From the PNA Legal Hotline

By Teri Henning, General Counsel
and Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: I want to look at applications filed with the Department of Environmental Protection (DEP). Can the DEP deny my request?

A: No. The Clean Streams Act makes it clear that records and documents of the DEP are public records. Nothing in the Right to Know Law changes this result.

Section 607 of the Clean Streams Act, 35 P.S. § 691.1 et seq. governs public access to records of DEP. It states:

“All papers, records, and documents of the department, and applications for permits pending before the department, shall be public records open to inspection during business hours: Provided, however, that information which pertains only to the analysis of the chemical and physical properties of the coal (excepting information regarding such mineral or elemental content which is potentially toxic in the environment) shall be kept confidential and not made a matter of public record. Copies of all such public records and the rules and regulations of the department shall be received in evidence in all courts and elsewhere, subject to the rules of law concerning evidence.” 35 P.S. § 691.607.

Section 306 of the Right to Know Law explicitly provides that its provisions do not modify or supersede other laws which govern the public or non-public nature of records. Additionally, section 3101.1 of the RTKL states that when the provisions of the RTKL conflict with other laws, the RTKL does not apply

In this case, the Clean Streams Act contains a provision governing public access to records. The RTKL and its exceptions are inapplicable and cannot be used to deny access because the
Clean Streams Act’s provisions regarding public access to records supersede the RTKL.