The RTKL and the Coronavirus (COVID-19)

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

Last updated April 1 at 9:02 a.m.

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The OOR encourages both requesters and agencies to be considerate and patient while working with each other, especially during the current emergency.

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.

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, 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.

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” (including Governor Wolf’s statewide declaration) to temporarily suspend the need to comply with certain laws and requirements. 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 an indefinite 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.

To the extent possible, the OOR will work to resolve all appeals filed. In a situation where either the agency or the requester is (or both are) unable to meaningfully participate in the appeal due to the COVID-19 emergency, the OOR’s indefinite extension will ensure due process by delaying the appeal only as long as it takes for all parties to be able to participate.

Likewise, the OOR’s mediation process will continue, to the extent possible, 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)

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.

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.

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.

Article for Pennsylvania County News

The County Commissioners Association of Pennsylvania recently asked me to contribute an article to the Fall 2019 issue of Pennsylvania County News, which I was happy to do.

Here’s the complete text of that article.

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Balancing the public’s right to know with confidentiality laws and privacy interests

Pennsylvania’s Right-to-Know Law (RTKL) presumes that all government records are available to the public – but it also recognizes that there are times records must be shielded to comply with confidentiality laws, to respect various privileges, and to protect legitimate privacy interests.

In our training sessions, the Office of Open Records (OOR) often points out that the RTKL is not itself a confidentiality law. In other words, the RTKL does not require agencies to withhold any records. Instead, it allows agencies to withhold records when certain conditions apply. (For example, records can be withheld if their disclosure would endanger public safety, reveal police notes about an investigation, or identify an individual receiving social services.)

But there are laws which require confidentiality, and those laws must be followed.
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