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PA businesses could pay more for open records

HARRISBURG — North Cornwall Township Manager Robin Getz said she sees the municipality's employees spending too much time fulfilling open-records requests made to earn someone else money.

That's why she's urging the state legislature to provide a fee structure for records submissions made for commercial purposes.

"Our staff is performing the duty for a business, which is further resulting in their efforts being taken away from the taxpayers that they are there to serve," Getz said. "Government should not be utilized as promoters for any business."

Getz was one of about a dozen people who testified in front of the Senate State Government Committee on Monday. The hearing concerned a proposed update to Pennsylvania's Right-to-Know Law, which governs public records access for all state and local agencies.

As part of the rewrite, sponsored by Senate Majority Leader Dominic Pileggi, R-Delaware, Senate Bill 444 proposes a fee structure for requests made for commercial purposes.

Such requests are common, especially at the local level, said Office of Open Records Executive Director Terry Mutchler. A business who sells swimming pool liners may request information on pool permits to prepare a mailing list of their target audience. Same with dog licenses, or tax records that get sold off, Mutchler explained.

"What you see now is a township, county, and whatnot, putting in lots of hours and time in, and then that information is turned around and being sold," Mutchler said.

Presently, the Right-to-Know Law says request approvals must be blind to the purpose. But the proposal would create a two-channel system — one for citizen requests, one for commercial entities.

The proposed law defines "commercial purpose" as obtaining records for sale or solicitation, or "in a manner through which the requester can reasonably expect to make a profit."

The news media and academic institutions are explicitly exempted; Mutchler cited circumstances in other states where a local government officer may get "creative" and consider the local reporter making requests for purpose of profit.

The proposed fee would be calculated based on the hourly wage of the lowest-paid employee who is capable of handling records requests.

The system is similar to the federal Freedom of Information Act, which has one channel for citizen, student and media requests, and another for commercial purposes with a separate fee structure.

Mutchler said she doesn't support adding fees for the time it takes government officials to answer citizens' requests since taxpayers already pay government salaries. But there's a difference between obtaining information in order to study the government, versus someone collecting public records for a money-making venture, she said.

"It's not that they shouldn't have access, they're public records," Mutchler said. "But I do believe there's a better way to separate a citizen from a commercial user."

Drawing that line will require lawmakers to consider what exactly constitutes commercial purpose.

Kenn Marshall, media relations manager at the Pennsylvania State System of Higher Education, said about 20 requests out of 116 in a single year came from businesses or law firms. He cited a request from an unsuccessful bidder on a health-care contract who wanted to see all the proposals that were denied. That involved reviewing more than 4,000 pages of proposal information and because the law requires the agency to alert unsuccessful bidders when their proposals are requested, the notification triggered several more requests for the same information.

"It certainly could be argued the purpose of such a request is commercial," Marshall said, "as the information provided by the request could be used to increase chances of the requester submitting a successful bid in the future."

Marshall also cited cases where law firms request public records as a way of outsourcing the legal discovery process. At 25 cents a page, using the law at PASSHE might be less expensive than traditional discovery methods.

Andy Hoover, legislative director for American Civil Liberties Union of Pennsylvania, said the legislature should carefully consider the language in the section regarding commercial fees, as there's no clear definition for "solicitation." He told the committee activities by a non-profit could be considered solicitation, even if it's not for a commercial purpose.

Senate Bill 444 could be amended. Erik Arneson, Pileggi's spokesman, said another hearing is likely to take place with a focus on state-related universities under the open records law.

Arneson said he hopes the Senate will consider the legislation by fall.

Contact Melissa Daniels at