Q: Are local agencies, such as borough councils and school boards, allowed to hold a personnel executive session to discuss candidates for a vacancy in elected office? And on a related note, does the Right-to-Know Law allow agencies to deny access to candidate materials, such as letters of interest and candidate lists?

A: The personnel executive-session exception in Pennsylvania’s Sunshine Act cannot be used to discuss appointing or selecting someone to fill a vacancy in elected office. Existing candidate lists and application materials generally are subject to public access under the Pennsylvania Right to Know Law, but agencies may have defensible grounds to redact or protect particular information contained in them under another applicable statutory exemption, such as Social Security numbers, personal emails and phone numbers, and other personal identification information. 

Discussions and appointment votes

The Sunshine Act generally requires official action and deliberations by an agency quorum to occur at a public meeting unless a statutory exception applies. The Act defines a meeting as a prearranged gathering attended or participated in by a quorum for deliberation or official action. 65 Pa.C.S. § 704, 65 Pa.C.S. § 703

Section 708(a)(1), the personnel executive-session exception, permits private discussion of specified matters involving prospective, current or former public officers or employees. But it expressly states that the exception “does not apply to any meeting involving the appointment or selection of any person to fill a vacancy in any elected office.” 65 Pa.C.S. § 708

An agency cannot avoid the exclusion simply by labeling candidate-selection discussions “personnel.” Executive sessions cannot be used as a subterfuge to defeat the Act’s open-meeting requirements. 65 Pa.C.S. § 708

The Act does not, however, prohibit every individual conversation or instance of preliminary information gathering. Whether activity constitutes a covered meeting depends on quorum participation and whether the discussion is directed toward making a decision. 

The agency’s final appointment action must occur in public. Votes on resolutions and other matters covered by Section 705 must be publicly cast, and roll-call votes must be recorded. 65 Pa.C.S. § 708, 65 Pa.C.S. § 705

Public access to candidate records

Under the Right to Know Law, records in a local agency’s possession are presumed public unless an exemption, privilege or other applicable legal protection applies. When protected information can be separated from accessible information, the agency must redact the protected portions rather than withhold the entire record. 65 P.S. § 67.305, 65 P.S. § 67.706

Section 708(b)(7)(i) specifically excludes from its reference-letter exemption letters prepared in relation to appointing someone to fill a vacancy in elected office. That means the agency cannot rely on that particular exemption to withhold a qualifying letter, although another protection or redaction requirement may apply. 65 P.S. § 67.708

In Office of General Counsel v. Bumsted, 247 A.3d 71, 80–85 (Pa. Cmwlth. 2021), the court rejected withholding judicial-vacancy applications as employment applications of individuals “not hired” by an agency. The applicants sought appointment to public office, not agency employment. The court also rejected the asserted deliberative-process exemption for the factual application materials before it. 

But the Bumsted court did not order unconditional disclosure of every application. It remanded for notice to affected applicants and constitutional privacy balancing. The decision therefore supports access while requiring attention to protected personal information. 

Candidate submissions may contain protected information, such as Social Security numbers, personal telephone numbers, personal email addresses or personal financial information, information which can be redacted before public release. 

Requests should seek existing candidate lists, application logs, letters of interest and other existing records. The RTKL does not require an agency to create a candidate list it does not maintain. 65 P.S. § 67.705

When a court fills the vacancy

A separate rule governs a court of common pleas filling a vacancy in elected office under a statutory duty. Pennsylvania Rule of Judicial Administration 1908 makes the names of candidates under consideration and their written application materials public upon request. 

The rule expressly prohibits public release of: 

• The candidate’s Social Security number; 
• The candidate’s home address, personal telephone number and personal email address; and 
• Information concerning the name, home address or date of birth of children under 17. 

201 Pa. Code § 1908

The bottom line

Agencies cannot use the Sunshine Act personnel exception to conduct elected-vacancy selection meetings privately. Candidate records should not be withheld merely because they concern applicants, but other exemptions and privileges may apply. 

As always, this is not intended to be, nor should it be construed as legal advice. News media organizations should contact private counsel or the PNA Legal Hotline at (717) 703-3080 with concerns about the content of a particular political advertisement.