Rights to Public Information Under the Sunshine Act During COVID-19
Although the vaccination process for COVID-19 has begun in the United States and other countries, some have estimated that it could take until mid-summer for enough of the United States to be vaccinated to allow a greater return to normalcy. As such, many of the moves to remote business are likely to continue for a considerable time, including government meetings that individuals are legally entitled to attend.
In Pennsylvania, the Sunshine Act requires that the public be given notice of and access to any official agency meetings. The COVID-19 pandemic has created new issues regarding how the public can access such meetings and comment on them.
The country has been celebrating Sunshine Week for over a decade, and it highlights public access to information generally. In Pennsylvania, individuals celebrate both the Sunshine Act and the Right-to-Know Law. These laws mandate access to governmental information. The Sunshine Act specifically requires that any official meeting held by an agency is conducted publicly, and such meeting must have been announced far enough in advance that people have time to plan to attend. The public is also permitted under this law to comment on agency action and record meetings.
In April 2020, the General Assembly amended the Sunshine Act to authorize public agencies to hold remote public meetings during the pandemic. The agency must still provide advance public notice of the remote meeting and allow for public participation through the teleconferencing or videoconferencing systems used to hold the meeting. The Lackawanna County Court of Common Pleas recently addressed these amendments in Kelly McGrath v. Board of School Directors of the City of Scranton, which arose after a school district employee sued concerning a public meeting during which the school board voted to terminate her employment and healthcare insurance coverage.
Both parties agreed on many of the facts of this case, including that the school board scheduled the regular meeting to consider furloughing and terminating insurance for over 200 employees, the school board notified the public that the meeting would be on Zoom, and that the public could “view the meeting” on the YouTube Channel run by the school district. Prior to the meeting, however, the school district discovered that YouTube was having technical issues that would prevent them from livestreaming. Both parties also agreed that the school district considered whether holding the meeting anyway could constitute a violation of the Sunshine Act knowing that some members of the public would not be able to view the meeting as a result of the technical difficulties, but the school board continued with the meeting anyway.
Two hours into the meeting, the school district began livestreaming on their Facebook page instead, though it did not notify the public of this alternate avenue for accessing the meeting. Furthermore, not everyone who registered to publicly comment at the meeting was given access to do so. In light of these facts, the court determined that the school board did violate the Sunshine Act by taking official actions in this manner. Thus, the Court enjoined the District from furloughing the employees and terminating their health insurance absent holding a public meeting in full compliance with the Sunshine Act.
Like most government bodies and businesses in the United States, the school district has been conducting its meetings virtually since March 2020 due to the pandemic. Unfortunately, the school district only purchased a Zoom subscription allowing up to 100 participants at a time on a single call. As such, when some of those who had requested to comment on the decision to furlough and terminate health insurance for hundreds of employees attempted to enter the Zoom meeting to make their public statements, they were unable to do so because the Zoom call had reached its maximum capacity.
It should be noted that, even with a vaccine approaching, the massive global shift to remote working has led many to wonder if a return to normalcy might now include more virtual meetings. If so, more lawsuits like this one could arise in the coming months and years, giving highlighting the potential importance of this case moving forward.
At a minimum, because the virus vaccinations are still some months out, the public and local governments should heed the holdings from this case in the interim. One primary issue includes providing sufficient access to individuals for public comment, as the participant maximum prevented such comments in this case. Since many entities are using Zoom, the participant maximum setting is one that must be kept in mind during these meetings.
Another issue concerns being prepared to communicate changes in streaming or access to meetings when technical difficulties arise. In this case, technical problems with YouTube led to belated livestreaming on Facebook even though YouTube was the publicized avenue for viewing the meeting. Should such difficulties arise, entities should publish and alert the public to the new area for viewing the meeting as soon as possible. Entities could also always plan to stream through multiple platforms to ensure an even lower likelihood that people would be unable to access the meeting.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.