838 Notice of right-to-know procedures--public access to information

DEPARTMENT OF AGRICULTURE

Notice of Right-to-Know Procedures--Public Access to Information

[36 Pa.B. 2287]

TITLE:  Notice of Right-to-Know Procedures--Public Access to Information

EFFECTIVE DATE:  May 13, 2006. This notice supplants a September 27, 2004, notice on the same subject.

AUTHORITY:  This notice is issued pursuant to the Right-to-Know Law, 65 P. S. §§ 66.1--66.9 and Pennsylvania Office of Administration Management Directive 205.36.

GENERAL REQUIREMENT:  Persons requesting access to records kept by the Pennsylvania Department of Agriculture (PDA) pursuant to the Right-to-Know Law (RTKL) should follow the directions provided in this notice. PDA will follow the procedures described in this notice in responding to such requests.

PURPOSE:  This notice modifies PDA's existing records management procedures to: (1) fulfill its obligations under Pennsylvania Right-to-Know Law (RTKL), as amended by Act 100 of 2002; and (2) comply with the requirement of Management Directive 205.36 that an agency such as PDA give appropriate notice of its RTKL policy.

APPLICABILITY:  The provisions of this notice apply to all requests under the RTKL regarding any PDA records. These provisions apply to all recorded information, regardless of whether the information exists in written or electronic format.

DISCLAIMER:  The provisions of this notice are intended to supplement existing requirements. Nothing in these provisions shall affect regulatory requirements. These provisions are not an adjudication or regulation. There is no intent on the part of PDA to give these provisions that weight or deference. This document establishes the framework within which PDA will exercise its administrative discretion in the future. PDA reserves the discretion to deviate from the provisions of this notice if circumstances warrant.

REQUESTING ACCESS TO RECORDS

   PDA maintains thousands of records in its Harrisburg headquarters and 7 Regional Offices spread throughout the Commonwealth. It also retains records at several remote records storage facilities. It will help persons seeking access to records held by PDA to have an understanding of the difference between a ''record'' and a ''public record.'' Definitions of these terms are as follows:

   Public record. Any document that satisfies the general definition of ''public record'' set forth in the RTKL, that does not fall within any of the exceptions set forth therein. The general definition consists of two parts: (i) any account, voucher or contract dealing with the receipt or disbursement of funds by an agency or its acquisition, use or disposal of services or of supplies, materials, equipment or other property, and (ii) any minute, order or decision by an agency fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons. The statutory exemptions are as follows: The term ''public records'' shall not mean any report, communication or other paper, the publication of which would disclose the institution, progress or result of an investigation undertaken by an agency in the performance of its official duties, except those reports filed by agencies pertaining to safety and health in industrial plants; it shall not include any record, document, material, exhibit, pleading, report, memorandum or other paper, access to or the publication of which is prohibited, restricted or forbidden by statute law or order or decree of court, or which would operate to the prejudice or impairment of a person's reputation or personal security, or which would result in the loss by the Commonwealth or any of its political subdivisions or commissions or State or municipal authorities of Federal funds, excepting therefrom however the record of any conviction for any criminal act.

   Record. Any document maintained by an agency, in any form, whether public or not.

   To help locate the appropriate records, the Department suggests the following:

1.  Informal Requests for Access to Records.

   The majority of requests for access to public records kept by PDA can be handled on an informal basis.

   If a person seeks a copy of a statute, regulation, policy, or general information, a good starting point is the PDA website (www.agriculture.state.pa.us).

   PDA regularly provides more types of records for public inspection than are required by the RTKL, and does not require that informal requests to view and copy records be submitted according to a particular procedure. If a person seeks access to a public record, a telephone request to the appropriate RTKL Liaison will--in most instances--result in the requested public record being photocopied and mailed or made available to the requester. PDA has at least two designated RTKL Liaisons at each of its regional offices, and within each bureau at its headquarters building, in Harrisburg. The names, addresses and telephone numbers of the RTKL Liaisons are listed below, in Appendices ''A'' and ''B.''

   In many cases, a visit to PDA's website or a brief telephone call to the appropriate RTKL Liaison can help focus the records request and save time. Although PDA is not legally obligated to provide information through telephone calls or the PDA website, the agency appreciates that many RTKL requests can be resolved quickly and efficiently through this type of communication, and will try to be responsive to informal RTKL requests reaching PDA through these channels.

2.  Formal Written Requests for Access to Records.

   In order for a person seeking access to records to have the ability to enjoy the legal rights and remedies provided for in the RTKL, a request for access to records must be in writing, and must be received by the ''Right-to-Know Law Coordinator.'' A request may not be oral, or offered anonymously. A request must, at a minimum, include: (1) the name of the requester; (2) a statement of whether the requester is a resident of the Commonwealth of Pennsylvania; (3) the address to which PDA should send its response; and (4) a clear identification or description of the records sought, with sufficient specificity to enable PDA to ascertain which records are being requested. PDA encourages (but does not require) the use of the Request Form that appears below, in Appendix ''C.'' Written requests for access to records may be delivered to the Right-to-Know Law Coordinator by mail, personal delivery or facsimile transmission (fax), but may not be delivered by e-mail.

   If the written request is delivered by mail or personal delivery, it should be delivered to the following person:

Michael Mesaris, Right-to-Know Law Coordinator
Pennsylvania Department of Agriculture
Bureau of Administrative Services
2301 North Cameron Street
Harrisburg, PA 17110-9408

   If the written request is delivered by fax, it must be sent to the following:

Michael Mesaris, Right-to-Know Law Coordinator
[phone]

   The business hours of PDA are from 8:00 a.m. to 4:00 p.m., from Monday through Friday, except those days when the offices of PDA are closed for all or part of a day due to a state holiday; pursuant to executive order; due to severe weather (such as a blizzard or ice storm); due to natural or other disaster; or due to the request or direction of local, state or federal law enforcement agencies or officials.

3.  Schedule of Fees.

   PDA is not required to provide a person with copies of requested records--only access to those records that are ''public records'' under the RTKL.

   As referenced below, PDA will provide photocopies of public records without charge for copying or postage if the records comprise ten or fewer pages and can fit in a standard business envelope.

   If PDA's fees for copying the records requested are more than $100, the fees must be paid before PDA will make any copies. The most efficient method by which to make payment is by certified check or money order. Either of these payment methods will result in the prompt copying of the requested material. If payment is by standard check, though, PDA will wait until the check clears before making the requested copies. PDA will not accept cash payments.

   a.  Photocopies. One ''photocopy'' is either a single-sided copy or one side of a double-sided copy. For originals that are 11" × 17" or smaller, PDA does not charge for the first 10 photocopies and charges $0.15 for each photocopy in excess of the first 10. For maps and other oversize documents, the charge is $2.50 per photocopy or the actual cost to the PDA if the photocopying is not done by PDA.

   b.  Other materials. PDA charges the following for copying each of the following records: PC diskette--$5.00; CD--$7.00; microfilm or microfiche--$3.00 for the first copy and $1.50 for each additional copy; paper printouts from microfiche--$0.50; aperture card--$0.75.

   c.  Staff time and postage. PDA does not charge for first class postage if the copies fit in a standard business envelope. Otherwise, PDA charges for the cost of postage. There is no charge for staff time for locating records or preparing the records for review. PDA charges $15.00 per hour for staff time for redacting records, for leaving a PDA office to accomplish off-premises copying, for traveling in order to retrieve records and for other tasks.

   d.  Certified copies. PDA charges $8.00 per sealed impression for official certification of copies.

   e.  Copying not done at PDA offices. Requesters are prohibited from removing any records from any PDA office. The charges for copying that cannot be done at a PDA office, such as copying of videocassette tapes, is the actual charge to PDA for the copying, plus the $15.00 per hour charge for PDA staff time.

   f.  Charges for retrieving off-site records. If a requester seeks access to records that have been sent to off-site locations, the charge is the cost of transporting those records to and from the PDA office, including the $15.00 per hour charge for PDA staff time. PDA will provide the requester an estimate of these charges before retrieving the records.

   g.  Charges for special copying. The above list is not exhaustive. PDA retains the discretion to impose reasonable charges for copying or record retrieval not described above.

4.  Exceptions: Challenging a Full or Partial Denial (or Deemed Denial) of Access to Public Records.

   PDA may deny access to a public record in several ways. In summary, denial may be in the form of a letter denying--in whole or in part--a written request for access, or may be a ''deemed denial'' if PDA does not respond to a written request for access within the time frames prescribed by the RTKL. In either event, the requester has the right to file ''exceptions'' challenging PDA's denial.

   It will help persons seeking to challenge a denial of access to records held by PDA to have an understanding of the following terms:

   Business day. Any Monday, Tuesday, Wednesday, Thursday or Friday, except those days when the offices of PDA are closed for all or part of a day due to a state holiday; pursuant to executive order; due to severe weather (such as a blizzard or ice storm); due to natural or other disaster; or due to the request or direction of local, state or federal law enforcement agencies or officials.

   Exceptions. A written administrative appeal filed with an agency by a requester challenging the agency's denial or deemed denial of the requester's RTKL request.

   Exceptor. A person who files exceptions to a full or partial denial of a request for access to records by PDA.

   RTKL Exceptions Official. Any official or employee designated by the agency head to consider exceptions, conduct hearings, as appropriate, and issue final determinations resolving those exceptions.

   RTKL Exceptions Unit. The office designated by the agency head to receive and docket exceptions filed by requesters

   a.  Time within which Exceptions must be filed. A person who seeks to file exceptions to PDA's full or partial denial of a request for access to records must do so within 15 business days of the mailing date of PDA's written denial, or within 15 days of the date the request is deemed denied.

   b.  Format and content of Exceptions. Exceptions must be in writing, and must state the basis for the requester's position that the record with respect to which access has been denied is a public record. Exceptions should address the reasons stated by PDA for denying the request, unless the request was deemed denied. Exceptions may (but need not) contain a request for a hearing before the RTKL Exceptions Official.

   c.  Submitting Exceptions to the RTKL Exceptions Office. Written exceptions may be submitted to the RTKL Exceptions Office by: (1) regular U. S. mail (in which case the mailing date shall be the date of the postmark on the envelope or, if the postmark is illegible, the date immediately preceding the date upon which the RTKL Exceptions Office receives the exceptions, and the mailing date shall be considered the filing date); or (2) by personal delivery, facsimile transmission, parcel delivery service courier service or similar means of delivery (in which case the filing date shall be the date the exceptions are received at the RTKL Exceptions Office). Exceptions may not be submitted by e-mail. Exceptions should be delivered to the following person:

Marilyn Heck, Right-to-Know Law Exceptions Official
Pennsylvania Department of Agriculture
Bureau of Administrative Services
2301 North Cameron Street
Harrisburg, PA 17110-9408

   If the written request is delivered by fax, it must be sent to the following:

Marilyn Heck, Right-to-Know Law Exceptions Official

[phone]

   d.  Procedure for Resolving Exceptions. Unless otherwise agreed to by PDA, the Exceptor and the RTKL Exceptions Official, the following procedures shall apply:

   *  Within 7 business days after the filing of the exceptions, PDA may submit to the RTKL Exceptions Official a written response to the exceptions.

   *  If the RTKL Exceptions Official decides to conduct an administrative hearing, the Exceptor will be notified of the date, time, and place. The RTKL Exceptions Official may condition having an administrative hearing on the Exceptor's agreement to a final determination more than 30 days after the exceptions were mailed.

   *  The RTKL Exceptions Official may: (1) require that each party, in advance of the administrative hearing, provide a list of witnesses and exhibits to the opposing party and the RTKL Exceptions Official; and (2) at the subsequent administrative hearing, limit the witnesses and exhibits to only those identified on the list.

   *  Unless otherwise determined by the RTKL Exceptions Official, the administrative hearing will be conducted during a single business day. The RTKL Exceptions Official may limit the time within which each party must present its witnesses and exhibits. The Exceptor will present evidence first.

   *  Testimony of witnesses at an administrative hearing will be under oath and recorded by a court reporter.

   *  If an administrative hearing is held, the strict rules of evidence will not be applied. The RTKL Exceptions Official may admit into evidence testimony and exhibits that are reasonably probative and relevant. Any brief or legal argument must be presented at or before the hearing.

   *  The General Rules of Administrative Practice and Procedure will not apply. The RTKL Exceptions Official shall rule on procedural matters regarding the exceptions on the basis of justice, fairness, and expeditious resolution.

   *  The RTKL Exceptions Official may designate another person to conduct hearings or otherwise assist the Exceptions Official.

   e.  Review of Exceptions. The RTKL Exceptions Official may--but need not--convene a hearing on the exceptions. The decision as to whether to convene a hearing is not appealable. The RTKL Exceptions Official must issue a written ''final determination'' by mailing it to the requester within 30 days of the mailing date of the exceptions (or the filing date, if the exceptions are delivered to the RTKL Exceptions Official by means other than by regular U. S. mail), unless this time period is waived by the Exceptor. If the final determination denies the request for access to records, it will contain a written explanation of the reasons for denial. A final determination may be appealed to the Commonwealth Court, in accordance with the Right-to-Know Law.

DENNIS C WOLFF,   
Secretary

APPENDIX ''A''

List of Right-to-Know Law Liaisons at PDA Regional Offices

OFFICE	COUNTIES COVERED	TELEPHONE   NUMBER	RIGHT-TO-KNOW LAW LIAISON AND ALTERNATE
PDA Region I Office 13410 Dunham Road Meadville, PA 16335	Clarion, Crawford, Elk, Erie, Forest, Jefferson, McKean, Mercer, Venango and Warren	[phone]	Paula Sleptzoff
PDA Region II Office 542 County Farm Road Suite #102 Montoursville, PA 17754	Cameron, Clinton, Columbia, Lycoming, Montour, Northumberland, Potter, Snyder, Tioga and Union	[phone]	Sherri Holtzman, Margaret (Peggy) Bird
PDA Region III Office Rt. 92 South, P. O. Box C Tunkhannock, PA 18657	Bradford, Carbon, Lackawanna, Luzerne, Monroe, Pike, Sullivan, Susquehanna, Wayne and Wyoming	[phone]	Ann Morgan
PDA Region IV Office 6 McIntyre Rd. Gibsonia, PA 15044	Allegheny, Armstrong, Beaver, Butler, Fayette, Greene, Indiana, Lawrence, Washington and Westmoreland	[phone]	Irene Corvi Marilyn Rebholz
PDA Region V Office 1307 7th Street Cricket Field Plaza Altoona, PA 16601	Bedford, Blair, Cambria, Clearfield, Centre, Fulton, Huntingdon, Juniata, Mifflin and Somerset	[phone]	Richard Choboy Elizabeth Santini, DVM
PDA Region VI Office State Farm Show Complex P. O. Box 5184 Harrisburg, PA 17110-0184	Adams, Cumberland, Dauphin, Franklin, Lancaster, Lebanon, Perry and York	[phone]	Tom Oyler Sally Seeley
PDA Region VII Office Route 113, P. O. Box 300 Creamery, PA 19430	Berks, Bucks, Chester, Delaware, Lehigh, Montgomery, Northampton, Philadelphia and Schuylkill	[phone]	Phyliss Starr Larry Sidorowicz

 

Appendix ''B''

List of Right-to-Know Law Liaisons at PDA Bureaus, Commissions and Offices

Bureaus:
Office Name	Right-to-Know Law Liaison and Alternate	Telephone Number
Bureau of Administrative Services	Marilyn Heck Fred Wertz	[phone]
Bureau of Animal Health and Diagnostic Services	Dr. Jeanine Staller Joyce McLaughlin Sue Berkheimer	[phone]
Bureau of Dog Law Enforcement	Mary Bender Rick Burd	[phone]
Bureau of Farm Show	Norine Bahnweg Chris Seiple	[phone]
Bureau of Farmland Preservation	Maggie Hanshue Clara Roy	[phone]
Bureau of Food Distribution	Nancy Derr Sandy Hopple	[phone]
Bureau of Food Safety and Laboratory Services	Lenchen Radle Norma Burrs	[phone]
Bureau of Market Development	Pam Dailey Stacy Rakocy	[phone] [phone]
Bureau of Plant Industry	Joe Uram John Breitsman	[phone] [phone]
Bureau of Ride and Measurement Standards	Sheila Strubhar Kenneth Deitzler	[phone]
Other Offices:
Press Office	Kristina Watson	[phone]
Equine Toxicology and Research Laboratory	Mark Kaher	[phone]
Hardwoods Development Council	Keith Craig D. Wayne Bender	[phone]
Commissions:
State Harness Racing Commission	Anton Lepler Fonda Civitello	[phone]
State Horse Racing Commission	Dan Tufano Sara Freed	[phone]

   The mailing address of each Bureau, office or commission listed is as follows:

(Name of Bureau, Office or Commission)
ATTN: (Name of Right-to-Know Law Liaison)
Pennsylvania Department of Agriculture
2301 North Cameron Street
Harrisburg, PA 17110-9408

_________________                                       __________
Official Use Only--RTKL                                                                    Official Use Only--
Request tracking Number                                                                   Date Stamp
 

__________

Pennsylvania Department of Agriculture
Right-to-Know Law Coordinator
Bureau of Administrative Services
2301 North Cameron Street
Harrisburg, PA 17110-9408
PDA Right-To-Know Law Record Request Form
 
 

Name of Requester:       (Please print)	__________          Last                                                First                                    MI
Signature:	_________________   Date:   __________
Mailing Address:	__________                                                    Street/P. O. Box
	__________          City                                                 State                              Zip Code
Telephone Number:	_________________   Fax Number:   __________          Optional                                                                                Optional

Is the requester a resident of the Commonwealth of Pennsylvania? (Check one)   Yes ______   No __________

If ''yes,'' provide the address of the resident, if different from the Mailing Address provided above:  ______________________________

Please identify each of the documents that is subject to this request. You must identify these documents with sufficient specificity so we may ascertain whether we have these documents and how to locate them.
__________________________________________________

Please check one of the following:

_____ I am only requesting access to the documents identified above.

_____ I am only requesting a copy of the documents identified above.

_____ I am requesting access to the documents identified above and a copy of those documents.

If you are requesting a copy of the documents identified above, please check one of the following:

_____ I want a paper copy of the documents.

_____ I want a computer-readable copy of the documents, if available in that format (e.g., diskette or compact disk).

_____ Other (please specify): __________

[Pa.B. Doc. No. 06-838. Filed for public inspection May 12, 2006, 9:00 a.m.]