December 2008, before the new law took effect,” de Bourbon wrote in an e-mail. “Rendell issued this Management
Directive — without discussing it with Terry Mutchler — that stated
Commonwealth agencies COULD charge for labor, search and retrieval fees as ‘necessarily incurred’ expenses. Although of course Mutchler had clearly come
out and stated that they could NOT.
a bit, saying that they would more or less take a “wait and see” attitude about
such fees, after taking time to study how much staff time would really be taken
up by RTK requests. But the Management Directive was never amended or
NOT charge staff time or other fees for retrieving records. I wouldn’t be
surprised if it ended up in Commonwealth Court, as obviously — the inane way
the law is written — this matter of ‘necessarily incurred’ expenses is wide
open for interpretation.”
Since the OOR is reinforcing its existing policy with its decision, de Bourbon said, “ultimately, it’s going to be a
power struggle. Will the courts recognize the OOR’s authority to establish this
policy? Or will it not? Will it take into consideration the legislative intent
of the law? Or will the court read it literally, and make its own
The answers to those questions will play key roles in the strength of the state’s new open records law.