Accessing Public Records in Pennsylvania During the Pandemic

The COVID-19 pandemic has decreased government transparency in Pennsylvania.  After Governor Wolf declared a statewide disaster declaration in March 2020, many agencies suspended processing of Right-to-Know Law (RTKL) requests.  In response, the General Assembly unanimously passed Act 77 of 2020 to ensure Commonwealth agencies continue to timely process RTKL requests.  The Office of Open Records (OOR) has issued guidelines governing responses by Commonwealth agencies RTKL requests for the remainder of the disaster emergency.

When the General Assembly revamped the RTKL in 2009, one of the primary changes was the imposition of strict deadlines to ensure prompt responses to requests for public records.  Section 901 of the RTKL requires agencies to “respond as promptly as possible under the circumstances existing at the time of the request.” 65 P.S. § 67.901.  An agency must respond within five business days of the receipt of a request, Id., unless the agency determines that a 30-day extension is warranted under Section 902.  In practice, the “promptly as possible” and five business day requirements are generally ignored as most agencies invoke a thirty-day extension and respond on the last day permitted.  The Pennsylvania State Police openly admits that it invokes a 30-day extension in response to every RTKL request.

The suspension of processing of requests during the pandemic stretched response times to nearly three months.  Members of the General Assembly became frustrated, especially when Governor Wolf refused to reveal non-essential business waivers and data used to implement stay-at-home orders.

Interestingly, Act 77 only applies to Commonwealth agencies under the Governor’s jurisdiction.  The OOR has issued non-binding guidelines for responding to RTKL requests during the pandemic, which apply to all other state and local government agencies in Pennsylvania.  The guidelines recommend that agencies in counties in a “yellow” or “green” status process RTKL requests as they would under normal circumstances.  Since no counties have been in the “red phase” since June 5, 2020, there is no reason for any agency to suspend processing of RTKL requests, barring a return to the “red phase.”

Act 77 prohibits the Governor from directing a Commonwealth agency from ignoring requests for records during the disaster declaration.  It prohibits Commonwealth agencies from suspending the processing of RTK requests.  It allows a requester to petition the Commonwealth Court to enforce the RTKL’s deadlines.  It prohibits agencies from denying requests except as permitted by the RTKL.

Act 77 also requires the Governor to disclose the following pandemic related information:

  • data used for actions taken in relation to the disaster declaration;
  • the data collection process for actions taken in relation to a disaster declaration;
  • quantitative or predictive models used for any actions taken in relation to the disaster declaration.

Governor Wolf refused to sign the bill, however, Act 77 became law due to the passage of time.  Governor Wolf issued a statement criticizing the law on the basis that it would allegedly require state employees to work at the agency’s physical location.  The OOR’s guidelines, however, should alleviate Governor Wolf’s concerns.

The guidelines require agencies to notify the public of pandemic related policies, to process responses remotely, and to respond to requests within the RTKL’s deadlines.  If an agency’s physical location is closed and that is the only place records may be retrieved, the agency must provide the requester with an estimate of time it will take to access the records.  To the extent possible, the contents of a record shall be made accessible even when the record is physically unavailable.  Agencies must make a reasonable attempt to accommodate records inspections, even if the agency’s physical location is closed, by providing electronic copies, or, if not possible, giving the requester an estimate of time it will take to schedule inspection.

The OOR asks requesters to consider whether a public records request can wait and be made after the disaster declaration has ended and to consider the circumstances and extend common courtesy and patience to the responding agency.  The OOR reminds agencies and requesters that the formal RTKL process is not required and that informal request and responses can be more efficient because they come with fewer administrative requirements.

We are experiencing extraordinary times.  The OOR concluded its guidelines with sage advice: “Reasonableness is key. The RTKL works best as a collaborative effort rather than an adversarial process.”  Act 77 and the OOR’s guidelines ensure transparency survives during this crisis.


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