1 Pennsylvania Right-to-Know Law
1.3 Office of Open Records
1.4 Appeals, Fines, and Penalties
2 Pennsylvania Sunshine Act
1.1 "Agencies" Subject to the Act
1.2 Exceptions in the Act
1.3 Public Comment
1.4 Recording Public Proceedings
1.5 Legal Remedies
3 Procedural Due Process
4 Substantive Due Process
5 Equal Protection
Pennsylvania Right-to-Know Law
Taken together, the Sunshine Act and the Right-to-Know Law, often referred to as the Open Records Law, are intended to provide residents of the Commonwealth with first-hand knowledge of the activities of public agencies taken at meetings and access to contents of public records.
The original version of the Right-to-Know Law, enacted in 1957 and amended extensively by Act 100 of 2002, was repealed and replaced by Act 3 of 2008. The earlier versions of the Right-to-Know Law were designed to permit the examination, inspection, and duplication of defined “public records” of “public agencies.” Act 3 of 2008, hereinafter referred to as “the Law,” expands these rights and makes fundamental changes to the transparency of governmental operations in Pennsylvania. Most notably:
- The rights under the Law are extended to any legal resident of the United States and other defined “agencies.”
- Any record in the possession of a “Commonwealth agency” or a “local agency” is presumed to be public. Similarly, defined legislative records of legislative agencies and financial records of judicial agencies are also presumed to be public. Such records are shielded from disclosure only if the record is specifically exempt under the Law, protected by a privilege, or exempt from disclosure under another law or by judicial order or decree.
- The burden of proving that a record is not public is on the agency denying access to the record.
The Law imposes administrative requirements on all agencies. Each agency must maintain an “open records officer” and must post information related to open records requests at its physical location and on its website if it maintains one. The open records officer is the designated agency administrator of requests under the Law.
If a record is subject to disclosure, it must be provided in the medium (i.e., paper or electronic form) requested if it exists in that medium. An agency may fulfill named or anonymous written (including e-mailed or faxed) or verbal requests. Upon receipt, agencies generally have five business days to respond to a request unless certain legal or logistical grounds exist to extend the time. If the agency does not respond within five days or within an extension as provided by the Law, the request is deemed denied.
An agency may charge for duplication, certification, postage and enhanced electronic access. An agency is explicitly prohibited from charging fees other than those authorized by law. Municipalities and other “local agencies” are required to use the duplication fee schedule promulgated by the Open Records Office. Prepayment of fees is required prior to providing records if the fees are expected to exceed $100.
As previously mentioned, the Law contains a list of exemptions at Section 708. The exemptions include documents that could affect private safety or public or infrastructure security, certain internal draft documents and academic materials, certain trade secrets, collective bargaining and personnel information, medical history, and certain private personal information. Because the exemption provision of the Law covers a spectrum of information beyond the scope of this article, and permits access to certain subsets of otherwise exempt types of records, municipal officials should carefully review the Law when determining whether an exemption applies to a requested record. An agency must redact exempt materials from a requested record that is otherwise subject to disclosure and provide the redacted document to the requester. The Law also provides that a record may be exempt if other federal or state law prohibits disclosure. A court may also prohibit a record from being disclosed.
Office of Open Records
The Law establishes the Office of Open Records within the Pennsylvania Department of Community and Economic Development. The Office is charged with providing information, training, and advisory opinions related to the Law. The Office also acts as the forum for appeals from decisions of Commonwealth agencies and local agencies, including municipalities, under the Law. The Office may resolve disputes through a mediation program in addition to formalized appeal hearings. The Office maintains a website, http://openrecords.state.pa.us, which contains a wealth of information about the Law.
Appeals, Fees, and Penalties
It is important to note that although an agency is permitted to respond to verbal requests, a requester can avail him/herself of the right to appeal from an agency decision only if he/she first makes a written request for a record. In the case of an explicit or a deemed denial, a requester has 15 business days from the mailing date of the denial, or the date of the deemed denial, to appeal to the agency appeals officer. The appeals officer has 30 days upon receipt of an appeal to render a final decision. Within 30 days of mailing the appeal decision, a request for a subsequent review by a court may be made. Notice of appeals to court must be provided to the agency, the requester, and the Office of Open Records or the designated appeals officer in accordance with court rules.
The Law provides that a reversal of an agency decision by a court may result in the awarding of attorney fees and costs to the requester if the agency acted in bad faith with wanton disregard for the Law, or in a manner based on an unreasonable interpretation of the Law. Conversely, the court may award fees and costs, or a portion thereof, to the agency if the court determines that the appeal was frivolous. Agencies may incur civil penalties of not more than $1,500 for denials made in bad faith. An agency or public official who does not promptly comply with a court order related to the Law is subject to a civil penalty of not more than $500 per day until the records are provided.
Pennsylvania Sunshine Act
The right of the public to be present at all meetings of certain defined public bodies (i.e., “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.”
In addition to guaranteeing this right, the Sunshine Act also requires the advertising and public notice of agency meetings and provides for reasonable public comment during board, council, or authority meetings. It also provides for limited exceptions and establishes penalties for violations of the act.
“Agencies” Subject to the Act
“The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all the following: the General Assembly, the executive branch of the government of this Commonwealth, including the Governor’s Cabinet when meeting on official policymaking business, any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth or any State, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all State-aided colleges and universities, the councils of trustees of all State-owned colleges and universities, the boards of trustees of all State-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action. The term does not include a caucus or a meeting of an ethics committee created under rules of the Senate or House of Representatives.” Senate and House of Representative caucuses and meetings of ethics committees are not subject to the Sunshine Act.
The Sunshine Act does not prohibit the nonpublic gathering of less than a quorum of the agency body, e.g., two members of a five-member board of supervisors. It also does not apply to meetings where only “administrative action” is taken by the body. “Administrative action” is defined as “the execution of policies relating to persons or things as previously authorized or required by official action of the agency adopted at an open meeting of the agency. The term does not, however, include the deliberation of agency business.” The Pennsylvania Supreme Court held that closed-door fact-finding meetings conducted by a quorum of the governing body did not violate the Sunshine Act because the gatherings were held for informational purposes only and did not involve deliberations. The court noted that “merely learning about the salient issues so as to reach an informed resolution at some later time does not in itself constitute deliberation.” The law also provides that during meetings, all votes of agency members must be made in public.
Exceptions in the Act
Executive Sessions. Defined as a meeting from which the public is excluded, executive sessions may occur for only one of the six purposes:
- To discuss matters involving employment or performance of officers or employees of the agency, provided that any affected individual is given the opportunity to request, in writing, that the meeting be held in public.
- To hold meetings involving collective bargaining, labor relations and arbitration.
- To consider the purchase or lease of real property.
- To meet with an attorney or other professional advisor regarding litigation or issues where an identifiable complaint is expected to be filed.
- To discuss agency business which, if discussed in public, would lead to the disclosure of information protected by law, including ongoing investigations.
- To hold discussions of academic admissions or standing by the governing bodies of State-owned, State-aided, or State-related colleges or universities. Executive sessions may be held during an open meeting or at the conclusion of an open meeting or announced for a future time. Prior to convening an executive session, the agency must announce with proper specificity the purpose of the executive session. If the session is not for a future time, the members of the agency must be notified of the session 24 hours in advance.
Working Sessions. Although most agency bodies may no longer hold “work sessions” to avoid the act’s requirements, boards of auditors may do so for the purpose of discussing and deliberating accounts and records, provided any official action is then taken at a subsequent public meeting.
Other Confidential Communications. The act exempts from its scope the “deliberations or official actions which, if conducted in public, would violate a lawful privilege or lead to the disclosure of information or confidentiality protected by law, including matter related to the investigation of possible or certain violations of the law and quasi-judicial deliberations….”
Section 710.1 of the act allows residents of a political subdivision, or taxpayers in the political subdivision or authority created by the political subdivision, a reasonable opportunity to “comment on matters of concern, official action or deliberation which are or may be before the board or council prior to the taking of official action.” If a reasonable opportunity for comment is allowed before official action, the official action cannot be voided solely on the basis of lack of comment on the action. Also, any person may raise an objection to a perceived violation of the act at any time during a meeting of a board or council of a political subdivision or board of an authority.
The language of the act appears to apply the public comment provisions only to “the board or council of a political subdivision or of an authority created by a political subdivision.” This section also seems to limit the right to public comment to those who reside or pay taxes in the political subdivision, although anyone may object to perceived violations of the act.
Anyone attending a meeting of an agency may record the proceedings, subject to the adoption and enforcement of reasonable rules, if any, by the agency, although the Senate and the House of Representatives may adopt rules regarding the recording and/or broadcast of sessions, meetings, and hearings.
A proceeding may be brought before the Commonwealth Court for violations of the act by Commonwealth agencies or before the county court of common pleas for violations by any other agency. The action must be brought within 30 days of a meeting that was open to the public, or 30 days from the discovery of a meeting that was not, provided that no more than one year has elapsed since the alleged closed meeting. The court at this proceeding has the authority to find that all official action taken in violation of the act is void, may render a declaratory judgment, or provide injunctive relief. Agencies may cure the violation by ratifying any invalid decisions at a subsequent public meeting.
Concurrently with proceedings before the common pleas court or Commonwealth Court, a summary offense proceeding may be brought against an agency member before a district justice whereby a conviction of intentionally violating the act would result in fines, plus any costs of prosecution, as follows:
- For a first offense, a fine of at least $100 and not more than $1,000.
- For a second or subsequent offense, a fine of at least $500 and not more than $2,000.
Attorney fees may be awarded to any petitioner when the court determines that an agency “willfully or with wanton disregard” violated the act. Conversely, if the court determines that a frivolous action with no “substantial justification” was brought by a petitioner, the court shall award the prevailing party reasonable attorney fees and costs of litigation or the appropriate portion of the fees and costs.
Procedural Due Process
In order to protect persons from the unjustified deprivation of life, liberty or property by the government, there must be some method by which they can contest the means by which the government proposes to deprive them of protected interests; i.e., they must be afforded procedural due process. Questions may arise concerning the adequacy of the procedures provided to contest the deprivation of a protected interest. While the exact procedures appropriate to one set of facts may not be required under differing circumstances, there are certain fundamental or basic aspects of procedural due process that should be considered:
- Notice. Sufficient notice should be given in order to apprise interested parties of the pendency of the action, afford them an opportunity to present their objections, and enable them to determine what is being proposed and what must be done to protect their interests.
- Hearing. Individuals cannot be deprived of property or liberty interest unless they are provided some form of hearing in which they will have the opportunity to be heard.
- Impartiality. In order to provide procedural due process to an individual who may be subject to a deprivation of his or her interests, it is important not only that a hearing be provided, but also that the tribunal or decision maker not be predisposed against the individual. An impartial decision maker is considered to be essential.
- Counsel. An individual should be permitted to be represented and assisted by counsel, although it is not necessarily required that counsel be provided to one unable to afford his own. Generally speaking, an indigent has an absolute right to appointed counsel only where he may lose his physical liberty if he loses the adjudication.
- Evidence. Especially in cases where a decision rests on questions of fact, it may be necessary to provide an individual with not only the ability to confront and crossexamine adverse witnesses, but also the opportunity for discovery, i.e., investigation and accumulating evidence, in order to give him or her a chance to show that the facts upon which the proposed deprivation is based are untrue.
- Decision. Although a full opinion or formal findings of fact and conclusions of law may not be required, the tribunal should provide the reasons for its decision and indicate the evidence upon which it was based.
Substantive Due Process
In addition to the requirement that municipalities provide “procedural due process,” municipalities also are impacted by the correlative doctrine of “substantive due process.”
Substantive due process involves a right that the courts have construed as being derived from the protections afforded by the Fifth and Fourteenth Amendments to the United States Constitution and the Declaration of Rights or Article I of the Pennsylvania Constitution. It is meant to ensure that a person’s life, freedom or property cannot be taken without appropriate governmental justification.
The substantive due process requirement for appropriate justification exists independently from the procedural due process requirement that there be constitutionally adequate procedures through which an individual can protest the government action; i.e., the right to substantive due process does not depend on the fairness of the procedures provided to challenge the government’s action.
If government action is taking away something of value that could be considered “life,” “liberty” or “property,” then, regardless of the procedures used, the questions remain concerning whether the goal being pursued by the government constitutes a valid state interest, and whether there is a sufficient relationship between the means being used to reach that goal and the goal itself.
There are different tests for substantive due process, depending on whether fundamental or nonfundamental rights are involved:
- In the case of governmental action impairing fundamental rights (e.g., the rights to marry, to have children, to direct the education and upbringing of one's children), a strict scrutiny test is used. The strict scrutiny test requires that, if government action impairs a fundamental right, the objective being pursued by the government must be “compelling” and not merely “legitimate.” The strict scrutiny test also requires that the means chosen to achieve that compelling end must be “necessary”; i.e., there must not be any less restrictive means that would do the job just as well.
- In the case of governmental action impairing nonfundamental rights (e.g., nearly all economic and “social welfare” regulation), the “mere rationality” test is used. This “mere rationality” or rational basis test requires that the government is pursuing a legitimate objective (e.g., most economic and social welfare regulation), and that it do so with a means that is rationally related to that objective.
The Fourteenth Amendment of the United States Constitution provides that “[n]o state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws.”
- The application of this clause constitutes a control on how various classifications (not only those based on race, but also those based on other attributes) can be legitimately used by the government.
- Like due process protection, the “equal protection” applies to governmental action, but generally not to action taken by private individuals.
- The issue of equal protection may arise when the government allows people in one classification to do a thing, but denies this right to people in another classification where there is no legitimate and applicable distinction between the classifications.
- Generally speaking, equal protection is intended to have the government treat people in comparable circumstances similarly. One of its purposes is to prevent discrimination.
- Depending on the circumstances, violations of equal protection are analyzed under one of three standards of review:
- In those cases in which an ordinance or its application utilizes a classification that does not involve either “suspect classification” (e.g., race or national origin) or a “quasi-suspect” category (e.g., gender), and in those cases in which an ordinance or its application utilizes a classification that does not impair a “fundamental right” (e.g., First Amendment rights), then the “mere rationality” test is used. All that is required is that the classification used by the government must conceivably bear some rational relationship to a legitimate governmental purpose sought to be achieved.
- When an ordinance or its application involves a “suspect” classification or utilizes a classification that impairs a “fundamental right,” it will be strictly scrutinized and will be upheld only if there is a compelling interest to be achieved, and the classification is necessary to further that interest. This “strict scrutiny” test is the same as that for substantive due process when a “fundamental right” (e.g., the right to privacy) is involved.
- Under some limited classifications (e.g., gender and illegitimacy), an intermediary test is applied. This test has a higher standard than the “mere rationality” test but not one as demanding as the “strict scrutiny” test. Under this middle level test, the classification used must be “substantially related” to an “important” governmental objective.