Legal Hotline: Sunshine Act Agenda Requirements

Legal Hotline: Sunshine Act Agenda Requirements

Q: The Sunshine Act requires agencies to provide agendas in advance of public meetings, but some local agencies are providing agendas that list generic or all-encompassing subjects that have little meaning. Can they do that?

A: The Sunshine Act requires agencies to provide meeting agendas in advance of and during public meetings. This law was enacted to promote government transparency and foster public attendance and participation at public meetings. To accomplish that goal, detailed, specific agenda items are necessary.

Senate Bill 554, Act 65 of 2021, requires agencies covered by the Sunshine Act to provide a meeting agenda, including, at a minimum, a listing of each matter of agency business that will be, or may be, the subject of deliberation or official action at the upcoming meeting at least 24 hours in advance.

If the agency maintains a website, the agenda must be posted on the website no later than 24 hours before the meeting is scheduled to take place. The agenda must also be posted at the meeting location and must be made available to individuals attending the meeting.

If an agency plans to talk about or take official action on a matter of agency business, it must note it on the agenda so that the public is informed and can attend the meeting, if they are so inclined.

The law does not explicitly define the level of detail required to appear on an agenda, but the letter and intent of the law make clear that agenda items must provide meaningful information that enables the public to understand the specific issues that will be discussed or acted upon. Generic or overly broad agenda items would not be consistent with the law. Moreover, the Office of Open Records has taken the position that agencies should “avoid general cryptic terms” and “provide as many specific concrete details as possible.” You can read the OOR’s position here.

The law also limits the actions an agency can take on non-agenda matters. Agencies may not take official action on agency business that was not included on the agenda. There are a few limited exceptions to this general rule. First, an agency can take official action on a non-agenda item where there is a real or potential emergency involving a clear and present danger to life or property. This is the same standard that applies to “emergency meetings” under the Act. Second, an agency may take action on a non-agenda item if the issue arose within 24 hours of the meeting and is de-minimus (e.g. minor) in nature and does not involve the expenditure of funds or entering into a contract or agreement by the agency. Finally, agencies may take action on non-agenda items that arise during a public meeting, but only if the matter is raised by a resident or taxpayer and the agency may only take official action to refer the matter to staff for research and inclusion on the agenda of a future meeting, or, if the matter is de minimis and does not involve the expenditure of funds or entering into a contract or agreement, the agency may take official action on the matter.
The law also allows an agency to amend the agenda during a public meeting and subsequently take official action but only if a majority of the agency members present vote to do so. This vote, like all other official action, can only take place after there has been an opportunity for public comment, and the agency is also required to announce the reasons for the changes prior to the vote so that the public can provide meaningful public input. If an agency votes to amend an agenda during a meeting, the law requires the amended agenda to be posted to the agency website, if one exists, and posted at the agency’s principal office no later than the first business day following the meeting where the agenda was changed. The law also requires the official minutes to include the substance of the agenda change, a record of the vote and the reasons for the addition. The testimony of any member of the public who provides public comment is also required to be noted in the official minutes.

These amendments to the law are intended to facilitate public attendance and participation at public meetings, and to foster better public understanding of an agency’s deliberations and decisions. These changes improve public access for Pennsylvanians generally and for members of the media, who regularly attend and cover public meetings in the communities they serve. By providing agenda information in advance, the law guarantees the public’s and media’s ability to be fully informed about anticipated agency discussions and official action before public meetings and to limit an agency’s ability to make significant decisions without prior notice to the public. For all these reasons, agendas should be specific and provide meaningful information about the issues that will be discussed or acted upon.

As always, this is not intended to be, nor should it be construed as, legal advice. Please contact your newspaper’s attorney or the PNA Legal Hotline at (717) 703-3080 with questions.