Q: On Monday, I asked a school district for copies of records that will be discussed during its regular public meeting scheduled for Friday. They told me to file a Right-to-Know request, and when I did, their response was to invoke the 30-day extension for legal review. The meeting will be long over by the time the RTKL process plays out and the school said they cannot provide records outside the Right-to-Know Law. Is that right?
A: No, there is nothing in the Right-to-Know Law (RTKL) that prohibits agencies from providing public records informally or proactively. In many cases, including this one, agencies should provide proactive public access outside the formal RTKL process to promote public access and transparency and to conserve public resources.
The RTKL makes clear that formal, written requests are not required by law. Section 702 states:
“[A]gencies may fulfill verbal, written or anonymous verbal or written requests for access to records under this act. If the requester wishes to pursue the relief and remedies provided for in this act, the request for access to records must be a written request.”
Further, Section 703 states that “[A] written request for access to records may be submitted” to an agency. There is nothing in the law that requires requesters to use the formal RTKL process to obtain public records and nothing that prohibits agencies from providing access informally. The law provides a legal framework for public access, but public records can be, and in many cases should be, provided proactively and outside the context of the formal RTKL process for efficiency and transparency purposes. The formal process is best reserved for situations where there is some question about the public nature of a record, but when a record is clearly public, the law can create unnecessary barriers to access and needlessly increase administrative workload and waste public resources.
Where records are clearly public, like meeting minutes, agendas and records discussed during public meetings, providing proactive public access benefits the agency as well as the public. Proactive public access saves the agency time and public resources that would have to be expended during the administrative RTKL process. In the same vein, proactive public access saves the public the time and effort required by the RTKL process. Proactive public access promotes public participation in government while aiding government efficiency.
Proactive, informal public access can take many forms including posting records on an agency’s website, if the agency maintains one; providing access via email, mail or fax upon request without the need for a formal request; and having copies of records available at a public meeting for anyone interested in following along in the discussion.
Regarding records discussed during public meetings, it is important that agencies facilitate public access so the public can understand the discussion and provide meaningful public comment prior to decisions being made. The terms of the RTKL itself enshrine this common-sense concept into the law under Section 708(b)(10)(ii), which expressly requires public access to records discussed during public meetings held pursuant to the Sunshine Act.
The RTKL and Sunshine Act must be construed in harmony and in the public interest. Government operates best when it is aided by an informed, actively involved citizenry, and providing proactive public access to records that will be discussed during public meetings promotes that goal while conserving public and private resources. The school district in this case should provide access to the records outside the formal RTKL process and prior to the meeting where they are to be discussed.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact your news organization’s private counsel or the PNA Legal Hotline at (717) 703-3080 with questions.