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.

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.

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!

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.