Legal Hotline: Act 77 of 2020 (HB 2463)

Legal Hotline: Act 77 of 2020 (HB 2463)

PNA Legal Hotline

Q: What does HB 2463 (Grove), Act 77 of 2020, mean for journalists seeking access to records from Commonwealth agencies during the COVID-19 disaster declaration?

A:  The law means that commonwealth agencies must respond to RTKL requests after a disaster declaration has been issued by the Governor, even if the agency’s physical office is closed. The law also makes certain data and information underlying decisions and policies implemented during a disaster emergency public records, subject to the RTKL exemptions.

In the wake of the disaster declaration related to the COVID-19 pandemic, many commonwealth agencies put the RTKL process on hold, with many issuing summary denials or simply not responding to requests. Some commonwealth agencies made good faith efforts to provide access to information to PNA members outside the context of the RTKL, but that process did not involve the guarantees and protections afforded under the RTKL such as the presumption of access and right to appeal. The suspension of the RTKL process has been problematic for many PNA members seeking access to records during and about the COVID-19 pandemic.

HB 2463 (Act 77 of 2020) is intended to preserve the RTKL process during disaster declarations and provide public access to certain information like data, processes and quantitative or predictive modeling used as the basis for policies and decisions enacted during a disaster declaration.

It is important to note that Act 77 applies to “commonwealth agencies” only, and that term is defined as:

“Any agency or commission of the executive branch under the policy, direction or supervision of the Governor.”

The term does not include judicial or legislative agencies, and it does not include “local agencies” like school districts, cities, townships, municipal authorities and intergovernmental units, none of which are covered by Act 77. The OOR has suggested non-commonwealth agencies look to the OOR’s guidelines on Act 77 for guidance.

The law ensures transparency from commonwealth agencies during disaster declarations while recognizing the process must address safety concerns for public employees responding to requests. In order to strike that balance, the Act requires the Office of Open Records (OOR) to publish guidelines for commonwealth agencies specifying how the agencies are required to respond to RTKL requests made during a disaster declaration when the Governor has ordered the agency to close its physical location. These guidelines must be issued within 5 days of the law’s enactment.

The OOR released Act 77 guidelines on Friday, July 31. The OOR has made clear that the guidelines will protect the health and safety of agency employees responding to requests and ensure information made public under the Act remains subject to the exemptions in the RTKL. Among the provisions in the Act 77 guidelines, commonwealth agencies will be required to announce an office’s physical closure and any changes to its RTKL practices within three business days of closure. This announcement must be placed on the agency’s website dedicated to the RTKL, on social media and provided to the OOR. The guidelines also require agencies to enable remote responses by an agency’s RTKL officer and will not require agencies personnel to enter a building that has been ordered closed by the Governor. For requests that require entry into closed buildings or physical inspection, the agency must provide access to the records’ contents and an estimate of the time expected for full access. You can read the OOR’s full Act 77 Guidelines here.

PNA routinely advises journalists to seek access to information informally, outside the context of the RTKL when possible to avoid the administrative barriers and delays that can result, and journalists should continue to do so. This advice is echoed in the OOR’s Act 77 guidelines.  If informal requests for access are not successful, journalists can file formal, written RTKL requests consistent with the law, when appropriate. As always, the PNA Legal Hotline is available to members seeking assistance with the formal and informal records request process.

As always, this not intended to be, nor should it be construed as, legal advice. Please contact the PNA Legal Hotline at (717) 703-3080 for assistance.