PSBA 2021 Bulletin November/December PSBA 2021 Bulletin November/December - Page 57

it ’ s the law
Records in possession of a local agency are presumed public unless exempt under RTKL or other law or protected by a privilege , judicial order or decree .

it ’ s the law

The Right-to-Know Law and the internal predecisional deliberation exception

Most every school official is somewhat familiar with Pennsylvania ’ s Right-to-Know Law ( RTKL ). ( 65 P . S . §§ 67.101-67.3104 ). Under the RTKL , public agencies , such as school districts and intermediate units , are required to provide upon request “ public records ” maintained by the agency . Under the RTKL , a “ record ” is defined as :

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 . The term includes 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 . Section 101 , 65 P . S . § 67.102 .
There is a general presumption that a record is a “ public record ” if it is in the possession of a local agency . However , a “ public record ” is defined as a record , including a financial record , that : ( 1 ) does not fall under an exemption listed in Section 708 ( 65 P . S . § 67.708 ); ( 2 ) is not protected by a privilege ; or ( 3 ) is not protected from disclosure under federal or state law or regulation , or by judicial order or decree . 65 P . S . § 67.102 . Thus , records in possession of a local agency are presumed public unless exempt under RTKL or other law or protected by a privilege , judicial order or decree . 65 P . S . § 67.305 . If any of these exceptions apply , then the record is not subject to disclosure under the RTKL , and a request for access to such records may be denied .
As a preliminary matter , the courts have held that the statutory exceptions must be construed strictly so as not to subvert the RTKL ’ s purpose . See Payne v . Pennsylvania Dep ’ t of Health , 240 A . 3d 221 , 225 – 26
Records in possession of a local agency are presumed public unless exempt under RTKL or other law or protected by a privilege , judicial order or decree .
( Pa . Commw . Ct . 2020 ) citing Am . Civil Liberties Union v . Pa . State Police , ––– Pa . ––––, 232 A . 3d 654 , 656-657 ( 2020 ). Under Section 708 ( a )( 1 ) of the RTKL , “[ t ] he burden of proving that a record of a Commonwealth agency or local agency is exempt from public access shall be on the Commonwealth agency or local agency receiving a request by a preponderance of the evidence .” Payne v . Pennsylvania Dep ’ t of Health , citing 65 P . S . § 67.708 ( a )( 1 ).
One of the exceptions provided under the RTKL applies to records reflecting “ internal predecisional deliberations ” of an agency .
By Michael I . Levin PSBA General Counsel
November / December 2021 PSBA Bulletin 55