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 June 5 at 11:30 a.m.

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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.

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 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 invoking a 30-day 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 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 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. 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.