The opinion of the court was delivered by: Senior Judge Flaherty
Submitted: August 13, 2010
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
The State Employees' Retirement System (SERS) petitions for review from a decision of the Office of Open Records (OOR) which granted the appeal of Tracie Mauriello and the Pittsburgh Post-Gazette (collectively, Requestors) and ordered SERS to furnish the requested information to Requestors at a rate of $0.25 per page within thirty days, pursuant to the Right to Know Law (RTKL).*fn1 We affirm.
On November 19, 2009, Requestors submitted a RTKL request to SERS seeking the years of service, class of service and total compensation for the last three years of service for the employees' they had listed. The Requestors asked that they be notified if the cost to fulfill the request would exceed $50.00.
On November 20, 2009, via telephone, SERS advised the Requestors that the cost to fulfill the Request would be $77.00. The Requestors asked that SERS take no further action to provide the information. The Requestors then asked SERS to reconsider its position on the fee and if it would not, to prepare a formal response so that Requestors could file an appeal.
On November 30, 2009, Robert Gentzel, Agency Open Records Officer for SERS, sent Requestors a letter advising that SERS was prepared to fulfill the request without requiring pre-payment, but stated that they would send a bill with the response. SERS advised that its policy is to charge a fee for:
costs necessarily incurred in responding to RTKL requests as permitted by the RTKL. See 65 P.S. §67.1307(g).[*fn2 ] The State Employees' Retirement Board's Right-to-Know Law Policy states that applicable fees shall be determined by the Open-Records Officer on a case-by-case basis. Fees are based upon the applicable cost to SERS and include, "Employee time for compiling and printing requested records (based on hourly wage and benefits)" and "Employee time for compiling electronic disk of requested records (based on wage and benefits)." Commonwealth of Pennsylvania State Employees' Retirement System Board Second Amended and Restated Right-to-Know Law Policy, Section X. Fees, (G) and (H). SERS does not charge for time spent to determine whether a record is a "public record."
SERS Response to Requestors, November 30, 2009, at 1-2.*fn3
On December 9, 2009, Requestors timely appealed to the OOR, challenging the fees charged. On December 22, 2009, SERS responded that it had necessarily incurred costs and was required to charge for those costs pursuant to the State Employees' Retirement Code, 71 Pa. C.S. §§5101-5956 (Retirement Code), as not charging a labor fee would violate its fiduciary responsibility to operate the Fund for the exclusive benefit of its members, and Section 401 of the Internal Revenue Code, 26 U.S.C. §401 (IRC), as failure to operate for the exclusive benefit of its members could jeopardize SERS' qualification and the favorable tax treatment afforded its members. SERS further stated that Requestors were aware of and had paid all fees that SERS had charged in the past for costs incurred in complying with other requests submitted.
[C]harging for the time it takes an agency employee to respond to a request during normal business hours is not a proper charge to pass along to a requester. SERS is statutorily required to provide public records in response to a RTKL request. Arguing that doing so without recouping the cost jeopardizes SERS' qualification, and consequently, the favorable tax treatment afforded its members in essence is arguing that SERS is not required to comply with a statutory mandate. The RTKL is clear that an agency cannot charge a fee except for those expressly stated. Employee time spent during their regular day in the course of their duties to provide records in response to RTKL requests when directed to do so is not a necessarily incurred cost but rather a routine expense for complying with RTKL mandates.
If, in fact, SERS compiled records in a manner it is not required to by section 705, it is not reasonable for SERS to pass that expense on to the Requester. An agency cannot circumvent the fee restriction by unilaterally creating a record from existing records and then charging more than the fee per page allowed under the RTKL. Therefore, printouts of the records containing the requested information must be provided at a rate of $0.25 per page.
OOR Final Determination, January 11, 2010, at 5-6. The OOR granted Requestors' appeal and required SERS to furnish the information within thirty ...