The Office of Open Records has issued the following Advisory regarding Pennsylvania’s Right-to-Know Law and the COVID-19 emergency.
Last updated May 22 at 5:44 p.m.
The OOR encourages both requesters and agencies to be considerate and patient while working with each other, especially during the current emergency. Good communication between agencies and requesters is always important, but that’s even more true now.
Requesters: Unless you have an urgent need to access records, please do not file any new Right-to-Know Law (RTKL) requests at this time. Additionally, in most cases, inspecting records will not be possible during the emergency; if a request is necessary, please seek copies of records (preferably electronic).
Agencies: Please remember that transparency builds trust, especially in times of crisis.
Advisory regarding RTKL requests:
Agencies should continue processing RTKL requests to the greatest extent of their ability to do so. More specifically, agencies based in counties which have been moved to “yellow” or “green” status pursuant to the latest guidance published by the Pennsylvania Department of Health should process RTKL requests as they would under normal circumstances.
The RTKL includes strict deadlines for agencies receiving a RTKL request. In the event that an agency implements a Continuity of Operations Plan (COOP) or takes similar steps in response to an official emergency declaration (such as the March 6 disaster emergency declaration signed by Governor Wolf), the issue of how RTKL requests will continue to be handled should be part of that plan. The agency should take steps to notify the public of the agency’s plan with regard to RTKL requests. (This can include, for example, a notice on the agency website and an auto-reply from the email address designated to receive RTKL requests.)
If an agency is closed on a given day, that day is not a “business day” and does not count toward the five business days referenced in Section 901 of the RTKL, which governs the time period under which an agency must respond to a request. However, the physical closing of an office does not necessarily constitute a full closure of operations under the RTKL. If necessary during an appeal, each situation will be evaluated on its specific merits.
To the extent that an agency is unable to comply with the RTKL’s strict deadlines due to bona fide issues related to an emergency declaration, 35 Pa.C.S. § 7501(d) allows agencies under a “declaration of disaster emergency” to temporarily suspend the need to comply with certain laws and requirements. (Governor Wolf’s disaster emergency declaration covers the entire commonwealth.) The OOR encourages agencies to consult with their solicitor before invoking 35 Pa.C.S. § 7501(d) as it relates to the RTKL.
Advisory regarding RTKL appeals:
The OOR is committed to protecting due process and ensuring that both requesters and agencies have a full and fair opportunity to meaningfully participate in any RTKL appeal filed with the OOR. To that end, the OOR is now invoking a 30-day extension on all appeals filed.
Any appeal filed electronically (i.e., via the OOR’s online appeal form or via email) will be docketed as usual. Currently, the OOR is only able to receive postal mail on a limited basis. Accordingly, there may be a delay in docketing any appeal filed via postal mail. (Such appeals will not be prejudiced as to timeliness.)
Because every staff member of the OOR is working remotely, we encourage requesters and agencies to use email for all appeal submissions at this time.
The OOR will work to resolve all appeals filed. Based on the OOR’s experience, many agencies and requesters are now able to participate in appeals. As stated above, agencies based in counties which have been moved to “yellow” or “green” status pursuant to the latest guidance published by the Pennsylvania Department of Health should process RTKL requests as they would under normal circumstances. This is also true for RTKL appeals.
However, if either the agency or requester is (or both are) unable, due to the COVID-19 emergency, to meaningfully participate in an appeal under the deadlines set by the OOR, the OOR may take additional extensions. Depending on the specific circumstances, agencies — particularly those based in counties which have been moved to “yellow” or “green” status — which request an extension may be required to provide evidence demonstrating why the appeal cannot proceed as scheduled.
The OOR’s mediation process is continuing for both ongoing and new mediations. Although it may take longer to schedule mediation discussions (many of which are handled via teleconference), the OOR will continue to do so.
We appreciate everyone’s patience in this process.
If and when events warrant any update to this advice, it will be posted here. Agencies are also welcome to contact the OOR with any questions (using the OOR contact form is the best way to reach us at this time, as we are all working remotely).
Information about COVID-19 is available from the Pennsylvania Department of Health and the Centers for Disease Control and Prevention.