Understanding the Right-to-Know Law & the Sunshine Act
Liz Wagenseller, Executive Director of the Pennsylvania Library Association, presented on the Right-to-Know Law and the Sunshine Act. The presentation covered the purpose of the Right-to-Know Law, recent headlines related to the law, accessing government records, and promoting transparency in government operations.
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Liz Wagenseller, Executive Director Understanding the Right-to-Know Law & the Sunshine Act Pennsylvania Library Association August 2, 2022 https://openrecords.pa.gov @OpenRecordsPA openrecords@pa.gov (717) 346-9903
Greetings Liz Wagenseller Executive Director of the Office of Open Records Appointed in January of 2021 to serve six-year term Previously at the PA Department of the Auditor General Kyle Applegate, Esq Chief Counsel of the Office of Open Records Began as an Appeals Officer at the OOR in 2011 August 2022 Pennsylvania Library Association 3
What is the Right-to-Know Law?
RTKL in the Headlines Department of Labor admits it overcharged unemployed Pennsylvanians millions of dollars Spotlight PA , July 9, 2021 IBM paid Pa. $33M to settle lawsuit over jobless benefits computer project The Patriot-News, September 13, 2021 Free rides take $104M toll on Pennsylvania Turnpike finances Associated Press, September 14, 2021 August 2022 Pennsylvania Library Association 5
Kangaroos Secret Remains Safe after Pennsylvania Refuses to Disclose its Location to Former Quakertown Woman who Once Owned It Morning Call, February 26, 2021 Pennsylvania Library Association 6
Accessing Government Records What kind of records do you want? Federal Government: Freedom of Information Act (FOIA) Judicial Records: Common Law, PA Supreme Court Rule 509 State & Local Records: Right-to-Know Law August 2022 Pennsylvania Library Association 7
Access, Transparency, Good Government The purpose of Pennsylvania s Right to Know Law is to give the public access to public records. Every record of an Agency is presumed to be public. Agencies bear the burden of proving that a record is not public. August 2022 Pennsylvania Library Association 8
A Brief History of the RTKL RTKL overhaul effective 1/1/2009 Then-existing RTK Act presumed gov t records were not public Requester had to prove public nature & all appeals went to court In practice, basically limited to financial records Act 3 of 2008 complete rewrite, new RTKL Flipped presumption: now gov t records presumed to be public Created independent Office of Open Records (free appeals) August 2022 Pennsylvania Library Association 9
Records Take Many Shapes The Right-to-Know Law Doesn t distinguish between formats Paper, email, texts, social media, audio, video, etc. Doesn t distinguish between agency & personal devices (or agency & personal email / social media accounts) Practical issues re: accessing personal devices & email Best practice: Agency business done on agency devices & email August 2022 Pennsylvania Library Association 10
What is public? All state & local government records presumed to be public 30 exceptions in the RTKL Fewer apply to financial records & aggregated data Exceptions in other laws & regulations Other laws also make records expressly public (e.g., Coroner s Act) Attorney-client privilege & other privileges August 2022 Pennsylvania Library Association 11
Is My Library Subject to the RTKL?
What is an agency? Agencies are subject to the RTKL Four types of agencies: Commonwealth, local, legislative, and judicial Legislative and judicial agencies only have to provide certain records Commonwealth agencies include the Governor s Office, Attorney General s Office, PennDOT, Department of Health, state universities, and community colleges Local agencies include: Any political subdivision, intermediate unit, charter school, cyber charter school or public trade or vocational school. Any local, intergovernmental, regional or municipal agency, authority, council, board, commission or similar governmental entity. August 2022 Pennsylvania Library Association 13
Are any libraries agencies? Some libraries are agencies There are at least two libraries/library systems that consider themselves to be local agencies: the Free Library of Philadelphia and the Bucks County Free Library. Both libraries have Open Records Officers posted so that the public can file RTKL requests, and neither library has challenged their status before the OOR. We have generally held that libraries are not agencies. Walsh v. Carnegie Library, OOR Dkt. AP 2009-1150 (from our first year) Boyer v. Wyoming Free Library, OOR Dkt. AP 2018-1276 (holding that the Library was not an agency even though it had adopted a Right to Know Policy and followed that Policy) However, many of our Final Determinations pre-date relevant court precedent. The General Assembly likely anticipated that some libraries would be agencies: there is an exemption under the RTKL that covers library circulation records. August 2022 Pennsylvania Library Association 14
Is my library an agency? The answer is it depends. The determination of whether an entity is an agency under the Right-to-Know Law is a fact-specific inquiry. Libraries are not specifically delineated as a local agency under the RTKL; however, entities that are not specifically listed may still be a similar governmental entity and thus an agency. Commonwealth Court looks at three areas to determine if a nonprofit is local agency subject to the RTKL: 1. The degree of governmental control 2. The nature of the organization s functions 3. Financial control Pysher v. Clinton Twp. Volunteer Fire Co., 209 A.3d 1116 (Pa. Commw. Ct. 2019). August 2022 Pennsylvania Library Association 15
#1 Degree of Government Control We must look at organizational structure, purposes, powers, duties and fiscal affairs. Cooperation with federal, state, or local government is not enough to establish that an entity is controlled by government. Appeal of Hadley, 83 A.3d 1101 (Pa. Commw. Ct. 2014) (involving the Oil Region Alliance of Business, Industry and Tourism, which promoted economic development and tourism in Venango County). Neither is contracting with government. Phila. Indus. Development Corp. v. Ali, 17 A.3d 1004 (Pa. Commw. Ct. 2011). How is the board of directors composed? Does the private sector make up a majority of members? In Hadley, the 25- member board had 21 representatives from the private sector and only 4 public sector representatives. Does the entity require a delegation of authority from government to act? Can the entity be disbanded by a political subdivision? Ali. The OOR would be required to look into the circumstances of your particular library. August 2022 Pennsylvania Library Association 16
#2 Nature of Organization s Functions We must look at whether the organization s functions are a substantial facet of a government activity. The functions need not be essential government functions Is the function one that would be a core purpose of a government agency? In Hadley, the Court found that economic development and community stewardship do not constitute governmental functions. It is unclear whether a public library performs a governmental function. The Public Library Code requires libraries established under that Code to provide services to residents and taxpayers, 24 Pa.C.S. 9371(a) is that enough to demonstrate that libraries conduct a governmental function? August 2022 Pennsylvania Library Association 17
#3 Financial Control We must look at the degree of financial control. The mere receipt of government funds does not transform a private entity into a public one. Mooney v. Bd. Of Trustees of Temple Univ., 292 A.2d 395 (Pa. 1972). However, the receipt of funds is relevant to the analysis. [T]he less government financing, the less likely that there [is] government control. Pysher. What is the degree of public funding compared to the degree of private funding? In Hadley, the entity received $180,000 annually through a hotel tax, but the remainder of the entity s revenue was from private contributions and membership dues. The Court found that the government financing is proportionally small. August 2022 Pennsylvania Library Association 18
How do I determine if my library is subject to the RTKL? Spoiler: We cannot tell you. Here are your options: 1. You can search the OOR s Final Determinations for cases involving other libraries. The search function can be found at https://www.openrecords.pa.gov/Appeals/DocketSearch.cfm, and under Agency, type in library. 2. Consult the case law cited in this presentation. 3. Talk to your solicitor. 4. If you believe that it is unlikely that your library is an agency, you may rely upon that decision. You can always deny a RTKL request based on a good faith belief that your library is not an agency and go through the OOR appeal process. The OOR, and if necessary a court, will conduct fact-finding and make the determination. August 2022 Pennsylvania Library Association 19
Why does it matter if my library is subject to the RTKL? Being subject to the RTKL means that you have a variety of obligations and responsibilities. You must have an Open Records Officer and post that information on your website. You must adhere to the RTKL s deadlines and issue timely responses to RTKL requests. You are required to defend and support denials of RTKL requests before the OOR and possibly before an appellate court. All of your records are presumed to be a public record, and you have the burden of proving otherwise. This goes beyond financial records and includes all of your communications related to library business. August 2022 Pennsylvania Library Association 20
Basics of the Right-to-Know Law
Right-to-Know Law Basics The very basics of the Right-to-Know Law RTKL allows people to request state & local gov t records Agencies must respond within 5 business days Can sometimes extend deadline by 30 calendar days Requester can grant additional time must be in writing Can grant or deny request, or a combination of both If any part denied, requester can appeal within OOR15 business days of the mailing date of the Agency s response) (<2.5% of cases) OOR decides cases in 30 days (requester can grant more time) Either side can appeal OOR decision to court within 30 days of the mailing date of an OOR Final Determination(<6% of cases) August 2022 Pennsylvania Library Association 22
Journey of a RTKL Request: Tina Locurto/The York Dispatch vs. North York Borough 1/20/21: Locurto files RTKL request for a forensic audit report conducted by Jeremy Witmer of the company RKL LLC of the Liberty Fire Company commissioned by North York Borough. 1/21/21: North York denies request, stating that the audit is exempt as related to criminal and noncriminal investigations. 1/28/21: Locurto appeals the denial to the Office of Open Records 4/8/21: OOR grants records request, saying audit is a financial record which is clearly subject to RTKL, regardless of the intent for conducting an audit. 4/30/21: North York Boro appeals to Common Pleas Court 8/29/21: Court order affirms OOR; records released. August 2022 Pennsylvania Library Association 23
The RTKL is Not a Confidentiality Law You Can Give Out Public Records! Post commonly sought records on your website: Budgets Contracts Salaries Purchasing Documents August 2022 Pennsylvania Library Association 24
Agency obligations: Must appoint an Agency Open Records Officer ( AORO ). May promulgate regulations and policies necessary for the agency to implement the RTKL. May create your own Request Form but must accept the Uniform Request Form developed by the OOR. Please provide the OOR with the name and contact information for your AORO. August 2022 Pennsylvania Library Association 25
Posting Requirements On your bulletin boards and website: Contact information for the AORO. Contact information for the applicable appeals office (ex. OOR) A form to file a Request. Regulations, policies and procedures of the agency related to the RTKL. August 2022 Pennsylvania Library Association 26
Is It a Public Record? RTKL-708(b): Do any exemptions apply, and if so, are we going to invoke them? For libraries, Section 708(b)(23) exempts from disclosure Library and archive circulation and order records of an identifiable individual or groups of individuals Are there any federal or state statutes, or a judge s order, that make these records non-public ? (Section 306) 24 Pa.C.S. 9375 Privacy of circulation records Is the record protected by privilege? (Section 305) August 2022 Pennsylvania Library Association 27
Payment Issues Agency is only required to provide the record in the current medium (Section 701) Cannot charge for electronic records Inspection: Must allow Requester to use their own equipment to make copies Cannot charge for labor/redaction/legal review Can only charge the actual cost/pass-through costs August 2022 Pennsylvania Library Association 28
Denying Access A denial must include: A description of the requested record The legal and factual grounds for denial (Why isn t it public?) Name, title, signature, business address and phone number of AORO Date of response The procedure to file an appeal with the applicable appeals office. August 2022 Pennsylvania Library Association 29
Appealing a Denial If the agency denies or deem denies a request, or if the requester is not satisfied with the response, the requester may file an appeal within 15 OOR business days of the mailing date of the Agency s response or date of the deemed denial (whichever was first). August 2022 Pennsylvania Library Association 30
Final Determinations from the OOR Are legally binding final orders. Are issued within 30 days of receipt of an appeal unless the parties agree to an extension. Available for review on OOR website, Lexis, and Westlaw. August 2022 Pennsylvania Library Association 31
Request: Emails From Board Member Over Certain Time Period OOR GRANTED appeal: Library response: does not provide official email addresses to Board members, & Board member in question didn t provide us any of his emails Library FAILED to proclaim that it searched its own email system for emails to/from Board member Thus OOR GRANTED access and Library is required to search its email accounts for responsive records August 2022 Pennsylvania Library Association 32
Libraries and the Sunshine Act
The Open Meetings Law the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decision making of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society. Advance Notice and how to attend Observe deliberations Comment prior to decisions August 2022 Pennsylvania Library Association 34
Who is Covered? Applies to any state or local government body and all committees that perform an essential government function and exercises authority to take official action. Making recommendations = official action August 2022 Pennsylvania Library Association 35
Is My Library Board Subject to the Sunshine Act? Once again, the answer is, It depends Not something the OOR has the authority to answer If your board is subject to the Sunshine Act, be aware that committee meetings may be as well Even if not subject to the Act, following it is a good way to effectively communicate your meetings and allow for the public to participate Unsure? Lean towards transparency! August 2022 Pennsylvania Library Association 36
Is It a Meeting? Is there a quorum? (members can phone in ) Is there deliberation? Is there decision making? Beware of email meetings. August 2022 Pennsylvania Library Association 37
What is Not a Meeting? Administrative action v. Agency Business Work Sessions, Conferences, Retreats, etc - Communication is one way (reports from staff) - There is no deliberation - There is no decision making August 2022 Pennsylvania Library Association 38
Public Notice Three days in advance of the first regular meeting of the year, along with all of the remaining meetings Legal notice in a paid newspaper of general circulation -newspaper articlesdon t count -websites don t count -sales circulars don t count Posted at the meeting site August 2022 Pennsylvania Library Association 39
Agendas All agencies must post an agenda of issues to be deliberated on or planned official action at least 24 hours prior to the public meeting. Includes Regular and Special meetings Does not include work sessions, conferences, and Executive Sessions Websites*, agency offices, and meeting sites, and available at the meeting itself *(including other social media platforms i.e.: Facebook) August 2022 Pennsylvania Library Association 40
Public Comment Commenters can be limited to residents and taxpayers Right to comment on issues that are or may be before the board (before any pertinent votes) Board may establish reasonable rules for public comment (time limits, spokespersons, specific v. general) August 2022 Pennsylvania Library Association 41
Executive Sessions Can be held before, during, or after an open meeting, or announced for some future time Complete reason must be announced during the open meeting (Reading v. Reading Eagle) No requirement for minutes No official action can be taken during an Executive Session votes must occur in a public session August 2022 Pennsylvania Library Association 42
Executive Sessions II Allowable Reasons for Executive Sessions: Personnel matters (hiring, firing, discipline) Discussing labor negotiations Considering purchasing, leasing or selling property Consulting with counsel about litigation Avoiding violating privilege or confidentiality Discussing university admission standards Discuss emergency preparedness August 2022 Pennsylvania Library Association 43
Violations The public can object to a perceived violation at any time during the meeting Agencies can cure violations Complaints = public has 30 days to go to court to seek legal relief, or to a District Attorney to investigate alleged criminal intent Meetings can be voided Fines are paid by the officials, not the agency August 2022 Pennsylvania Library Association 44
Additional Resources www.OpenRecords.pa.gov Citizens Guide Agency Guides Final Determinations and Key Court Decisions Open Records Officer Guidebook On Site Training = RA-DCOORTRAINING@pa.gov Twitter Feed = @OpenRecordsPa OOR Phone = 717.346.9903 August 2022 Pennsylvania Library Association 46
