FOREWORD

Open Records. The Pennsylvania Open Records Law (popularly known as the “Right to Know” Act) was originally enacted in 1957. In 2002, the Pennsylvania Assembly amended the Act, setting forth for the first time a number of procedures and requirements governing, inter alia, requests, the agency’s response and appellate review.

In January 2008, Pennsylvania enacted a new Right to Know Act. While much of the Act is completely new, it borrows and modifies some of the procedures adopted by the 2002 amendments. The most significant change is that the new act has a presumption that state and local agency records are open for inspection and copying and places the burden on the government agency to show that they are not public records to which access is required. The new act has a broad definition of what is a record, subject to a much longer list of exemptions. The new act extends to certain entities not previously subject to the Right to Know Act. For example, it applies to the General Assembly, state related institutions (Penn State, Temple, the University of Pittsburgh and Lincoln) and government contractors performing governmental functions on behalf of an agency. The new act expands upon the procedures governing access and appeals that were first promulgated in the 2002 amendments; it shortens agency response times and increases the civil penalties that can be awarded against an agency acting in bad faith. And the new act creates an Office of Open Records that will disseminate information, handle appeals, issue advisory opinions, create a mediation program, and ensure compliance with the act’s requirements.

The Act became fully effective on January 1, 2009. The Act’s mandated creation of an Office of Open Records was “effective immediately” upon its passage. Section 3104. And the Act’s requirements for “state-related institutions” and “state contract information” were effective July 1, 2008.

A distinctive feature of Pennsylvania law is the existence of a multitude of individual provisions, separate from the Right to Know Act and scattered throughout the Pennsylvania statutes and the Pennsylvania Administrative Code, either permitting or prohibiting access to particular records. Courts have read these statutes and regulations into the Right to Know Act. Thus, in addition to determining whether the Act itself applies, anyone seeking an agency record in Pennsylvania must also carefully review the statutes and regulations governing the agency with which she is dealing, to determine whether any additional access provisions exist.

Open Meetings. The current Pennsylvania Open Meetings Act (the “Sunshine Act”) took effect on January 3, 1987. The Act was in large part a result of the efforts of the Pennsylvania Newspaper Publishers’ Association (now Pennsylvania Newspapers Association), and was intended to eliminate some of the problems with the previous Sunshine Act, 65 Pa. Cons. Stat. § 261, et seq.

The effectiveness of the old Act had been substantially undercut by the Commonwealth Court’s decision in Judge v. Pocius, 367 A.2d 788 (Pa. Commw. Ct. 1977). That decision held that only the act of formal voting had to be conducted in public, and that “preliminary activities of deliberation, discussion and decision which lead up to affirmative formal action” could be conducted in private.

The 1987 Act expressly forbids this practice. It also prohibits secret ballots and requires that all votes be publicly cast and that roll call votes be recorded. Finally, it contains a strong policy statement which can help to persuade a court of the legislature’s intent:

(a) Findings. — The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decisionmaking 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.

(b) Declarations. — The General Assembly hereby declares it to be the public policy of this Commonwealth to insure the right of its citizens to have notice of and the right to attend all meetings of agencies at which any agency business is discussed or acted upon as provided in this act.

See In Re Condemnation by West Chester Area Sch. Dist., 50 Pa. D. & C. 4th 449 (Chester Cty. C.C.P. 2001) (giving explanation of the Sunshine Act’s purpose).

Though the 1987 Act is stronger than the prior statute in terms of requiring public discussions, it also provides for a greater number of exceptions to the openness requirement. The law provides a greater number of reasons to conduct executive sessions (for example, to consider the purchase of real estate and to discuss pending or threatened litigation) and permits such sessions to interrupt an open meeting, or to be held at the end of a meeting, or at an announced time in the future.

The law also permits two other exceptions to the openness requirement. First, an agency is not required to take administrative action — defined as the execution of policies either previously authorized or required by prior official action — in public. Second, the law permits an agency to participate in a closed “conference,” defined as a seminar or convention, or a briefing organized by federal or state officials. Agency business may not be deliberated at such a conference.

The outline that follows will occasionally cite to a decision under the pre-1987 version of the Sunshine Act if it appears that the recent version would be interpreted similarly.