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.

Speaking to Students at Drexel University

Earlier today, I visited Drexel University in Philadelphia to speak to Dr. Ronald Bishop’s journalism class about Pennsylvania’s Right-to-Know Law.

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

Here’s the PowerPoint presentation I used:

Drexel University – Dr. Ronald Bishop – March 3, 2020 (PPTX)
Drexel University – Dr. Ronald Bishop – March 3, 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.

Speaking to Students at Temple University

Yesterday afternoon, I visited Temple University in Philadelphia to speak to Dr. Logan Molyneux’s journalism class about Pennsylvania’s Right-to-Know Law.

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

Here’s the PowerPoint presentation I used:

Temple University – Dr. Logan Molyneux – Feb. 27, 2020 (PPTX)
Temple University – Dr. Logan Molyneux – Feb. 27, 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.

Speaking to Students at Upland Country Day School

On Wednesday morning, I visited Upland Country Day School in Kennett Square to speak to two classes (9th grade and 7th grade) about the importance of government transparency and how Pennsylvania’s Right-to-Know Law works.

Teacher Judson Morris led the discussions, and I really appreciate the invitation to return to a school I graduated from in 1985. It was fantastic to be back on campus.

Here’s the PowerPoint presentation I used:

Upland Country Day School – Mr. Judson Morris – Feb. 26, 2020 (PPTX)
Upland Country Day School – Mr. Judson Morris – Feb. 26, 2020 (PDF)

If you’re a teacher or 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.

OOR Updates Standard RTKL Request Form

Office of Open Records LogoThe Office of Open Records has updated the Standard Right-to-Know Law Request Form.

(Under Section 505 of the Right-to-Know Law, all Commonwealth and local agencies are required to accept the OOR’s Standard RTKL Request Form.)

The new Standard RTKL Request Form includes a series of relatively minor changes, the most notable of which is that if the requester does not make a choice regarding the format of copies being sought, there is now a default (printed copies). Previously, there was no default; that led to confusion in a few cases.

All previous Standard RTKL Request Forms remain valid to use, but it’s always best to use the most current version when submitting a RTKL request.

The Standard RTKL Request Form is available in two formats: PDF and Word.

Speaking to Students at Dickinson College

Yesterday afternoon, I visited Dickinson College in Carlisle to speak to Prof. Amy Worden’s journalism class about Pennsylvania’s Right-to-Know Law.

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

Here’s the PowerPoint presentation I used:

Dickinson College – Prof. Amy Worden – Feb. 24, 2020 (PPTX)
Dickinson College – Prof. Amy Worden – Feb. 24, 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.

March 20 in Pittsburgh: Sunshine Week Conference

On Friday, March 20, I’ll be speaking about the Right-to-Know Law as part of the Access, Transparency and Your Right to Know daylong conference taking place at the Kimpton Hotel Monaco in Pittsburgh.

My discussion (and there will be plenty of opportunity for Q&A) will take place during the luncheon, but the entire event kicks off at 9:30 a.m.

Here’s how the organizers describe the event:

A coalition of nonprofit media organizations is holding a one-day conference to explore Pennsylvania’s open government and right-to-know laws. Timed to fall within Sunshine Week 2020, the gathering will feature sessions aimed at professional journalists, students, and individuals who have an interest in accessing government meetings and information.

Sessions will look at the Pennsylvania Right to Know Act, the Clean Slate law, the Sunshine Act and other access and transparency issues and the event will feature a keynote presentation from Erik Arneson, executive director of the Office of Open Records. Additional speakers to include representation from the ACLU, UVA Law School’s First Amendment Clinic, Reporters Committee for Freedom of the Press, PA Post, PublicSource, Spotlight PA, StateImpactPA, The Caucus and more.

Schedule and session program forthcoming.

More information is available here.

I hope you can join us!

OOR Webinar Schedule for Sunshine Week 2020

Office of Open Records LogoContinuing a tradition that began last year, the Office of Open Records is once again planning a series of webinars for Sunshine Week 2020 with topics related to Pennsylvania’s Right-to-Know Law and Sunshine Act.

The OOR’s Sunshine Week 2020 webinar series currently looks like this:

March 16 (Monday)
RTKL Basics for Agency Open Records Officers
with OOR Director of Training & Outreach George Spiess

March 17 (Tuesday)
Records Retention
with Archivist Tyler Stump of the Pennsylvania State Archives

March 18 (Wednesday)
Writing an Effective RTKL Request
with OOR Executive Director Erik Arneson

March 19 (Thursday)
Pennsylvania’s Sunshine Act
with OOR Director of Training & Outreach George Spiess

March 20 (Friday)
Changes to the OOR Docketing System
with OOR General Counsel Delene Lantz-Johnson

All of the webinars will begin at 10 a.m. and will include plenty of time for questions. Mark your calendar to join us!

For more details, check the OOR’s training calendar a little closer to Sunshine Week.

Agencies Should Provide Evidence to the OOR

Office of Open Records LogoThe Commonwealth Court has consistently frowned on agencies trying to submit new evidence (i.e., evidence not provided to the Office of Open Records) during a Right-to-Know Law appeal.

As a general rule, Courts of Common Pleas have been more accepting of that practice. However, Courts of Common Pleas are not required to accept such evidence. In one recent case (OOR Dkt. No.: AP 2019-1228), Judge Richard K. Renn of York County included some commentary about the practice in his order.

Judge Renn wrote: “[W]e have noticed a disturbing trend in recent cases involving [York] County that the County submits additional materials to this Court for consideration during the review de novo process which it did not make available to the OOR. The Commonwealth Court recently commented on this practice, noting that ‘[l]ack of evidence, when the parties and participants had a full opportunity to submit evidence to the fact-finder, is not a valid reason for supplementing the record.’ Mission Pa., LLC v. McKelvey, 212 A.3d 119 (Pa. 2019).”

After further quoting from McKelvey, Judge Renn continued: “Indeed, one might conclude that the County was ‘sandbagging’ the OOR appeal process since no explanation was given for the recent submission of the [new evidence]. … We are not prepared at this time to draw that conclusion in the context of this case.”

I think Judge Renn’s point is crystal clear (and 100 percent correct): Absent some extremely unusual circumstance, agencies should submit all of the evidence they have in a RTKL case while that case is being heard by the Office of Open Records. In fact, the OOR regularly extends submission deadlines (and sometimes ask requesters to grant an extension of time to consider the case) to ensure that the record is fully developed before a final determination is issued.

Judge Renn’s complete order is here.

The Commonwealth Court decision in Mission Pa., LLC v. McKelvey is here.

Speaking to the County Commissioners Association

Yesterday in Hershey, I spoke to members of the County Commissioners Association of Pennsylvania at their Newly Elected Officials Workshop & Fall Conference.

Not surprisingly, I focused on Pennsylvania’s Right-to-Know Law. More specifically, I encouraged counties (the same would apply to other agencies) to post their most commonly requested records online. For example:

We also discussed effective ways to use social media and how the RTKL applies to social media, as well as some common-sense ways to reduce the burden of the RTKL on agency employees.

Many thanks to CCAP for the invitation. I appreciate the chance to speak to county commissioners from across Pennsylvania.

Here’s the PowerPoint presentation I used:

County Commissioners Association of Pennsylvania – Nov. 25, 2019 (PPTX)
County Commissioners Association of Pennsylvania – Nov. 25, 2019 (PDF)

If you’re interested in training about the Right-to-Know Law and/or the Sunshine Act (for agencies or requesters), please let us know.