The Sunshine Act and the Coronavirus (COVID-19)

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

Last updated March 31 at 9:07 a.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.

The Sunshine Act is clear that public meetings should be held at public buildings with open public participation whenever possible. If an official emergency declaration prevents that from happening, a meeting via teleconference, webinar, or other electronic method that allows for two-way communication is generally permissible.

Any agency 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.

Further, the Office of Open Records strongly recommends that any agency holding such a meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is available to the public.

35 Pa.C.S. § 7501(d) allows agencies under a “declaration of disaster emergency” (here’s the March 6 disaster emergency declaration signed by Governor Wolf and information about the declaration) to suspend the need to comply with certain “formal requirements.” In context, any such suspensions must be related to the emergency in some way.

Some agencies are governed by laws which add requirements beyond those included in the Sunshine Act. For example, both the Borough Code and the Third Class City Code explicitly require that a majority of members be physically present for purposes of determining a quorum. In such cases, the provisions of 35 Pa.C.S. § 7501(d) can come into play. The OOR encourages agencies to consult with their solicitors on such issues.

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.

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Guidance from the Pennsylvania District Attorneys Association

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

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

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

15 thoughts on “The Sunshine Act and the Coronavirus (COVID-19)

  1. This does not provide specific enough advice for our borough. Get off the stick and make some actionable recommendations.

    John f yerman iii

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    • Hi John, thank you for the comment. In light of the fact that this is an unusual situation (to say the least), and with approximately 6,000 agencies across Pennsylvania potentially affected in some way, our advice here had to be general. I’m sorry it didn’t address your situation, but please contact the Office of Open Records directly with your specific questions. Email is best, openrecords@pa.gov, and the telephone number is 717-346-9903. We’ll certainly do everything we can to assist. -Erik Arneson

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    • Daniel, thank you for the question. 35 Pa.C.S. 7501(d) allows agencies under a “declaration of disaster emergency” (which the entire state of Pennsylvania currently is) to suspend the need to comply with certain laws and requirements. In context, any such suspensions must be related to the emergency. In other words, if an agency is unable to hold a meeting in such a way that the public can participate, and that agency must address issues related to the emergency declaration (in this case, the coronavirus), the position of the OOR is that the agency may do so. That said, the agency must keep minutes of that meeting and the minutes will be public. Also, if the agency has any method by which to record the meeting (audio or video, including for example a cell phone), the OOR strongly encourages the agency to do so, and to make the recording available to the public. And at the next public meeting, the agency should take time to explain what actions were taken and why they were taken, and to allow the public to comment.

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      • Thanks for the quick response. So am I inferring correctly a transit agency could have a meeting to address issues related to the coronavirus, but that does not mean they could have a closed-door meeting to address their previously scheduled agenda (that is non-coronavirus related matters)?

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      • That’s correct. To the greatest extent possible, an agency should not invoke the provisions of 35 Pa.C.S. 7501(d) to conduct ordinary business at a meeting which excludes the public. In the vast majority of cases, no harm would come by delaying the ordinary business to the next public meeting.

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  2. I disagree on the “no harm for a delay”. Ive been at this for 6 years and the borough needs decisions by council at every meeting.

    Bills need to be paid, purchases authorized, actions taken in citizen complaints, actions taken to enforce the laws, land development approvals are on a timeline. It is very naive to think it can all just wait for 2-3 months.

    It is dangerous to hold public meetings.

    Please give us an approach that works a little better. What you are requiring will cause damage that will not be resolvable.

    John y.

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    • John Y
      Under an emergency declaration, those actions like paying bills can be done without the council meeting. Land development projects have no right of a normal timeline. If my attorney or consultant engineer is not able to work because they are not an essential business, then the land development project is lost in the time.

      Like

    • As our advice indicates, if an agency can provide a reasonably accessible method for the public to participate and comment pursuant to Section 710.1 of the Sunshine Act, holding meetings which are physically closed to the public (including meetings at which the agency members participate remotely via, for example, teleconference) is an acceptable alternative during a time of emergency declaration. At least some agencies are allowing public comment by email, posting the email address and meeting agenda online prior to the meeting. That would appear to be a reasonable approach.

      The purpose of the OOR’s guidance is to assist agencies in meeting their statutory obligations during a public health crisis unprecedented in modern times. While the OOR cannot predict how a court would rule on a challenge to any agency’s compliance with the Sunshine Act during this crisis, our guidance suggests that agencies take reasonable steps to ensure that the public has notice of proposed agency meetings and a reasonable opportunity to comment. Obviously, each agency may have different capabilities to meet these obligations and, as such, should consult their solicitor for the course of action best suited to their unique situation.

      Put another way, this is a very fluid situation that does not lend itself to a one-size-fits-all approach, and agencies should make their best efforts to ensure they meet their obligations under the Sunshine Act bearing in mind that transparency builds trust, particularly in times of crisis.

      Any agency with specific questions not addressed here is welcome to contact the OOR via email at openrecords@pa.gov.

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      • There will be a need for a clarification of “reasonable” – for example, is email and comments on meetings streamed online going to be considered reasonable access for public participation because these methods require internet access?

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      • It’s a case-by-case situation, of course, and while one of the Office of Open Records’ duties is to provide training on the Sunshine Act, we do not adjudicate any issues under the Sunshine Act — that’s left to the courts. That said, we are encouraging agencies to use as many options as they can with regard to public participation.

        At least some of the statewide organizations representing local government agencies are encouraging their members to postpone action on any non-essential items of business, which also makes good sense.

        As to your specific example, as agencies work to balance the need to be transparent pursuant to the Sunshine Act with the need to conduct essential public business, I believe that providing the opportunity to comment via email — particularly if the agenda is posted online in advance and public comment can be made both before and during the meeting — is a good way to proceed. It’s obviously not ideal, but given the practical reality of the limitations the coronavirus pandemic puts on public meetings, it is a solid approach.

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  3. Pingback: RCFP makes recommendations for press freedom, government transparency during COVID-19 – Native American Journalists Association

  4. Pingback: Public Meetings Amidst Social Distancing | McNees Public Sector

  5. Pingback: Should Chester City be handling City Council meetings differently during coronavirus? – Chester Matters Blog

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