SENATE AMENDED
PRIOR PRINTER'S NOS. 172, 613, 3762 PRINTER'S NO. 4579
No. 126 Session of 2005
INTRODUCED BY GODSHALL, NICKOL, VEON, PHILLIPS, CALTAGIRONE,
CLYMER, CRAHALLA, EACHUS, GEIST, HENNESSEY, KILLION, LEH,
O'NEILL, PALLONE, RUBLEY, HARPER, YOUNGBLOOD, GOODMAN AND
DENLINGER, FEBRUARY 1, 2005
SENATOR WENGER, APPROPRIATIONS, IN SENATE, RE-REPORTED AS
AMENDED, SEPTEMBER 19, 2006
AN ACT
1 Amending Title 71 (State Government) of the Pennsylvania
2 Consolidated Statutes, defining "alternative investment" AND <--
3 "ALTERNATIVE INVESTMENT VEHICLE"; and further providing for
4 administrative duties of the State Employees' Retirement
5 Board.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Section 5102 of Title 71 of the Pennsylvania
9 Consolidated Statutes is amended by adding a definition <--
10 DEFINITIONS to read: <--
11 § 5102. Definitions.
12 The following words and phrases as used in this part, unless
13 a different meaning is plainly required by the context, shall
14 have the following meanings:
15 * * *
16 "Alternative investment." A private equity or venture <--
17 capital investment. AN INVESTMENT IN A PRIVATE EQUITY FUND, <--
1 PRIVATE DEBT FUND, VENTURE FUND, REAL ESTATE FUND, HEDGE FUND OR
2 ABSOLUTE RETURN FUND.
3 "ALTERNATIVE INVESTMENT VEHICLE." A LIMITED PARTNERSHIP,
4 LIMITED LIABILITY COMPANY OR ANY OTHER LEGAL VEHICLE FOR
5 AUTHORIZED INVESTMENTS UNDER SECTION 5931(I) (RELATING TO
6 MANAGEMENT OF FUND AND ACCOUNTS) THROUGH WHICH THE SYSTEM MAKES
7 AN ALTERNATIVE INVESTMENT.
8 * * *
9 Section 2. Section 5902(e) of Title 71 is amended to read:
10 § 5902. Administrative duties of the board.
11 * * *
12 (e) Records.--
13 (1) The board shall keep a record of all its proceedings
14 which shall be open to inspection by the public[.], except as
15 otherwise provided in this part or by other law.
16 (2) Any records RECORD, material or data received, <--
17 prepared, used or retained by the board or its employees,
18 investment professionals or agents relating to investments <--
19 shall not be required to be open to inspection by the public
20 and shall not AN INVESTMENT SHALL NOT constitute a public <--
21 record SUBJECT TO PUBLIC INSPECTION under the act of June 21, <--
22 1957 (P.L.390, No.212), referred to as the Right-to-Know Law,
23 if, in the reasonable judgment of the board, the disclosure <--
24 INSPECTION would: <--
25 (i) in the case of an alternative investment OR <--
26 ALTERNATIVE INVESTMENT VEHICLE, involve the release of
27 sensitive investment or financial information RELATING TO <--
28 THE INVESTMENT ALTERNATIVE INVESTMENT OR ALTERNATIVE <--
29 INVESTMENT VEHICLE which the fund was able to obtain only
30 upon the condition of maintaining its confidentiality; <--
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1 AGREEING TO MAINTAIN ITS CONFIDENTIALITY;, SUBJECT, <--
2 HOWEVER, TO THE CONDITION THAT SUCH INFORMATION, TO THE
3 EXTENT NOT OTHERWISE EXEMPT, SHALL CONSTITUTE A PUBLIC
4 RECORD SUBJECT TO PUBLIC INSPECTION UNDER THE RIGHT-TO-
5 KNOW LAW, ONCE THE BOARD IS NO LONGER REQUIRED BY ITS
6 AGREEMENT TO MAINTAIN CONFIDENTIALITY;
7 (ii) cause substantial competitive harm to the
8 person from whom the information SENSITIVE INVESTMENT OR <--
9 FINANCIAL INFORMATION RELATING TO THE INVESTMENT was
10 received, subject, however, to the condition that such <--
11 information shall be subject to public inspection, TO THE <--
12 EXTENT NOT OTHERWISE EXEMPT, SHALL CONSTITUTE A PUBLIC
13 RECORD SUBJECT TO PUBLIC INSPECTION UNDER THE RIGHT-TO-
14 KNOW LAW, once its release no longer causes substantial
15 competitive harm to the person from whom the information
16 was received, WHICH, IN THE CASE OF INFORMATION REGARDING <--
17 AN INVESTMENT, SHALL BE NO LATER THAN THE LIQUIDATION OF
18 THE ENTITY IN WHICH THE INVESTMENT WAS MADE; or RECEIVED; <--
19 OR
20 (iii) have an adverse A SUBSTANTIAL DETRIMENTAL <--
21 impact on the value of an investment to be acquired, held
22 or disposed of by the fund, subject, however, to the <--
23 condition that such information shall be subject to
24 public inspection once FUND OR WOULD CAUSE A BREACH OF <--
25 THE STANDARD OF CARE OR FIDUCIARY DUTY SET FORTH IN THIS
26 PART AND ITS RELEASE WOULD NOT CAUSE A BREACH OF THE <--
27 STANDARD OF CARE OR FIDUCIARY DUTY SET FORTH IN THIS
28 PART, SUBJECT, HOWEVER, TO THE CONDITION THAT SENSITIVE
29 INVESTMENT OR FINANCIAL INFORMATION RELATING TO THE
30 INVESTMENT, TO THE EXTENT NOT OTHERWISE EXEMPT, SHALL
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1 CONSTITUTE A PUBLIC RECORD SUBJECT TO PUBLIC INSPECTION
2 UNDER THE RIGHT-TO-KNOW LAW ONCE its release no longer
3 has a SUBSTANTIAL detrimental impact on the value of an <--
4 investment of the fund AND ITS RELEASE WOULD NOT CAUSE A <--
5 BREACH OF THE STANDARD OF CARE OR FIDUCIARY DUTY SET
6 FORTH IN THIS PART, WHICH, IN THE CASE OF INFORMATION
7 REGARDING AN INVESTMENT, SHALL BE NO LATER THAN THE
8 LIQUIDATION OF THE ENTITY IN WHICH THE INVESTMENT WAS
9 MADE. PART. <--
10 (3) (I) THE SENSITIVE INVESTMENT OR FINANCIAL
11 INFORMATION EXCLUDED FROM INSPECTION UNDER PARAGRAPH
12 (2)(I), TO THE EXTENT NOT OTHERWISE EXCLUDED FROM
13 INSPECTION, SHALL CONSTITUTE A PUBLIC RECORD SUBJECT TO
14 PUBLIC INSPECTION UNDER THE RIGHT-TO-KNOW LAW, ONCE THE
15 BOARD IS NO LONGER REQUIRED BY ITS AGREEMENT TO MAINTAIN
16 CONFIDENTIALITY.
17 (II) THE SENSITIVE INVESTMENT OR FINANCIAL
18 INFORMATION EXCLUDED FROM INSPECTION UNDER PARAGRAPH
19 (2)(II), TO THE EXTENT NOT OTHERWISE EXCLUDED FROM
20 INSPECTION, SHALL CONSTITUTE A PUBLIC RECORD SUBJECT TO
21 PUBLIC INSPECTION UNDER THE RIGHT-TO-KNOW LAW ONCE:
22 (A) THE INSPECTION NO LONGER CAUSES SUBSTANTIAL
23 COMPETITIVE HARM TO THE PERSON FROM WHOM THE
24 INFORMATION WAS RECEIVED; OR
25 (B) THE ENTITY IN WHICH THE INVESTMENT WAS MADE
26 IS LIQUIDATED;
27 WHICHEVER IS LATER.
28 (III) THE SENSITIVE INVESTMENT OR FINANCIAL
29 INFORMATION EXCLUDED FROM INSPECTION UNDER PARAGRAPH
30 (2)(III), TO THE EXTENT NOT OTHERWISE EXCLUDED FROM
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1 INSPECTION, SHALL CONSTITUTE A PUBLIC RECORD SUBJECT TO
2 PUBLIC INSPECTION UNDER THE RIGHT-TO-KNOW LAW, ONCE:
3 (A) THE INSPECTION NO LONGER HAS A SUBSTANTIAL
4 DETRIMENTAL IMPACT ON THE VALUE OF AN INVESTMENT OF
5 THE FUND AND WOULD NOT CAUSE A BREACH OF THE STANDARD
6 OF CARE OR FIDUCIARY DUTY SET FORTH IN THIS PART; OR
7 (B) THE ENTITY IN WHICH THE INVESTMENT WAS MADE
8 IS LIQUIDATED;
9 WHICHEVER IS LATER.
10 (4) EXCEPT FOR THE PROVISIONS OF PARAGRAPH (3), NOTHING
11 IN THIS SUBSECTION SHALL BE CONSTRUED TO DESIGNATE ANY
12 RECORD, MATERIAL OR DATA RECEIVED, PREPARED, USED OR RETAINED
13 BY THE BOARD OR ITS EMPLOYEES, INVESTMENT PROFESSIONALS OR
14 AGENTS RELATING TO AN INVESTMENT AS A PUBLIC RECORD SUBJECT
15 TO PUBLIC INSPECTION UNDER THE RIGHT-TO KNOW LAW.
16 * * *
17 Section 3. Nothing in this act shall be construed or deemed <--
18 to imply that, but for the exclusions provided in 71 Pa.C.S. §
19 5902(e)(2), any of the types of records, materials or data
20 described in that provision are required to be open to
21 inspection by the public or constitute a public record, or that
22 any record not excluded in section 5902(e)(2) is a public
23 record, under the act of June 21, 1957 (P.L.390, No.212),
24 referred to as the Right-to-Know Law.
25 SECTION 3. NOTHING IN THIS ACT SHALL BE CONSTRUED OR DEEMED <--
26 TO IMPLY THAT:
27 (1) BUT FOR THE EXCLUSIONS PROVIDED IN 71 PA.C.S. §
28 5902(E)(2), ANY OF THE TYPES OF RECORDS, MATERIALS OR DATA
29 DESCRIBED IN THAT PARAGRAPH ARE REQUIRED TO BE OPEN TO
30 INSPECTION BY THE PUBLIC OR CONSTITUTE A PUBLIC RECORD UNDER
20050H0126B4579 - 5 -
1 THE ACT OF JUNE 21, 1957 (P.L.390, NO.212), REFERRED TO AS
2 THE RIGHT-TO-KNOW LAW; OR
3 (2) ANY RECORD NOT EXCLUDED IN SECTION 5902(E)(2) IS A
4 PUBLIC RECORD, UNDER THE RIGHT-TO-KNOW LAW.
5 Section 4 3. Nothing in this act shall be construed or <--
6 deemed to limit AFFECT the authority of the Auditor General to <--
7 obtain copies of any records, materials RECORD, MATERIAL or data <--
8 described in 71 Pa.C.S. § 5902(e)(2) in connection with a
9 lawfully conducted audit.
10 Section 5 4. Nothing in this act shall be construed or <--
11 deemed to imply that the release or making public of any record,
12 material or data described in 71 Pa.C.S. § 5902(e)(2) as not
13 being a public record is a violation of the State Employees'
14 Retirement Board's fiduciary duties.
15 Section 6 5. This act shall apply to all records ANY RECORD, <--
16 material or data described in 71 Pa.C.S. § 5902(e)(2), without
17 regard to whether the record, material or data was created,
18 generated or stored before the effective date of this section,
19 without regard to whether the record, material or data has <--
20 previously been WAS PREVIOUSLY released or made public and <--
21 without regard to whether a request for the record, material or
22 data has been WAS made or is pending final response under the <--
23 act of June 21, 1957 (P.L.390, No.212), referred to as the
24 Right-to-Know Law.
25 Section 7 6. In the event that the State Employees' <--
26 Retirement System has collected a fee or other monetary charge
27 for the preparation, duplication, production, redaction or other
28 expenses associated with the inspection or provision of records <--
29 A RECORD, material or data that as a result of the amendment of <--
30 71 Pa.C.S. § 5902(e) will not be made available for inspection
20050H0126B4579 - 6 -
1 by and will not be provided to the requester who made the
2 payment, the State Employees' Retirement System shall return the
3 fee or money to the requester.
4 Section 8 7. This act shall take effect immediately. <--
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