5219 Shorecrest Drive
Middleton, WI 53562
J. Chadwick Schnee
Appeals Officer
Office of Open Records Commonwealth Keystone Building 400 North Street, Plaza Level Harrisburg, PA 17120-­0225
Re: Bagwell v. Dept. of State, OOR Dkt. No. AP 2014-­0401
March 25, 2014
Dear Mr. Schnee:
I’m writing to provide additional evidence and argument in support of my position in the above-­named appeal under the Right-­to-­Know Law (“RTKL”).
BACKGROUND & FACTS
On February 16, 2014, I sought copies of the following:
1.
the Articles of Incorporation for ALLEN STREET ASSOCIATES, INC., entity no. 996414
2.
the fictitious name registration for ALLEN STREET ASSOCIATES, entity no. 863476.
Agency Open Records Officer Heidi Barry responded by e-­mail on February 21, 2014, and provided electronic copies of the requested documents. Ms. Barry further provided an itemized invoice in the amount of $60.00 for responding to the request. The charges included:
1.
2.
3.
4.
$15.00 for “Corp Fees -­ Corp Copes Search Fee Re: ALLEN STREET ASSOCIATES, INC.”
$3.00 for “Corp Copies -­ Plain Copies Re: ALLEN STREET ASSOCIATES, INC.”
$6.00 for “Corp Copies -­ Plain Copies Re: ALLEN STREET ASSOCIATES, INC.”
$18.00 for “Corp Copies -­ Plain Copies Re: ALLEN STREET ASSOCIATES”
5.
6.
$15.00 for “Corp Fees -­ Corp Copes Search Fee Re: ALLEN STREET ASSOCIATES”
$3.00 for “Corp Copies -­ Plain Copies Re: ALLEN STREET ASSOCIATES”
This appeal challenges the lawfulness of the Department’s invoiced charges.
ARGUMENT
I.
The Department may not charge $15 “search fee” because neither the RTKL nor Title 15 authorize the fee.
Title 15 of the Pennsylvania Consolidated Statutes permits the Department to charge $15 for “preparing and providing a report of a record search.” While “Title 15 does not define the term record search,” the Department’s web site says “[r]ecord searches will provide a complete filing history of an entity.1” Therefore, a report of a “record search” would contain a historical list of the filing activity of a corporate entity. In this case, no such report was requested, nor was it provided. The Department admits in its brief that when a corporate record is requested, “[n]o separate report is issued.” The Department would have the Office of Open Records expand Title 15 to permit a $15 fee for retrieving a requested record. It’s argument ignores the plain meaning of the law -­ that a $15 fee may be charged only for providing a “report” of a record search. Nothing in Title 15 allows the Department to charge a fee solely for the retrieval of records.
II.
The Department may not charge $3.00 per page for disseminating electronic copies of a record. Title 15 also allows the Department to charge $3.00 for “[e]ach page of photocopy furnished.” 15 Pa. C.S. § 153(a)(10)(i). The Department asks that the OOR expand the statute to allow a $3.00-­per-­page fee for electronic copies as well. Again, the Department’s argument ignores the plain meaning of the statute. The charge may only apply to photocopies that are “furnished” to the requester. No photocopies were furnished in this case because the Department chose to disseminate the requested records electronically. Therefore, the Department may not charge a $3.00-­per-­page fee for the electronic copies of the records that it provided.
The Department correctly notes that an agency may recoup the cost of providing electronic copies of records if it must make copies of those records as a result of responding to the request. Daly v. Achievement House Charter, OOR Dkt. no. AP 2010-­0300. The Department further contends 1
http://www.portal.state.pa.us/portal/server.pt/community/corporations/12457/record_searches/571865
that it is allowed allowed to charge $3.00 for each copy made during the preparation of the record for electronic dissemination. Again, its argument ignores the plain meaning of 15 Pa. C.S. § 153(a)(10)(i). When a photocopy is not furnished to a requester, it may not charge $3.00 per page.
CONCLUSION
Because Title 15 does not allow the Department to seek the charges listed in its invoice, I respectfully request that the OOR REVERSE the Department's fee determination and order it to charge fees in accordance with applicable statutes.
Respectfully submitted,
Ryan Bagwell