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Nov 1, 2012 - Oct 31, 2013
DEPARTMENT OF PUBLIC WELFARE
The Department includes entities administered by the Department, such as the Office of Long Term Living, the Governor’s Cabinet for People with Disabilities, the Advisory Committee to the Governor’s Cabinet for People with Disabilities, the Governor’s Council on Long-Term Living and the Governor’s Commission on Children and Families.
In promulgating these policies, the goal of the Department is to provide prompt public access to its public records while abiding by exemptions and protections in the RTKL to safeguard certain information, including confidential personal information of Department clients and other third persons.
A. The Department Will Only Accept Written Requests
The Department’s policy is that it will only accept written RTKL requests. The Department will not accept oral RTKL requests. Requests must be addressed to the Department’s Open Records Officer (the "AORO"). The written request to the Department under the RTKL must be addressed or delivered as follows:
Department of Public Welfare
B. Requests Must Invoke the RTKL and Be Reasonably Specific
All RTKL requests must indicate that the request is being made pursuant to the RTKL and be sufficiently specific to enable the Department to ascertain which records are being requested. If a federal or state statute or regulation conditions access to records or information upon the satisfaction of certain conditions and the requester’s written request does not set forth information that would permit the RTKL Office to determine whether the applicable conditions are satisfied, the RTKL Office can deny the request on the ground that it is lacking in specificity.
It is recommended that a request ask for a specific individual document, use the DPW website in crafting a written request and/or consult with Department staff.
C. Requests Must Provide a Name and Address for a Response
The general policy of the RTKL Office is that all of its responses will be sent via U.S. mail. Consequently, the general policy of the RTKL Office is that a written request must provide a name and a mailing address where the response may be sent. A written request that lacks a mailing address will be rejected by the RTKL Office unless the written request expressly asks that the RTKL Office use some alternative means of transmitting its response(s) to the recipient and provides a justification for that request that the RTKL Office finds is reasonable under the circumstances, and not unduly burdensome for the RTKL Office.
D. Requests Must Be From a Legal U.S. Resident
All RTKL requests must be from a legal U.S. resident. If a written RTKL request sets forth a mailing address within the United States, the RTKL Office will ordinarily assume that the requester is a legal resident of the United States. However, if any of the following circumstances exist, the presumption is that the requester is not a U.S. resident: The requester’s address is the address of a foreign embassy, consulate, or similar entity; the request lists a foreign postal address; the requester’s e-mail information indicates that the e-mail was sent from outside the United States; the requester’s facsimile transmission or telephone number indicates that the requester is using a telephone service from outside the United States. In any of the preceding situations, the policy of the Department is that the requester must also include proof that that he or she is a legal resident of the United States, and the requester’s non-compliance with this policy will be considered an admission that the requester is not a legal U.S. resident. The DPW reserves the right to ask any requester in any other circumstance for proof of U.S. residency.
E. Forms for RTKL Requests
RTKL requests may be made on the form available at the website of the Office of Open Records at: http://openrecords.state.pa.us, or the form designated by the Department and available at its website or at its RTKL office (attached as Appendix "A").
F. Additional Information May Be Required
In some instances, in order to establish a right of access to an identified record, a requester may be required to provide the Department with additional information or documents. In such instances, it is the responsibility of the requester to submit such information or documents, and the failure to do so is a valid ground for denying the request.
1. Individuals seeking access to records about themselves. If a request asks for access to protected records or information pertaining to an individual, and the requester states that he is that individual, the Department’s policy is to only accept that statement if the circumstances afford no cause for doubt, but to otherwise require that the requester provide additional proof of his or her identity.
2. Requesters seeking access to records about third persons. If the request indicates that the requester is seeking protected information about someone else, the Department’s policy is to require that the requester submit a signed waiver by which that other person has granted permission to the requester to have access, or some other documentation that would allow such access such as a court order.
3. Obligatory conditions. If a federal or state statute or regulation conditions access to records or information upon the satisfaction of certain conditions, and the requester’s written request does not set forth information that would permit the RTKL Office to determine whether the applicable conditions are satisfied, the RTKL Office can deny the request on the ground the requester’s access to the record or information is barred by the applicable law.
G. Modifications to a Pending RTKL Request
1. Modifications that reduce the scope of a pending RTKL request. If the only effect of a modification is to withdraw some or all of a pending RTKL request, the policy of the Department is to give that modification immediate effect.
2. Other modifications. The policy of the Department is that any other modification constitutes a withdrawal of the already-pending request, and a simultaneous substitution of a new request.
H. Business Hours
The Department has regular business hours from 8:00 a.m. to 4:00 p.m. on business days at its RTKL Office at Room 234 of the Health and Welfare Building. Any RTKL request received by the RTKL Office after the close of regular business hours shall be deemed to have been received by that office on the following business day.
I. RTKL Requests Are Public Records
RTKL requests received by the Department will be considered "public record" information by the Department and such requests may be made available for public access through its website.
The AORO may respond by providing a requester with access to inspect a record electronically or as otherwise maintained by the Department, either: 1) by providing access in the offices of the Department, if agreed to by the requester, 2) by sending a copy to the requester or 3) by notifying the requester that the record is available through publicly accessible electronic means and, if the requester writes to the agency within 30 days that the requester is unable or unwilling to access the information electronically, by then providing the records in paper format, upon payment for the same. Each of these options is a "response" for purposes of the RTKL, as is the Department's written notice to the requester granting, denying or partially granting and partially denying access to a record. The Department may send written responses to requesters by United States mail, by hand (in person or by delivery service), by facsimile or by e-mail.
Unless a longer period of time is needed and communicated to the requester by an "interim response" (as discussed in paragraph A below), the RTKL requires that the Department respond to an RTKL request within five business days. For purposes of determining the end of the five business day period, the day that a RTKL request is received is not counted. The first day of the five business day period is the Department's next business day.
A. Interim Responses
The Department must provide a final response to a RTKL request within 5 business days unless one or more specific conditions are satisfied and the AORO gives the requester written notice that additional time will be required. That notice is referred to as an "interim response."
The AORO may send an interim response if any of the following applies:
1. The RTKL request requires redaction of a public record;
2. The RTKL request requires retrieval of a record from a remote location;
3. A response within the 5 business day period cannot be accomplished due to bona fide staffing limitations, which limitations must be specified in the interim response;
4. A legal review is necessary to determine whether the record requested is subject to access under the Act;
5. The requester has not complied with the Department’s policies regarding access to public records;
6. The requester has not complied with a demand for prepayment of fees, which are required to fulfill the RTKL request and which are estimated to exceed $100; further, if prepayment of fees is required by the Department, the time period for response shall be tolled from the time the demand for payment is made until such time as payment is actually received; or
7. The extent or nature of the request precludes a response within the required time period.
An interim response must: 1) be sent to the requester on or before the last day of the 5 business day period; 2) state that the request is being reviewed and the reason for the review; 3) give an estimate of applicable fees owed when the record becomes available; and 4) state a reasonable date that a response is expected to be provided. This date must not be more than 30 calendar days from the end of the 5 business day period.
If the date of an expected response is in excess of 30 days following the five days allowed for pursuant to 65 P.S. § 67.901, the request will be deemed denied unless the requester has agreed in writing to the date specified in the notice.
The Department will send an interim response when the estimated fee for responding to the request is in excess of $100. Once the estimated payment is received, the Department will proceed to: 1) make a final determination as to what records, if any, are public records under the RTKL; 2) begin search and retrieval of those records; 3) perform any required redaction; and 4) advise the requester, within 30 days, as to a date by when any responsive public records will be produced. Failure to make to estimated payment by the date required by the agency in its interim response will result in the request being deemed withdrawn.
B. Final Responses
There are three possible final responses. Either the request is: 1) granted; 2) denied; or 3) granted in part and denied in part. The failure to make a timely response is deemed to be a denial.
If a written request is denied in whole or in part, the Department will issue a final written response that will include an explanation of the procedure for the requester to appeal, if the requester chooses to do so. The written denial will also set forth the specific reasons for the denial, including a citation of supporting legal authority. If the denial is the result of a determination that that the record requested is exempt from disclosure, the specific reasons for the Department’s determination shall be included.
Non-production of records due to the fact that a good faith search by the Department does not produce any responsive records is not a denial of access.
The Department will not deny access to a public record based upon the fact that portions of the record are not public records and, as a result, not subject to disclosure. The Department will redact the portions of a public record that are not public records and produce the portions that are public records.
The following policies apply regarding redaction of information pertaining to persons applying for or receiving social services from the Department. "Social services" are those services that are provided in whole or in part by the Department, including any assistance, benefits, services, treatments, or training provided to any person but not expressly included in the definition of "social services" set forth in the RTKL.
1. Protected Health Information.
If a document is subject to the HIPAA regulations at 45 CFR § 164.514 and is not a public record, the policy of the Department is to deny access to the document in its entirety. If the document is a public record that regulation requires that the Department redact require that the following information before releasing it to a requester:
a. Name of the patient / client
b. All geographic subdivisions smaller than a state, including all of the following: Street address; City; County; Precinct; Zip Code, but the first 3 digits can be disclosed.
c. All elements of dates, except year for dates directly related to the individual, including all of the following: Birth date; Admission date; Discharge date; Date of death; Specific age, if over 89 years old.
d. Telephone numbers
e. Fax numbers
f. E-mail addresses
g. Social security numbers
h. Medical record numbers
i. Health plan beneficiary numbers
j. Account numbers
k. Certificate / license numbers
l. Vehicle identifiers and serial numbers (including license plates)
m. Device identifiers and serial numbers
n. Web Universal Resource Locators (URLs)
o. Internet Protocol (IP) address numbers
p. Biometric identifiers, including finger and voice prints
q. Any other unique identifying number, characteristic, or code, except a code number assigned to allow "de-identified" information to be "re-identified," if the code number conforms to 45 CFR § 514.514(c).
2. Information about relatives. The HIPAA regulations require that the same information be removed if it identifies the relatives of a patient / client.
3. Information about household members. The HIPAA regulations require that the same information be removed if it identifies the household members of a patient / client.
4. Information about employers. The HIPAA regulations require that the same information be removed if it identifies the employers of a patient / client.
5. The catch-all provision. The HIPAA regulations also require the redaction of information that "could be used alone or in combination with other information to identify an individual who is a subject of the information."
6. Other protected information. If a document contains protected information about an applicant or recipient, or about a relative, household member or employers of such person, but is not subject to the HIPAA regulations at 45 CFR § 164.514, the Department’s policy is to refuse the request in its entirety if the document is not a "public record" and, if the document is a public record, to redact all protected information contained therein in accordance with the principles illustrated by the HIPAA regulations.
The Department may provide a requester with access to inspect a record electronically or as otherwise maintained by the Department, either: 1) by providing access in the offices of the Department, if agreed to by the requester, 2) by sending a copy to the requester or 3) by notifying the requester that the record is available through publicly accessible electronic means and, if the requester writes to the agency within 30 days that the requester is unable or unwilling to access the information electronically, by then providing the records in paper format, upon payment for the same.
The Department will provide a public record to a requester in the medium requested if the record exists in that medium. Otherwise, the public record must be provided in the medium in which it exists. If a public record only exists in one medium, the Department is not required to convert that public record to another medium, except that if the public record is only available in an electronic form, the Department must print it out on paper if the requester so requests.
The Department is not required to create a public record that does not already exist, nor is it required to compile, maintain, format, or organize a public record in a manner in which the Department does not currently do so.
1. Access to Electronic Records
a. Publicly Accessible Records
If a record is accessible through any publicly accessible electronic means, it is an adequate response for the Department to notify the requester of the record’s availability through that means. If the requester is unwilling or unable to access the record electronically, the requester has a right to a paper version of the record. In order to exercise that right, the requester must submit a written request to the Department in compliance with 65 P.S. § 67.704(b)(2). Many records of the Department are publicly accessible through the Internet: The Department maintains a publicly accessible website at www.dpw.state.pa.us. Many of the Department’s contracts are available through a website maintained by the Department of the Treasury at www.patreasury.org. The RTKL does not require access to any computer either of an agency or [an] individual agency employee. Pursuant to that provision, the policy of the Department’s RTKL Office is that it will not grant direct access to any electronic record of the Department except to the extent that access can be had by means of the publicly accessible websites above.
b. Electronic Records Not Publicly Accessible
If a requester seeks access to an electronic record and the Department’s RTKL Office determines that the electronic record is a "public record," it will arrange for a copy of the record to be created and made available to the requester, in accordance with these policies.
An electronic record will be provided to the requestor attached to an email message if possible. If the file containing the record is too large to be provided to the requestor attached to an email message, the record will be provided on a CD upon payment of the fee set forth in the Department’s final response.
c. Access to Department Databases
The policy of the Department is to deny any requests for direct access to Department databases. If the information contained in the database is a public record, access to the information may be provided by (i) a copy of its contents, in the same medium and format in which the database currently exists, and compiled, maintained and organized in the existing manner; or (ii) a paper copy of the same data. If the data set sought by a requester cannot be drawn from a single database, the policy of the Department is to refuse the request on the basis that it would require the creation of a record that does not currently exist. However, if information in a Department database is exempt or otherwise not to be produced under the RTKL, the Department has discretion to produce the information if the request does not invoke the RTKL.
2. Access to Non-Electronic Records
The Department's RTKL Office may provide direct access to its non-electronic records at its location in the Health and Welfare Building, Harrisburg, Pennsylvania. Requesters may be supervised while reviewing records. Records may not be removed from the RTKL Office and an appointment must be made during business hours for access.
If the requester asks in writing for physical access to records at a different, specified location, and if the Department’s AORO determines that access at that location is no more disruptive to the activities of the RTKL Office and the affected program office than would be access in the RTKL Office, the AORO may grant the request.
Appropriate conduct is required in the RTKL Office. Examples of inappropriate conduct include, but are not limited to: shouting and/or unnecessarily loud speaking; use of profanity; verbal abuse of RTKL Office staff; grabbing or touching RTKL Office staff; defacing materials, removing or attempting to remove any records or other items, playing music in a way that is audible to others. Use of the RTKL Office will not be permitted if there is or has been prior inappropriate conduct or if requisite fees have not been paid. No eating or drinking is permitted in the RTKL Office.
E. Duplication of Public Records
1. Department Photocopier Use. So long as the requester agrees to pay any applicable duplication fee, and can make immediate payment by check, a requester will be permitted reasonable use of the photocopier of the RTKL Office, but only for the purpose of making photocopies, and only when that device is not needed by RTKL Office staff.
2. Non-Department Devices or Electronic Equipment. At his or her own risk and expense, a requester may bring into the RTKL Office any of the following devices, so long as the device can be transported in and out without disruption of the operations of the RTKL Office: a photocopier; a laptop computer or a scanner. It is unlawful for any person to take photographs within the Health and Welfare Building. Consequently, unless the requisite permission has been obtained in advance, requesters are not permitted to bring cameras of any sort, including digital cameras, film cameras, cameras that shoot still photographs, cameras that capture moving images into the Health and Welfare Building. Prior permission is also required to bring any of the following into the Access Room: tape recorders, video recording devices, radios, televisions, space heaters, and coffee makers. Requesters are permitted to bring cell phones into the Health and Welfare Building, but only on the condition that no still or moving photographs are taken.
When a request is denied or deemed denied, whether in whole or in part, the requester may file an appeal with the Office of Open Records (OOR), where it will be assigned to an Appeals Officer. This appeal must be filed within 15 business days of the denial or deemed denial. The appeal must state the grounds upon which the requester asserts that the record is public, and should address any grounds stated by the Department for delaying or denying the request. The appeal shall be sent to the OOR at the address set forth below and simultaneously to the agency AORO, in the same manner as the appeal is sent to the OOR (e-mail, fax, mail or hand delivery) with: 1) the agency response, 2) the RTKL request and 3) the appeal form that is available on the OOR website at https://www.dced.state.pa.us/public/oor/appealformgeneral.pdf:
The Commonwealth Office of Open Records
Commonwealth Keystone Building
400 North Street, Plaza Level
Harrisburg, PA 17120-0225
A person other than the Department or the requester, with a direct interest in the record that is subject to an appeal, has 15 days following actual knowledge of the appeal, but no later than the date the Appeals Officer issues an order, to file a written request to provide information or to appear before the Appeals Officer in support of the requester’s or the Department’s position in the appeal. The Appeals Officer may, but needs not, grant the request.
For further information on appeals, it is suggested that the requester review the website of the Office of Open Records.
Applicable fees to be charged by the Department under the RTKL are as follows:
A. Fees Determined by the Office of Open Records
Under the RTKL, the Office of Open Records has the authority to establish two fees for Commonwealth agencies: Duplication, 65 P.S. §67.1307(b) and Enhanced Electronic Access (an agency may establish user fees, subject to approval by the Office of Open Records), 65 P.S. 65 P.S. §67.1307 (e).
The fees for duplication are established by the Office of Open Records, as posted on its website at http://openrecords.state.pa.us. Unless otherwise directed by statute, the Department will charge $.25 per page for duplication, although on-site publication may be at a reduced rate of $.15, at the discretion of the Department.
Pursuant to this agency policy, an agency may waive duplication fees for 20 pages or less. Duplication charges are to be paid for any duplication in excess of 20 pages.
Requests for waiver of the duplication fee will be considered on a case-by-case basis. A person seeking such a waiver must explain why granting the waiver would be in the public interest.
B. Specialized Fees
1. The Department will charge $1 per copy for certified copies, when requested by the requester.
2. The Department will charge the actual cost for postage, facsimile/microfiche or other media, as well as for specialized documents, except that postage fees will be waived for postage that costs under $1.00.
3. Special rules apply to fees for transcripts of administrative proceedings:
(i) Prior to an adjudication becoming "final, binding and non-appealable," transcripts may be requested through an agency, however the stenographer or court reporter is permitted to charge the regular fee for this service.
(ii) Following an adjudication becoming "final, binding and non-appealable," a request for the transcript shall be treated like any other request for a record and the usual duplication fee of up to $.25 per page will be charged.
C. Reasonable and Necessarily Incurred Costs
As expressly provided by 65 P.S. §67.1307(g), the Department has the authority to charge requesters reasonable fees for necessarily incurred costs. The Department will determine and charge such fees on a case by case basis.
No charge shall be made for agency or legal review of the record to see whether the requested records are public records that are subject to production.
If the estimated fees that are required to fulfill the RTKL request exceed $100, the requester must pay the estimated amount in advance, either by certified check or by ordinary check, which must first have cleared to be considered received by the Department. The demand for prepayment will specify a reasonable period of time in which the requester must make such prepayment. Failure to make to estimated payment by the date required by the Department in its interim response will result in the request being deemed withdrawn.
All applicable fees must be paid in order to receive access to the record requested. 65 P.S. §67.901. Any requester who has unpaid amounts outstanding to the Department or to any agency under the Governor’s jurisdiction, in relation to RTKL requests where production was made by any such agency, will not be granted access to records under other RTKL requests until such prior amounts due have been paid in full. In instances where an estimated fee has not already been paid, as is appropriate for records whose production is estimated to cost over $100, an agency has the discretion to produce the records and invoice for the amount due or to require payment prior to production.
V. ACCESS TO RECORDS OUTSIDE OF RTKL REQUESTS
RTKL requests may be denied because the records requested are not public records or do not exist. However, requesters may then ask for the record outside of the RTKL. In some circumstances, the Department will create records that do not exist or may produce non-public records that are not required to be produced under the RTKL.
To request such access to non-public or non-existent records, a requester should file a Petition for Discretionary Access to Records to the Department, as follows:
A. Program Office Review
Upon receiving a Petition for Discretionary Access to Records, the RTKL Office will forward the Petition to the applicable program office(s) for review. The result of that non-adjudicatory review will be a written statement by the program office that addresses the following points:
1. General response. Whether the program office supports or opposes the request.
2. Analysis of the competing public interests. The program office will provide a written statement that addresses the competing public interests.
3. Predecisional deliberative input. The program office may, in its discretion, include in its written analysis a predecisional deliberative recommendation that is not intended for public release.
4. Contact with third persons. If granting the Petition would result in the disclosure of information about any third person, the program office has the discretion to contact any such person, for the purpose of obtaining input from that person regarding the request. The program office may include such information in its written analysis.
5. Submissions by third persons. In the event that a third person submits a written statement (or other documents) in support or opposition to the Petition, these materials will be included as an appendix to the written analysis of the program office.
B. Submission to the Secretary
When the program office has completed its written analysis, it will provide that document to the RTKL Office, which will forward that document and the Petition to the Office of the Secretary. If the Secretary determines that additional information is required, the Secretary will send the materials back to the RTKL Office with appropriate instructions. Otherwise, the Secretary will address the Petition in due course.
C. Written decision of the Secretary
The process will be resolved by a written decision by the Secretary. That decision may grant the Petition, deny the Petition, or grant it in part and deny it in part.
Attachment A - Right-To-Know Law Request Form