Section 708. Exceptions for public records.

2008-12-15T10:52:00.000-08:00

(a) Burden of proof. —
(1) The 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.
(2) The burden of proving that a legislative record is exempt from public access shall be
on the legislative agency receiving a request by a preponderance of the evidence.
(3) The burden of proving that a financial record of a judicial agency is exempt from
public access shall be on the judicial agency receiving a request by a preponderance of
the evidence.
(b) Exceptions.
Except as provided in subsections (c) and (d), the following are exempt from access by a
requester under this act:
(1) A record the disclosure of which:
(i) would result in the loss of Federal or State funds by an agency or the Commonwealth;
or
(ii) would be reasonably likely to result in a substantial and demonstrable risk of physical
harm to or the personal security of an individual.
(2) A record maintained by an agency in connection with the military, homeland security,
national defense, law enforcement or other public safety activity that if disclosed would
be reasonably likely to jeopardize or threaten public safety or preparedness or public
protection activity or a record that is designated classified by an appropriate Federal or
State military authority.
(3) A record, the disclosure of which creates a reasonable likelihood of endangering the
safety or the physical security of a building, public utility, resource, infrastructure,
facility or information storage system, which may include:
(i) documents or data relating to computer hardware, source files, software and system
networks that could jeopardize computer security by exposing a vulnerability in
preventing, protecting against, mitigating or responding to a terrorist act;
(ii) lists of infrastructure, resources and significant special events, including those defined
by the Federal Government in the National Infrastructure Protections, which are deemed
critical due to their nature and which result from risk analysis; threat assessments;
consequences assessments; antiterrorism protective measures and plans; counterterrorism
measures and plans; and security and response needs assessments; and
(iii) building plans or infrastructure records that expose or create vulnerability through
disclosure of the location, configuration or security of critical systems, including public
utility systems, structural elements, technology, communication, electrical, fire
suppression, ventilation, water, wastewater, sewage and gas systems.
(4) A record regarding computer hardware, software and networks, including
administrative or technical records, which, if disclosed, would be reasonably likely to
jeopardize computer security.
(5) A record of an individual’s medical, psychiatric or psychological history or disability
status, including an evaluation, consultation, prescription, diagnosis or treatment; results
of tests, including drug tests;
enrollment in a health care program or program designed for participation by persons
with disabilities, including vocation rehabilitation, workers’ compensation and
unemployment compensation; or related information that would disclose individually
identifiable health information.
(6) (i) The following personal identification information:
(A) A record containing all or part of a person’s Social Security number; driver’s license
number; personal financial information; home, cellular or personal telephone numbers;
personal email addresses; employee number or other confidential personal identification
number.
(B) A spouse’s name; marital status, beneficiary or dependent information.
(C) The home address of a law enforcement officer or judge.
(ii) Nothing in this paragraph shall preclude the release of the name, position, salary,
actual compensation or other payments or expenses, employment contract, employmentrelated
contract or agreement and length of service of a public official or an agency
employee.
(iii) An agency may redact the name or other identifying information relating to an
individual performing an undercover or covert law enforcement activity from a record.
(7) The following records relating to an agency employee:
(i) A letter of reference or recommendation pertaining to the character or qualifications of
an identifiable individual, unless it was prepared in relation to the appointment of an
individual to fill a vacancy in an elected office or an appointed office requiring Senate
confirmation.
(ii) A performance rating or review.
(iii) The result of a civil service or similar test administered by a Commonwealth agency,
legislative agency or judicial agency. The result of a civil service or similar test
administered by a local agency shall not be disclosed if restricted by a collective
bargaining agreement. Only test scores of individuals who obtained a passing score on a
test administered by a local agency may be disclosed.
(iv) The employment application of an individual who is not hired by the agency.
(v) Workplace support services program information.
(vi) Written criticisms of an employee.
(vii) Grievance material, including documents related to discrimination or sexual
harassment.
(viii) Information regarding discipline, demotion or discharge contained in a personnel
file. This subparagraph shall not apply to the final action of an agency that results in
demotion or discharge.
(ix) An academic transcript.
(8) (i) A record pertaining to strategy or negotiations relating to labor relations or
collective bargaining and related arbitration proceedings. This subparagraph shall not
apply to a final or executed contract or agreement between the parties in a collective
bargaining procedure.
(ii) In the case of the arbitration of a dispute or grievance under a collective bargaining
agreement, an exhibit entered into evidence at an arbitration proceeding, a transcript of
the arbitration or the opinion. This subparagraph shall not apply to the final award or
order of the arbitrator in a dispute or grievance procedure.
(9) The draft of a bill, resolution, regulation, statement of policy, management directive,
ordinance or amendment thereto prepared by or for an agency.
(10) (i) A record that reflects:
(A) The internal, predecisional deliberations of an agency, its members, employees or
officials or predecisional deliberations between agency members, employees or officials
and members, employees or officials of another agency, including predecisional
deliberations relating to a budget recommendation, legislative proposal, legislative
amendment, contemplated or proposed policy or course of action or any research, memos
or other documents used in the predecisional deliberations.
(B) The strategy to be used to develop or achieve the successful adoption of a budget,
legislative proposal or regulation.
(ii) Subparagraph (i)(A) shall apply to agencies subject to 65 Pa.C.S. Ch. 7 (relating to
open meetings) in a manner consistent with 65 Pa.C.S. Ch. 7. A record which is not
otherwise exempt from access under this act and which is presented to a quorum for
deliberation in accordance with 65 Pa.C.S. Ch. 7 shall be a public record.
(iii) This paragraph shall not apply to a written or Internet application or other document
that has been submitted to request Commonwealth funds.
(iv) This paragraph shall not apply to the results of public opinion surveys, polls, focus
groups, marketing research or similar effort designed to measure public opinion.
(11) A record that constitutes or reveals a trade secret or confidential proprietary
information.
(12) Notes and working papers prepared by or for a public official or agency employee
used solely for that official’s or employee’s own personal use, including telephone
message slips, routing slips and other materials that do not have an official purpose.
(13) Records that would disclose the identity of an individual who lawfully makes a
donation to an agency unless the donation is intended for or restricted to providing
remuneration or personal tangible benefit to a named public official or employee of the
agency, including lists of potential donors compiled by an agency to pursue donations,
donor profile information or personal identifying information relating to a donor.
(14) Unpublished lecture notes, unpublished manuscripts, unpublished articles, creative
works in progress, research-related material and scholarly correspondence of a
community college or an institution of the State System of Higher Education or a faculty
member, staff employee, guest speaker or student thereof.
(15) (i) Academic transcripts
(ii) Examinations, examination questions, scoring keys or answers to examinations. This
subparagraph shall include licensing and other examinations relating to the qualifications
of an individual and to examinations given in primary and secondary schools and
institutions of higher education.
(16) A record of an agency relating to or resulting in a criminal investigation, including:
(i) Complaints of potential criminal conduct other than a private criminal complaint.
(ii) Investigative materials, notes, correspondence, videos and reports.
(iii) A record that includes the identity of a confidential source or the identity of a suspect
who has not been charged with an offense to whom confidentiality has been promised.
(iv) A record that includes information made confidential by law or court order.
(v) Victim information, including any information that would jeopardize the safety of the
victim.
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of a criminal investigation, except the filing
of criminal charges.
(B) Deprive a person of the right to a fair trial or an impartial adjudication.
(C) Impair the ability to locate a defendant or codefendant.
(D) Hinder an agency’s ability to secure an arrest, prosecution or conviction.
(E) Endanger the life or physical safety of an individual. This paragraph shall not apply to
information contained in a police blotter as defined in 18 Pa.C.S. § 9102 (relating to
definitions) and utilized or maintained by the Pennsylvania State Police, local, campus,
transit or port authority police department or other law enforcement agency or in a traffic
report except as provided under 75 Pa.C.S. § 3754(b) (relating to accident prevention
investigations).
(17) A record of an agency relating to a noncriminal investigation, including:
(i) Complaints submitted to an agency.
(ii) Investigative materials, notes, correspondence and reports.
(iii) A record that includes the identity of a confidential source, including individuals
subject to the act of December 12, 1986 (P.L.1559, No.169), known as the Whistleblower
Law.
(iv) A record that includes information made confidential by law.
(v) Work papers underlying an audit.
(vi) A record that, if disclosed, would do any of the following:
(A) Reveal the institution, progress or result of an agency investigation, except the
imposition of a fine or civil penalty, the suspension, modification or revocation of a
license, permit, registration, certification or similar authorization issued by an agency or
an executed settlement agreement unless the agreement is determined to be confidential
by a court.
(B) Deprive a person of the right to an impartial adjudication.
(C) Constitute an unwarranted invasion of privacy.
(D) Hinder an agency’s ability to secure an administrative or civil sanction.
(E) Endanger the life or physical safety of an individual.
(18) (i) Records or parts of records, except time response logs, pertaining to audio
recordings, telephone or radio transmissions received by emergency dispatch personnel,
including 911 recordings.
(ii) This paragraph shall not apply to a 911 recording, or a transcript of a 911 recording, if
the agency or a court determines that the public interest in disclosure outweighs the
interest in nondisclosure.
(19) DNA and RNA records.
(20) An autopsy record of a coroner or medical examiner and any audiotape of a
postmortem examination or autopsy, or a copy, reproduction or facsimile of an autopsy
report, a photograph, negative or print, including a photograph or videotape of the body
or any portion of the body of a deceased person at the scene of death or in the course of a
postmortem examination or autopsy taken or made by or caused to be taken or made by
the coroner or medical examiner. This exception shall not limit the reporting of the name
of the deceased individual and the cause and manner of death.
(21) (i) Draft minutes of any meeting of an agency until the next regularly scheduled
meeting of the agency.
(ii) Minutes of an executive session and any record of discussions held in executive
session.
(22) (i) The contents of real estate appraisals, engineering or feasibility estimates,
environmental reviews, audits or evaluations made for or by an agency relative to the
following:
(A) The leasing, acquiring or disposing of real property or an interest in real property.
(B) The purchase of public supplies or equipment included in the real estate transaction.
(C) Construction projects.
(ii) This paragraph shall not apply once the decision is made to proceed with the lease,
acquisition or disposal of real property or an interest in real property or the purchase of
public supply or construction project.
(23) Library and archive circulation and order records of an identifiable individual or
groups of individuals.
(24) Library archived and museum materials, or valuable or rare book collections or
documents contributed by gift, grant, bequest or devise, to the extent of any limitations
imposed by the donor as a condition of the contribution.
(25) A record identifying the location of an archeological site or an endangered or
threatened plant or animal species if not already known to the general public.
(26) A proposal pertaining to agency procurement or disposal of supplies, services or
construction prior to the award of the contract or prior to the opening and rejection of all
bids; financial information of a bidder or offeror requested in an invitation for bid or
request for proposals to demonstrate the bidder’s or offeror’s economic capability; or the
identity of members, notes and other records of agency proposal evaluation committees
established under 62 Pa.C.S. § 513 (relating to competitive
sealed proposals).
(27) A record or information relating to a communication between an agency and its
insurance carrier, administrative service organization or risk management office. This
paragraph shall not apply to a contract with an insurance carrier, administrative service
organization or risk management office or to financial records relating to the provision of
insurance.
(28) A record or information:
(i) identifying an individual who applies for or receives social services; or
(ii) relating to the following:
(A) the type of social services received by an individual;
(B) an individual’s application to receive social services, including a record or
information related to an agency decision to grant, deny, reduce or restrict benefits,
including a quasi-judicial decision of the agency and the identity of a caregiver or others
who provide services to the individual; or
(C) eligibility to receive social services, including the individual’s income, assets,
physical or mental health, age, disability, family circumstances or record of abuse.
(29) Correspondence between a person and a member of the General Assembly and
records accompanying the correspondence which would identify a person that requests
assistance or constituent services. This paragraph shall not apply to correspondence
between a member of the General Assembly and a principal or lobbyist under 65 Pa.C.S.
Ch. 13A (relating to lobbyist disclosure).
(30) A record identifying the name, home address or date of birth of a child 17 years of
age or younger.
(c) Financial records. — The exceptions set forth in subsection (b) shall not apply to
financial records, except that an agency may redact that portion of a financial record
protected under subsection (b)(1), (2), (3), (4), (5), (6), (16) OR (17). An agency shall not
disclose the identity of an individual performing an undercover or covert law
enforcement activity.
(d) Aggregated data. — The exceptions set forth in subsection (b) shall not apply to
aggregated data maintained or received by an agency, except for data protected under
subsection (b)(1), (2), (3), (4) or (5).
(e) Construction. — In determining whether a record is exempt from access under this
section, an agency shall consider and apply each exemption separately.

Exceptions For Public Records

Section 708. Exceptions for public records.