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RTKL and COVID-19

The RTKL and the Coronavirus (COVID-19)

12 MARCH 2020 / ERIK ARNESON
The Office of Open Records has issued the following advisory regarding Pennsylvania’s Right-to-Know Law and the coronavirus (COVID-19).
Last updated March 23 at 11:38 a.m.

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The OOR encourages both requesters and agencies to be considerate and patient while working with each other, especially during the current emergency.

Requesters: Unless you have an urgent need to access records, please do not file any new RTKL requests at this time. Additionally, in most cases, inspecting records will not be possible during the emergency; if a request is necessary, please seek copies of records (preferably electronic).

Agencies: Please remember that transparency builds trust, especially in times of crisis.

Advisory regarding RTKL requests:

The Right-to-Know Law includes strict deadlines for agencies receiving a RTKL request. In the event that an agency implements a Continuity of Operations Plan (COOP) or takes similar steps in response to an official emergency declaration (such as the March 6 disaster emergency declaration signed by Governor Wolf), the issue of how Right-to-Know Law requests will continue to be handled should be part of that plan. The agency should take steps to notify the public of the agency’s plan with regard to RTKL requests. (This can include, for example, an auto-reply from the email address designated to receive RTKL requests.)

If an agency is closed on a given day, that day is not a “business day” and does not count toward the five business days referenced in Section 901 of the RTKL, which governs the time period under which an agency must respond to a request.

To the extent that an agency is unable to comply with the RTKL’s strict deadlines due to bona fide issues related to an emergency declaration, 35 Pa.C.S. § 7501(d) allows agencies under a “declaration of disaster emergency” (including Governor Wolf’s statewide declaration) to temporarily suspend the need to comply with certain laws and requirements. The OOR encourages agencies to consult with their solicitor before invoking 35 Pa.C.S. § 7501(d) as it relates to the RTKL.

Advisory regarding RTKL appeals:

The OOR is committed to protecting due process and ensuring that both requesters and agencies have a full and fair opportunity to meaningfully participate in any RTKL appeal filed with the OOR. To that end, the OOR is now invoking an indefinite extension on all appeals filed.

Any appeal filed electronically (i.e., via the OOR’s online appeal form or via email) will be docketed. To the extent possible, the OOR will work to resolve the appeal. In a situation where either the agency or the requester is (or both are) unable to meaningfully participate in the appeal due to the coronavirus emergency, the OOR’s indefinite extension will ensure due process by delaying the appeal only as long as it takes for all parties to be able to participate.

Likewise, the OOR’s mediation process will continue, to the extent possible, for both ongoing and new mediations. Although it may take longer to schedule mediation discussions (many of which are handled via teleconference), the OOR will continue to do so. We appreciate everyone’s patience in this process.

Because every staff member of the OOR is working remotely, we are currently unable to receive postal mail. Accordingly, we encourage requesters and agencies to use email for all appeal submissions at this time. Any RTKL appeal filed by postal mail will not be docketed until the OOR returns to normal operations. (Such appeals will not be prejudiced as to timeliness.) Similarly, in any RTKL appeal involving a situation where one or more of the parties must be contacted by postal mail, the OOR’s indefinite extension will serve to protect due process.

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If you have any questions regarding this article or the RTKL, please contact Catherine (“Kate”) Harper, Eric B. Smith, James M. Jacquette, or Andrew Knox.

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