DISSENTING OPINION BY
President Judge PELLEGRINI.At issue in this case is whether a Tier II hazardous chemicals inventory database (Tier II Database) are public records, and if so, do they fall within one of the exceptions to disclosure contained in the Right-to-Know Law (RTKL).1 I disagree with the majority’s conclusion that the records are not public or that access to those records is limited by the federal Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001-11050.
Section 305 of the RTKL, 65 P.S. § 67.305, entitled “Presumption” states:
(a) General rule. — A record in the possession of a Commonwealth agency or local agency shall be presumed to be a public record. The presumption shall not apply if:
(1) the record is exempt under section 708;
(2) the record is protected by a privilege; or
(3) the record is exempt from disclosure under any other Federal or State law or regulation or judicial order or decree. (Emphasis added.)
Under this provision, a record is still presumed to be a public record until it is found to be exempt from disclosure.
Chapter 7 of the RTKL deals with the procedure by which one requests public records and the obligation of the public entity to respond to those requests. 65 P.S. § 67.701-708. Section 701 of RTKL, 65 P.S. § 67.701, entitled “Access” deals with how records should be provided to the public and states:
(a) General rule. — Unless otherwise provided by law, a public record, legislative record or financial record shall be accessible for inspection and duplication in accordance with this act. A record being provided to a requester shall be provided in the medium requested if it exists in that medium; otherwise, it shall be provided in the medium in which it exists. Public records, legislative records or financial records shall be available for access during the regular business hours of an agency. (Emphasis added).
Section 3101.1 of the RTKL, 65 P.S. § 67.3101.1, also provides that “[i]f the provisions of this act regarding access to records conflict with any other federal or state law, the provisions of this act shall not apply.” While access can be limited by other state or federal law, it has no effect on whether the document or information is a public record.2
The majority finds that the requested information need not be produced because it is not a public record, and that access is limited under Sections 701 and 3101.1 of the RTKL, 65 P.S. §§ 67.701, 67.3101.1. Specifically, it finds that under Section 324 of EPCRA, access to the requested documents is limited: they “shall be made available to the general public ... during normal working hours at the location or locations designated by the Administrator, Governor, State emergency response commission, or local emergency planning committee, as appropriate.” 42 U.S.C. § 11044(a). In effect, it says the records are only available at designated locations *836and times but the records can be examined but not duplicated, and the procedures set forth in Chapter 9 of the RTKL on how the agency is to respond to the request are not applicable. Again, relying on Section 312 of EPCRA, 42 U.S.C. § 11022(e)(3), the majority finds that a request can only be made for a specific facility, not all facilities.
After stating that federal statutes and regulations can supersede the RTKL, the majority then goes on to find that the information regarding hazardous materials is not a public record under EPCRA, stating:
The phrase “availability to public,” imposes a duty on an agency to provide public access to certain records as that agency sees fit to fulfill its duty. The focus is on the manner of providing the record, not the nature of the record. Thus, certain federal laws establish a means of accessing reports required by the statutory scheme, whereas others establish the public nature of the records without setting conditions to access.
EPCRA falls into the former category. EPCRA sets forth a means of requesting reports under that statute. Nowhere does EPCRA state that Tier II information “shall be public,” or the like. OOR thus erred in concluding EP-CRA qualified as a federal statute that established the public nature of Tier II information. ■
(op. at 832) (footnote omitted).
By stating that the requested record is not a public record, the majority appears to be saying that even though the information can be disclosed under EPCRA, albeit with limited access, the fact that it is not a public record under EPCRA means that if the “public safety” exception applies, for which it remands to the OOR to determine, then even the information made available under EPCRA is not subject to disclosure.
Even I fully understand the majority’s reasoning in arriving at the conclusion; we don’t look to EPCRA but to the RTKL to determine what records kept by Pennsylvania are public records. What is a public record is defined under Section 201 of the RTKL as a “record” of a Commonwealth or local agency is (1) not exempt under Section 708; and (2) not exempt from being disclosed under any other federal or state law or regulation or judicial order. 65 P.S. § 67.301. The majority does not find that the records are exempt under EPCRA, only that access to those records is limited so the presumption created under Section 305 of the RTKL, 65 P.S. § 67.305, that all records are public, is maintained.
The core reason that I dissent is the majority’s use of EPCRA in making the determination as to whether the documents are accessible. Section 301 of EP-CRA requires that “the Governor of each State shall appoint a State emergency response commission.” 42 U.S.C. § 11001(a). It goes on to provide the “State emergency response commission shall establish procedures for receiving and processing requests from the public for information under section 11044 of this title, including tier II information under section 11022 of this title.” Id. While it was not clear at the time this Act was passed in 1986, since then, it has been held that the federal government cannot commandeer state government to carry out federal programs or to mandate states to implement certain state actions. See New York v. United States, 505 U.S. 144, 176, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (declaring unconstitutional under the Tenth Amendment a take-title provision in Section 5 of the Low-Level Radioactive Waste Policy Amendments Act of 1985, 42 *837U.S.C. § 2021e, which required states that did not enact the Waste Policy Act to take full liability for all the waste within their borders because “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’”). See also Printz v. United States, 521 U.S. 898, 117 S.Ct. 2865, 188 L.Ed.2d 914 (1997) (extending New York’s non-commandeering rule from state legislatures to executive officials by declaring unconstitutional provisions of the Gun Control Act, 18 U.S.C. § 922, commandeering state and local law enforcement officials to conduct background checks on certain gun purchasers).
Nonetheless, Pennsylvania implemented the provisions of EPCRA by enacting the Hazardous Material Emergency Planning and Response Act (Hazmat Act), Act of December 7, 1990, P.L. 639, as amended, 35 P.S. §§ 6022.101-6022.3 The Hazmat Act, not EPCRA, imposes the duty on state officials using state money to gather and maintain hazardous material information. It is the records kept under that Act that are being requested. Because there is no provision in the Hazmat Act that limits access to those records which are required to be kept thereunder, the exemptions contained in Sections 701 and 3101.1 of the RTKL simply do not apply.4
The next question is whether the records are exempt from disclosure under Section 708(b)(2) or (3) of the RTKL, 65 P.S. § 67.708(b)(2), (3), known as the “public safety” exceptions. Generally, those provisions exempt from disclosure information that would threaten public safety activity or if its disclosure is reasonably likely to threaten the physical security of any building, infrastructure or public utility. Normally, in making that determination, we would determine whether there would be a reasonable likelihood if public safety would be harmed if the information is released.
In conducting that analysis, the OOR determined that since information had to be released under EPCRA, there was a legislative determination that it would not harm public safety. The majority agrees that at least there has been a federal Emergency Planning and Community Right-to-Know Act that records for specific sites have to be released with limited access which is a reasonable conclusion, given the title of the Act. See also the *838Worker and Community Right-to-Know Act, Act of October 5, 1984, P.L. 734, 35 P.S. §§ 7301-7320. The question then becomes that while specific sites have to be released, does a list of the Tier II sites and what hazardous chemicals are stored at those sites have to be released. Again, there has been a legislative determination that those lists can be released.
Section 212 of the Hazmat Act, 35 P.S. § 6022.212, provides that a list of hazardous materials similar to the one sought here be provided to the General Assembly every year. It provides:
PEMA [Pennsylvania Emergency Management Council] shall submit an annual report to the General Assembly by October 1 of each year on the activities it has undertaken to implement this act. The report shall include, but not be limited to:
(1) An accounting of revenues and expenditures from the Hazardous Material Response Fund and the county Hazardous Material Emergency Response Accounts along with a description of the projects undertaken with these funds and a projection of future activities.
(2) The status of local emergency planning committee activities.
(3) The status of facilities required to comply with this act, including their number, location and the number and amount of chemicals reported.
(4)The number and nature of emergency notifications handled by PEMA. (Emphasis added.)
Id. Because there has been a legislative determination that a public report has to be given each year, then, similarly, there has been a legislative determination that the records do not fall within the public safety exception.
Accordingly, for the foregoing reasons, I would affirm the Office of Open Records and order that the requested information be produced.
. Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
. Chapter 9 of the RTKL, 65 P.S. §§ 67.901-67.905, deals with how the agency must respond to the RTKL request.
. One of the purposes of the Hazmat Act was to ‘'[djesignate the Pennsylvania Emergency Management Council as the Commonwealth’s emergency response commission and establish an emergency planning district and a local emergency planning committee in each county of this Commonwealth to act in accordance with the provisions of the Emergency Planning and Community Right-To-Know Act of 1986 (Title III of Public Law 99-499, 42 U.S.C. § 11001, et seq.) also referred to in this act as SARA, Title III." Section 102(b)(2), 35 P.S. § 6022.102(b)(2).
. The majority does not address the provisions of the Hazmat Act, the Act which is the only Act that places upon the Commonwealth and its officials the obligation to keep the Tier II database. It does not address the applicability of the Hazmat Act because it contends its applicability has been waived because of the Requestor’s appeal to OOR and only mentions EPCRA and not the Hazmat Act. Notably, in its briefs, the Department of Labor & Industry does not object to the Requestor's raising the Hazmat Act, which is understandable given that it raises bulletins from other states as a reason the EPCRA does not require disclosure, even though it had not given that as a reason for nondisclosure previously. Simply put, because the Hazmat Act implements EPCRA in Pennsylvania, raising EP-CRA necessarily involves the application of the Hazmat Act. Of course, because this is a dissent, the majority does not to agree with this interpretation, which allows Requestor to make a new request under the provisions of the Hazmat Act.