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.