Act 77 of 2020: Guidelines Published by the Office of Open Records

NOTE: These guidelines are also available as a PDF.

The Coronavirus (COVID-19) pandemic has challenged public agencies across Pennsylvania to find a way to continue providing access to public records and public meetings during a time when many offices were physically closed and social distancing requirements prevented large gatherings.

Among the many lessons learned are that good communication, always essential in the Right-to-Know Law (“RTKL”) process, is even more necessary during a disaster declaration. Agencies should remember that transparency builds trust, especially in times of crisis. Likewise, requesters should consider whether a records request can wait and be made after the disaster declaration has ended. When a request is made, requesters should consider the circumstances and extend common courtesy and patience to the responding agency. Reasonableness is key. The RTKL works best as a collaborative effort rather than an adversarial process.

It is also useful to remember that the formal RTKL process is not required to request or provide access to records. Informal requests and responses can be more efficient because they come with fewer administrative requirements.

Act 77 of 2020 requires the Office of Open Records (“OOR”) to “publish guidelines for a Commonwealth agency specifying how the Commonwealth agency is required to respond to a request for records made during a disaster declaration when the Governor has ordered the Commonwealth agency to close the Commonwealth agency’s physical location.”

Those guidelines must be published “[n]o later than five days after the effective date of this section.” Accordingly, the following guidelines are hereby published by the OOR.

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Process for Writing Guidelines Pursuant to HB 2463

Office of Open Records LogoHouse Bill 2463, which will officially be assigned an act number soon, is now law.

This law requires the Office of Open Records to “publish guidelines for a Commonwealth agency specifying how the Commonwealth agency is required to respond to a request for records made during a disaster declaration when the Governor has ordered the Commonwealth agency to close the Commonwealth agency’s physical location.”

Those guidelines must be published “[n]o later than five days after the effective date of this section.”

The OOR plans to publish the guidelines on Friday, July 31.

Between now (Monday, July 27, at 9:30 a.m.) and Wednesday, July 29, at 1:00 p.m., the OOR is accepting public comment on the guidelines. Comments can be directed to the OOR via the contact page on our website or via email, openrecords@pa.gov.

Please note that all submitted comments will be public records.

Added on July 28, 2020: HB 2463 is now Act 77 of 2020.

Statement on House Bill 2463

Office of Open Records LogoThe following is a statement from Erik Arneson, Executive Director of the Office of Open Records:

House Bill 2463 would require the Office of Open Records to “publish guidelines for a Commonwealth agency specifying how the Commonwealth agency is required to respond to a request for records made during a disaster declaration when the Governor has ordered the Commonwealth agency to close the Commonwealth agency’s physical location.”

If HB 2463 becomes law, any guidelines published by the OOR would protect the health and safety of agency employees.

Additionally, if HB 2463 becomes law, agencies would continue to be able to avail themselves of the existing exemptions in Section 708 of the Right-to-Know Law.

Finally, if HB 2463 becomes law, the OOR would be required to publish the guidelines described above within five days. The OOR is ready to meet that deadline.

Right-to-Know Law Case Law Index

Office of Open Records LogoThe Office of Open Records has published the Right-to-Know Law Case Law Index, which summarizes and organizes major court decisions regarding Pennsylvania’s RTKL.

I’m very excited to make the RTKL Case Law Index available to the public and hope that it will be a valuable resource for agencies, requesters, and attorneys. It will be updated as new court decisions are issued.

Cases are organized by topic, with a brief summary of both the underlying request and the court decision. It does not include every appellate case and should not be relied upon in place of experienced legal counsel.

Previously, the OOR maintained a list of key RTKL opinions. That document, which is still available, will no longer be updated. (It was organized in reverse chronological order and contained very brief case descriptions.)

Some cases included on the list of key RTKL opinions do not appear in the RTKL Case Law Index. Often, this is because the cases were either effectively overruled or significantly clarified by later decisions. Sometimes, it’s because issues raised were effectively addressed in other cases that are in the RTKL Case Law Index.

We’ve tried to include the most significant court decisions in the RTKL Case Law Index, but of course some judgment calls had to be made.

If you have any comments, suggestions, or criticisms, please let us know.

Speaking to Students at Robert Morris University

Yesterday, I traveled to Robert Morris University near Pittsburgh to speak to Dr. Philip Harold’s journalism class about Pennsylvania’s Right-to-Know Law and Sunshine Act. (Well, “traveled” is not quite accurate… we used Google Meet.)

It was a great discussion with fantastic questions, and I appreciate the invitation very much.

Here’s the PowerPoint presentation I used:

Robert Morris University – Dr. Philip Harold – April 22, 2020 (PPTX)
Robert Morris University – Dr. Philip Harold – April 22, 2020 (PDF)

If you’re a professor in Pennsylvania and you’d like me to speak to your class, let me know and I’ll do my best to make it happen.

2020 AORO Survey Results

Earlier this year, the Office of Open Records conducted the fourth statewide survey of Agency Open Records Officers (AOROs), the people directly responsible for responding to Right-to-Know Law requests in Pennsylvania.

Some highlights from this year’s survey:

  • We received 1,433 responses from a wide variety of agency types. (Last year, we received 1,054 responses.)
  • Responses were received from agencies in all 67 of Pennsylvania’s counties.
  • Overall, the results were remarkably consistent with last year’s results.
  • Nearly 92% of agencies reported spending less than 5 hours per week responding to RTKL requests. (That includes 62.2% of agencies which spent less than 1 hour per week.)
  • The median number of requests received was 15; the average was 43.4.
  • The majority (53.2%) of requests were “general requests.” That was followed by commercial requests (31.2%), discovery and litigation requests (6.1%), academic research requests (5.4%), news media requests (3.2%), and inmate requests (1.0%).

This PDF contains additional detail about the 2020 Agency Open Records Officer Survey:

2020 AORO Survey Results – April 9, 2020 – PDF

And here’s the underlying data, exported into Excel files in the three ways Survey Monkey allows (all three are ZIP files):

2020_AORO_All_Summary_Data
2020_AORO_All_Responses_Data
2020_AORO_All_Individual_Responses

Thank you to all of the AOROs who took the time to answer this year’s survey. Your participation is extremely valuable.

2019 OOR Annual Report

2019 was the second-busiest year ever for the Office of Open Records. That’s one of the facts included in the OOR’s newly released 2019 Annual Report.

The OOR is required to “annually report on its activities and findings to the Governor and the General Assembly” (Section 1310(a)(9) of the Right-to-Know Law). Typically, the annual report is released during Sunshine Week in early March. This year, issues related to the COVID-19 pandemic delayed the release for about a month, but here’s our 2019 Annual Report:

2019 OOR Annual Report – PDF

Highlights from the report include:

  • 2,658 appeals were filed in 2019, making it the second-busiest year on record.
  • The current three-year average is 2,440 appeals; the current five-year average is 2,470.
  • More than half (51.6%) of the appeals docketed in 2019 were filed by everyday citizens.
  • About 75% of the appeals filed in 2019 involved local agencies.
  • The OOR conducted 105 mediations in 2019.
  • The OOR led or participated in 88 training sessions in 2019.
  • The OOR responded to 1,006 RTKL requests in 2019 (a record high), although the vast majority were misdirected.

Previous annual reports are available here.

The RTKL and the Coronavirus (COVID-19)

Office of Open Records LogoThe Office of Open Records has issued the following Advisory regarding Pennsylvania’s Right-to-Know Law and the COVID-19 emergency.

Last updated August 3 at 11:48 a.m.

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All counties in “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 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.

Agencies: Please remember that transparency builds trust, especially in times of crisis.

Advisory regarding RTKL requests:

As of June 5, 2020, all counties are in “yellow” or “green” status pursuant to the latest guidance published by the Pennsylvania Department of Health. Accordingly, all agencies should process RTKL requests as they would under normal circumstances.

Advisory regarding RTKL appeals:

The OOR is committed to protecting due process, ensuring that all parties have a full and fair opportunity to meaningfully participate in any RTKL appeal filed with the OOR, and ensuring a proper review of all submissions. To that end, the OOR may invoke reasonable extensions on a case-by-case basis.

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 slight 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.

As stated above, all counties in “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.

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 requesting 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.

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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.

The Sunshine Act and the Coronavirus (COVID-19)

Office of Open Records LogoThe Office of Open Records has issued the following Advisory regarding Pennsylvania’s Sunshine Act and the coronavirus (COVID-19).

Last updated June 12 at 6:12 p.m.

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This advisory relates to all meetings governed by the Sunshine Act; it is not limited to emergency meetings.

As a starting point, it’s key for agencies to remember that transparency builds trust, especially in times of crisis.

Act 15 of 2020 (formerly Senate Bill 841) went into effect on April 20. (Note: The Sunshine Act still applies.)

Chapter 57, Subchapter E, of Act 15 contains provisions regarding local government agency meetings during the COVID-19 emergency. Subchapter E is temporary and its provisions are limited to the duration of the COVID-19 emergency.

Some of the key provisions include:

  • Clarifying that local government agencies are authorized to hold remote meetings during the emergency. A physical quorum (i.e., a quorum all in the same room) is not needed. However, there must be a quorum participating remotely.
  • “To the extent practicable” local government agencies must provide advance notice of all remote meetings including date, time, technology, and how the public can participate. Such notice must be posted on the agency’s website, in a newspaper of general circulation, or both. The OOR also encourages agencies to use social media, email newsletters, and any other method it has available to provide notice.
  • “To the extent practicable,” local government agencies must provide for public participation directly through the teleconferencing or videoconferencing system used to hold the meeting, via email and/or via postal mail. (Ideally, agencies will accommodate all three methods and possibly others.)
  • NOTE: “Practicable” is a much stronger word than “practical.” (Merriam-Webster defines “practicable” as “capable of being put into practice or of being done or accomplished; feasible.” In other words, unless it is actually impossible to do so, it must be done. This means that advance notice and public participation are essentially required.)
  • If an emergency meeting (i.e., a meeting called without public notice) related to COVID-19 takes places, the minutes of that emergency meeting must be made available within 20 days.

Note that the above provisions of Act 15 do not apply to school entities. (This does not mean that school entities cannot hold remote meetings — they can, subject to the Sunshine Act and other relevant laws. Any school entity taking that step must provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act. That method should be clearly explained to the public in advance of and during the meeting.)

Act 15 includes other provisions relevant to local government agencies and school entities, and the OOR encourages consultation with solicitors regarding the entire law.

In addition to the provisions of Act 15, the Office of Open Records strongly recommends that any agency holding a remote meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is easily accessible by the public.

To the extent that agenda items can be delayed until in-person meetings can resume, it’s a good idea to do so.

Here’s the March 6 disaster emergency declaration signed by Governor Wolf and information about the declaration.

NOTE: On June 3, Gov. Wolf extended the emergency declaration for an additional 90 days. Subsequently, the General Assembly passed HR 836 to terminate the emergency declaration. The issue is now pending before the Commonwealth Court and the Supreme Court of Pennsylvania. The view of the OOR is that the provisions of Act 15 which are limited to the duration of the COVID-19 emergency remain in effect while this case is pending in court.

The Pennsylvania District Attorneys Association has also issued guidance related to the Sunshine Act, which can be read here (PDF).

If and when events warrant any update to this advice, it will be posted here.

Agencies, solicitors, and members of the public with any questions are welcome to contact the OOR. Using the OOR contact form is the best way to reach us at this time, as we are all working remotely.

Information about the coronavirus (COVID-19) is available from the Pennsylvania Department of Health and the Centers for Disease Control and Prevention.