all the requested records instead of printing separate printouts of each record and redacting. After completing the compilation, SERS charged for the two hours of staff time spent creating the compilation. The requestor refused to pay and appealed to the OOR. SERS took the position that under Section 1307(g) of the RTKL, 65 P.S. § 67.1307(g), agencies are allowed to charge for costs it necessarily incurred in responding to the open records request. I SERS argued the compensation paid the two staff members for their time spent in creating the compilation instead of performing their normal duties was a necessary incurred cost. The OOR found that the compilation prepared by the staff was not required as Section 705 of the RTKL, 65 P.S. § 67.705, provides that an agency “shall not be required to create a record which does not currently exist or to compile, maintain, format or organize a record in a manner in which the agency does not currently compile, maintain, format or organize the record.” Therefore, as the compilation was not required, the costs incurred in creating the compilation were not necessarily incurred to respond to the request. The OOR made a final determination the charged staff time violated Section 1307(g) of the RTKL. SERS appealed to the Commonwealth Court that agreed with the OOR’s determination. The Commonwealth COUl1 held that as the work was not required to provide a response to an open records request, any cost associated with said work is not necessarily incurred as required under Section 1037(g) of the RTKL.

The Opinion appears limited to charging staff time that is incurred in creating a new record, which is explicitly not required under the R TKL. Even though the Opinion does not directly address the issue of whether an agency can charge staff time for performing required work in responding to a request, agencies should proceed cautiously. In Carson v. Warwick School District, Docket No. AP 2010-0471, the OOR made a final determination that no staff time, even for worked required under the RTKL, can be charged under Section 1307(g) of the RTKL. Until the Commonwealth Court addresses the issue directly, agencies should expect any charges for staff time to be challenged.

Robert T. McClintock
Voice (610) 430-8000
Fax (610) 692-6210
bmcclintock@chescolaw.com

Vincent M. Pompo
Voice (610) 430-8000
Fax (610) 692-6210
vpompo@chescolaw.com