Legal Hotline: RTKL and Public Meeting Records

Legal Hotline: RTKL and Public Meeting Records

PNA Legal Hotline

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 can’t provide records outside the Right to Know Law. Is that right?

A: No, there is nothing in the Right to Know Law 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 Right to Know Law makes clear that formal a RTKL request is 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 outside the terms of the law. The Right to Know 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 Right to Know Law 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 work load.

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 agency time and resources that are expended as part of the administrative process resulting from a RTKL request. In the same vein, proactive public access saves members of the public the time and effort required by the RTKL process. Proactive public access promotes public participation in government decision-making 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.

It is important that agencies provide public access to records being discussed at public meetings so the public can understand public officials’ discussion and provide meaningful public comment prior to any decisions being made. Likewise, when the public is fully informed about the issues and records to be discussed at a public meeting, they can determine whether they need to attend and participate. The terms of the RTKL itself enshrine this common-sense concept into the law under Section 708(b)(10)(ii), which requires public access to records discussed during public meetings held pursuant to the Sunshine Act.

Government operates best when it is aided by an informed, actively involved citizenry, and providing proactive public access to records to be discussed during 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 the PNA Legal Hotline at (717) 703-3080 with questions.