SECURITIES COMMISSION Right-to-Know Law Policy [33 Pa.B. 4268] I. General Policy
The Securities Commission (Commission) shall provide the public with access to public records to the fullest extent required by the Pennsylvania Right-to-Know Law and the Pennsylvania Securities Act of 1972. This policy relates to the release of information pertaining to Commission business in compliance with the Pennsylvania Right-to-Know Law, 65 P. S. §§ 66.1--66.9, and Management Directive 205.36. The Commission's Office of Chief Counsel should be consulted in cases in which this policy does not provide sufficient guidance to reach a determination.
In promulgating this policy, the Commission is cognizant of its obligations to the citizens of the Commonwealth to conduct its business in an open manner. The Commission also is aware of its obligations pursuant to Section 603 of the Pennsylvania Securities Act of 1972 (1972 Act), 70 P. S. § 1-603, and Commission regulations codified at 64 Pa. Code § 603.031 (relating to public inspection of records) and 64 Pa. Code § 603.041 (relating to charges for Commission services).
II. Definitions
Act or RTKL. The Act of June 21, 1957 (P. L. 390, No. 212), commonly referred to as the Right-to-Know Law, as amended, 65 P. S. §§ 66.1--66.9, effective December 26, 2002.
Business Day. Any Monday, Tuesday, Wednesday, Thursday, or Friday, except those days when the Commission's office in Harrisburg is 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.
Business Hours. The RTKL Office's regular Business Hours are 8:30 a.m. to 5:00 p.m. Any RTKL request received after the close of regular Business Hours will be deemed to be received on the following Business Day.
Deemed Denied. A RTKL Request is Deemed Denied if one of the following conditions occurs: (i) the Commission fails to respond to a written RTKL request within the initial 10 business day period; (ii) the Commission extends the 10 business day period by up to 30 calendar-days, but then fails to respond by the end of that extended period; or (iii) the Commission notifies the requester that it requires additional time to respond in excess of the permitted 30 calendar-day period.
Exceptions. A written administrative appeal filed with the RTKL Exceptions Office by a Requester challenging the RTKL Official's denial or the deemed denial of a RTKL request.
Mailing Date. (i) The date affixed to the RTKL Official's Response to a RTKL Request, which is to be the date the Response is deposited in the U. S. Mail; (ii) the date affixed to a final determination from the RTKL Exceptions Official, which is to be the date the final determination is deposited in the U. S. Mail; (iii) the postmark date stamped by the U. S. Postal Service on the envelope transmitting the RTKL Request or Exceptions filed by the Requester; or (iv) the date the Exceptions are received by the RTKL Exceptions Official if they are hand delivered or transmitted by facsimile.
Public Record. Any account, voucher, or contract dealing with the receipt or disbursement of funds by the Commission, or its acquisition, use or disposal of services or of supplies, materials, equipment or other property, and any minute, order or decision by the Commission fixing the personal or property rights, privileges, immunities, duties or obligations of any person or group of persons. The term Public Record 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 the Commission in the performance of its official duties or 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. The term Public Record shall not include documents to which a privilege attaches under Sections 601(c) and 601(c.1) of the 1972 Act.
Record. Any document maintained by the Commission, in any form, whether public or not.
Records Custodian. Any person having custody, possession or control of a document. Any person who is believed to have custody, possession or control of a document is a potential records custodian.
Redaction. The removal of a portion of a document by any means while retaining the remainder.
Requester. A natural person who is a resident of the Commonwealth and submits a RTKL Request.
Response. The Commission's reply to a Requester providing physical access to a Record at the Commission's offices or written notice granting, denying or partially granting and partially denying access to a Record.
RTKL Exceptions Office. The office designated by the Commission to receive and docket Exceptions filed by Requesters and to provide administrative support for the RTKL Exceptions Official.
RTKL Exceptions Official. Any official or employee designated by the Commission to consider Exceptions, conduct hearings, if any, and issue final determinations resolving those Exceptions. The RTKL Exceptions Unit shall receive and docket Exceptions filed by Requesters and provide administrative support for the RTKL Exceptions Official.
RTKL Liaison. Any official or employee designated by the Commission to serve as a conduit between the RTKL Official and potential and actual Records Custodians.
RTKL Official. The Commission Secretary is charged with the responsibility of receiving and responding to RTKL Requests. The RTKL Office will be a function of the Office of the Secretary.
RTKL Request. A written request submitted to the RTKL Official asking for access to a Record, a copy of a Record, information purported to be in the possession of the Commission; or a written request (excluding exceptions or appeal) presented to the Commission that invokes the RTKL.
III. Form of RTKL Request
All RTKL Requests must:
* Be submitted in writing by a natural person resident in the Commonwealth.
* Be delivered in person, by mail, or by facsimile.
* State the name and address of the Requester.
* Identify or describe the Records sought with sufficient specificity to enable the Commission to ascertain which Records are being requested.
* Pay any applicable costs.
The Commission will not respond to an oral RTKL Request, an anonymous written RTKL Request, or a RTKL Request transmitted by e-mail.
All RTKL Requests should be addressed to:
Ms. Jeanne Parsons
Office of the Secretary
Pennsylvania Securities Commission
Eastgate Office Building, 2nd Floor
1010 N. Seventh Street
Harrisburg PA 17102-1410If submitting an RTKL Request by facsimile, the request should be forwarded to (717) 783-5125.
Please note that time limitations for reviewing RTKL Requests do not take effect until the RTKL Request is received in the RTKL Office.
IV. Who Has the Right to Know?
The RTKL specifically, provides that ''any citizen of the Commonwealth shall have the right'' to obtain public records. The RTKL applies only to natural persons. If the requesting party is a corporation or other entity, the request may be refused on that basis, even if the corporation or other entity was created under the laws of the Commonwealth. The Commission may, at its discretion, require a requesting party to produce proper identification to establish that the party is a resident of this Commonwealth.
The 1972 Act and Commission regulations promulgated thereunder provide that certain documents maintained by the Commission shall be made available to the public, without limiting such access to natural persons who are citizens of the Commonwealth. The Commission will continue to provide access to information pursuant to the provisions of the 1972 Act and Commission regulations. The Commission will apply the procedures established under this RTKL policy to all requests for public documents regardless of the domicile of the requesting party.
V. RTKL Request Procedure
Upon receipt of the RTKL Request, the RTKL Official will take the following actions:
* Date-stamp the request. Responses received after Business Hours are deemed received on the next Business Day.
* Assign a tracking number to the request.
* Note the day on which the 10 Business Day period will expire and make a notation of that date on the first page of the request.
* Make an electronic or paper copy of the request, including all documents submitted with it, and the envelope in which it came.
* Create an official file for the retention of the original request.
* Record the request in the system used by the Commission for tracking RTKL Requests.
The RTKL Official is responsible for the issuance of interim and final responses to all RTKL Requests. Upon receipt of an RTKL Request, the RTKL Official shall render a final response within 10 Business Days from the date the RTKL Response is received, unless an interim response is warranted and issued within that time. For purposes of determining the end of the 10-Business-Day period, the day that a RTKL Request is received is not counted.
An interim response may be sent on or before the last day of the 10 Business Day period and must set forth one of the following reasons justifying the need for additional time:
* The RTKL Request requires redaction of a Public Record.
* The RTKL Request requires the retrieval of a Public Record stored in a remote location.
* A timely response to the request cannot be accomplished due to bona fide and specified staffing limitations.
* A legal review is necessary to determine if a Record is a Public Record subject to access under the RTKL.
* The Requester has not complied with the Commission's polices regarding access to Public Records.
* The anticipated cost of complying with the RTKL Request exceeds $100 and the Requester has not prepaid such amount.
If an interim response is issued, the Commission has 30 calendar days from the end of the 10 Business Day period to issue a final response. If the Commission's interim or final response is not timely, the RTKL Request is Deemed Denied.
VI. Initial Review by the RTKL Official
The RTKL Official will review an RTKL Request promptly to determine whether the RTKL Request possesses any obvious defects that require it to be rejected without further consideration, raises questions that require consultation with counsel or can be granted without further consideration.
The RTKL permits the RTKL Official to reject an RTKL Request without further consideration where:
* The face of the request unambiguously establishes that the requester is not a resident of this Commonwealth.
* The Records sought by the Requester are not identified with sufficient particularity.
* The Records sought unquestionably fall outside the RTKL definition of Public Records.
* The Records sought unquestionably fall within one of the statutory exclusions to the RTKL definition of Public Records.
* The Records sought unquestionably fall within a common law or statutory privilege set forth in Sections 601(c) and (c.1) of the 1972 Act.
* The RTKL Official has personal knowledge that the Records sought do not exist.
* The RTKL Official has personal knowledge that the Records sought are not in the possession or control of the Commission.
If the RTKL Official does not see an obvious reason to deny the RTKL Request, the RTKL Official or RTKL Liaison(s), if requested to do so by the RTKL Official, shall forward the RTKL Request to potential Records Custodians. Any potential Records Custodian who receives a copy of that RTKL Request shall review the RTKL Request, examine the Records under his control and promptly determine whether he possesses any Records that are subject to the request. A potential Records Custodian shall immediately report his determination to the person from whom he received the RTKL Request.
If a person receiving a RTKL Request knows or believes that one or more of the requested Records is in the possession of another Commission official, employee or agent, he shall forward the RTKL Request to that person, and shall inform the RTKL Liaison that he has done so.
If a Records Custodian is uncertain whether a Record in his possession pertains to a RTKL Request, he should raise this issue with the RTKL Liaison.
Upon receiving a RTKL Request, a potential Records Custodian must consult with the RTKL Official before undertaking to create a presently nonexistent Record.
A Records Custodian must ensure that the document is retained by the Commission until the RTKL Request is completely resolved. Once the Records Custodian receives a request, the Records Custodian is barred from destroying or otherwise disposing of the Record, regardless of any records disposition schedule.
A person with actual custody of a Record identified in a RTKL Request must inform the RTKL Liaison or RTKL Official.
If a Records Custodian has a concern about whether the Requester should receive access to a Record, the Records Custodian should promptly notify the RTKL Official and the associated RTKL Liaison. Upon receiving such notice, the RTKL Official may take appropriate steps to address the Record Custodian's concerns.
VII. Responses
The RTKL Official may respond to a RTKL Request by:
* Providing a Requester with physical access to a Record at the Commission's Harrisburg office. Only the RTKL Official possesses the authority to permit this access.
* Providing to the Requester unredacted copies of the Records identified in the RTKL Request.
* Notifying the Requester in writing by U. S. mail that access to the Records is denied. The Commission, in its discretion, may also notify the Requester by facsimile transmission, overnight or parcel delivery service, or courier delivery.
A response denying an RTKL Request, in whole or in part, must list all of the specific reasons relied upon for denying the request and must include one or more citations of supporting authority.
Inaction by the Commission is not a response, even when it results in an RTKL Request being Deemed Denied.
The Commission will not use e-mail for the purpose of responding to RTKL Requests.
VIII. Physical Access to Public Records
The Commission's Public Records are accessible for inspection by any RTKL Requester during Regular Business Hours at the Commission's Harrisburg office.
The Commission will provide Public Records to a Requester in the medium requested if the Record exists in that medium. Otherwise, the Public Record will be provided in the medium in which it exists. When a Public Record is available only in an electronic form, the Commission, upon request, will provide a paper copy at a cost of $0.50 per page.
IX. Exceptions Procedure
All Exceptions filed with the Commission must be addressed to
Lynn D. Naefach, Deputy Chief Counsel
Office of the Chief Counsel
Pennsylvania Securities Commission
Eastgate Office Building, 2nd Floor
1010 N. Seventh Street
Harrisburg PA 17102-1410If submitting Exceptions by facsimile, the request should be forwarded to (717) 783-5125.
All Exceptions filed with the Commission must:
* Be postmarked, if sent by mail, or received by the RTKL Exceptions Unit no later than 15 Business Days from the mailing date of the written denial or 15 calendar days from the date a RTKL Request is Deemed Denied. Exceptions will not be accepted by e-mail.
* State the reasons the Requester asserts that the Record is a Public Record.
* Address the Commission's stated reasons for denying the RTKL Request.
Exceptions that do not comply with these requirements will be deemed defective and may be dismissed. The time period in which to file Exceptions will not be extended.
Upon receipt of Exceptions, the RTKL Exceptions Unit and/or the Exceptions Official will take the following actions:
* Date-stamp the Exceptions and assign a tracking number.
* Retain the envelope and any documents that accompany the Exceptions.
* Send a copy of the Exceptions letter and accompanying documents to the RTKL Official and to the Commission's legal counsel.
* Schedule and conduct a hearing, if so ordered by the Exceptions Official.
* Obtain the services of a court reporter or other method for recording testimony, if a hearing is ordered.
* Docket the receipt of evidence and other submittals.
* Maintain a record of the Commission's final determination.
* Prepare an official record in the event of an appeal to the Commonwealth Court.
If Exceptions are to be resolved without a hearing, the General Rules of Administrative Practice and Procedure as set forth at 1 Pa. Code, Chapters 31, 33, and 35 shall not apply.
The RTKL Official shall have 15 calendar days from the mailing date of the Exceptions to file a reply with the RTKL Exceptions Official. The reply must
*Be in writing.
* Be mailed or delivered to the RTKL Exceptions Official within 15 calendar days from the date the Exceptions were mailed.
* Be mailed to the Requester.
* Fully advise the Requester and the RTKL Exceptions Official as to the reasons for the RTKL Official's decision.
* Admit and/or deny specifically and in detail each material allegation of the Exceptions.
* State clearly and concisely the facts and matters of law relied upon.
The RTKL Exceptions Official shall not accept any pleadings, responses, or briefs from the RTKL Official or the Requester other than the original Exceptions of the Requester, and the reply of the RTKL Official, unless a hearing is held. A Requester does not have a legal right to a hearing on Exceptions. Upon receipt of the reply from the RTKL Official, the RTKL Exceptions Official shall rule on any pending requests for a hearing.
The RTKL Exception Official will issue the final determination of the Commission within 30 calendar days of the mailing date of the Exceptions, unless the Requester agrees to an extension.
X. Hearings
Prior to the issuance of a final determination, the Requester or the RTKL Official may request a hearing. The decision to grant a request for hearing rests solely in the discretion of the RTKL Exceptions Official, and may be conditioned on a waiver of the 30 calendar day time limit. The decision of the RTKL Exceptions Official is not appealable. The RTKL Exceptions Official may order a hearing if considered desirable, notwithstanding that neither the Requester nor the RTKL Official requested a hearing.
If a hearing is held, the identified records shall not be made part of the hearing record. The RTKL Official shall provide a description of the document either in writing or by means of oral testimony. All Exceptions hearings will be held in the Commission's Harrisburg office. Hearings will be conducted under the General Rules of Administrative Practice and Procedure, set forth at 1 Pa. Code Chapters 31, 33, and 35.
XI. Appeals to Commonwealth Court
If the RTKL Exceptions Official affirms the action of the RTKL Official in denying the Requester access to Records, the Requester may, within 30 days of the Mailing Date of the final determination appeal the decision to the Commonwealth Court. Both the Commission and the Requester may be subject to fines and court costs as prescribed by the RTKL.
XII. Retention and Disposal of Public Records
The RTKL does not modify any statute or regulation relating to the retention and disposition of Records by the Commission.
XIII. Redaction
The Commission may redact those portions of Record that are prohibited from disclosure and those portions that are exempt from disclosure. The portions of a Record that remain after redaction are subject to release.
XIV. Fees and Charges
As provided by Commission Regulation 603.040, 64 Pa. Code § 603.040, the charge for photocopies of Records provided pursuant to a RTKL request is $0.50 per single-side of a standard 8.5" x 11" sheet and the charge for certified copies is $5.00 per certification. There is no charge for PC Diskettes and CDs. The Commission will not charge postage for mailing Records by U. S. Mail. The charge for facsimile transmission of records is $2.00 per page. All other postage costs, such as the cost of overnight mail, shall be paid by the Requester.
If the cost of fulfilling a RTKL Request is expected to exceed $100, the RTKL Official may require prepayment of the costs. A Requester who is informed that his RTKL Request has been granted, but that prepayment is necessary due to the anticipated costs exceeding $100 shall have 30 calendar days to make payment to the Commission. If the Requester does not remit payment to or contact the Commission by the end of this period, the Commission will consider the RTKL Request to have been withdrawn and will close the file. Any future attempt to procure the identified records after this time must be done by initiating a new RTKL Request.
Alternative formats of this document may be available upon request. Call (717) 787-1165 or TDD Users: via AT&T Relay Center (800) 654-5984.
M. JOANNA CUMMINGS,
Secretary[Pa.B. Doc. No. 03-1686. Filed for public inspection August 22, 2003, 9:00 a.m.]
